REINSTATEMENT OF,
AND FIRST AMENDMENT TO,
AGREEMENT OF SALE
THIS REINSTATEMENT OF, AND FIRST AMENDMENT TO, AGREEMENT OF SALE (this
"First Amendment"), is entered into as of the 20th day of December, 1996, by
and between STEEPLECHASE PARTNERS LIMITED PARTNERSHIP, an Illinois limited
partnership ("Seller"), and INFINITY ACQUISITIONS, L.L.C., an Illinois limited
liability company (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller entered into that certain Agreement of Sale
dated as of November 25, 1996 (the "Agreement"), for the purchase and sale of
certain real property located in Lexington, Kentucky and commonly known as
Steeplechase Apartments (the "Property"). Capitalized terms not defined herein
shall have the meanings ascribed to such terms in the Agreement.
WHEREAS, Purchaser has heretofore delivered to Seller a Due Diligence
Termination Notice dated December 2, 1996 (the "Termination Notice"),
terminating the Agreement.
WHEREAS, Purchaser and Seller desire to reinstate and amend the Agreement
upon the terms and conditions more fully set forth herein.
WHEREAS, Seller has executed and Purchaser intends to execute and deliver
that certain Escrow Agreement (the "Escrow Agreement") by and between Seller,
Purchaser and Charter Title Company (the "Escrowee"), upon execution of this
First Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereby as
agree as follows:
1. The Agreement is hereby reinstated and shall remain in full force and
effect as if the Termination Notice had not been delivered, except that the
Agreement shall be modified by the terms and conditions hereinafter set forth.
2. Purchaser hereby acknowledges that the Inspection Period has expired
and hereby waives its right to terminate the Agreement pursuant to Paragraph
7.1 thereof.
3. The reference to "Ten Million Six Hundred Thousand and No/100 Dollars
($10,600,000.00)" contained in the second line of Paragraph 1 is hereby deleted
and inserted in lieu thereof is the following: "Ten Million One Hundred
Thousand and No/100 Dollars ($10,100,000.00), subject to the terms of Paragraph
25".
4. The reference to January 13, 1997 in the first sentence of Paragraph
8 is hereby deleted and inserted in lieu thereof is "February 13, 1997." After
the end of the first sentence to Paragraph 8, the following clause is hereby
added: "; provided, however, that the Closing Date shall be extended to March
17, 1997 upon the delivery by Purchaser at least five (5) business days prior
to the Closing Date of (i) $100,000 additional Xxxxxxx Money to the Escrow
Agent, and (ii) notice to Seller that Purchaser intends to so extend the
Closing Date."
5. The second and third paragraphs of Paragraph 25 are hereby deleted,
and are hereby replaced with the following paragraphs:
"Purchaser has an option to assume the Loan Documents, exercisable as
follows: if Purchaser elects to assume the Loan Documents, then Purchaser
shall obtain on or before the date which is five (5) business days prior
to the Closing Date: Lender's consent, in writing, to (i) the assumption
by Purchaser of Seller's obligations under the Loan Documents on terms
reasonably acceptable to Purchaser and (ii) a release by Lender of Seller
from any liability under the Loan Documents (together, the "Lender
Consent"). Purchaser acknowledges that for purposes of this Agreement the
Lender Consent shall be deemed reasonable if it provides for the
assumption by Purchaser of Seller's obligations under the Loan Documents
on terms and conditions which do not expand the existing obligations under
the Loan Documents, including, without limitation, the payment by
Purchaser in connection with obtaining the Lender Consent of the
application fee set forth in the Loan Documents or in the absence of a
specified amount in the Loan Documents a reasonable application fee
imposed by Lender, an assumption fee in a maximum amount of one percent
(1%) of the outstanding principal balance of the Notes and the reasonable
costs and expenses of the Lender, including Lender's $1,500 application
fee for each of the Mortgages (a total of $4,500). Purchaser shall keep
Seller advised of and allow Seller to participate in the process of
obtaining the Lender Consent and Seller agrees to cooperate with Purchaser
(at no expense to Seller) in Purchaser's efforts to obtain the Lender
Consent. Purchaser shall immediately notify Seller upon obtaining the
Lender Consent.
If Purchaser elects not to assume the Loan Documents, or if, on or
before five (5) business days prior to the Closing Date, Purchaser is
unable to obtain the Lender Consent, then this Agreement shall not
terminate, but the Agreement shall be subject to the following conditions:
(i) the Purchase Price shall equal Ten Million Four Hundred Thousand and
No/100 Dollars ($10,400,000.00), (ii) Purchaser shall have no obligation
to assume the Loan Documents from Seller, (iii) the Closing Date shall be
extended for a period of thirty (30) days to afford Seller time to notify
Lender of Seller's intent to pay off the Notes, and (iv) Purchaser's
ability to obtain financing for its obligations under this Agreement shall
not be a contingency to Purchaser's performance of this Agreement."
6. Upon execution of this First Amendment by Purchaser, Purchaser shall
execute the Escrow Agreement and deliver the Escrow Agreement and the Xxxxxxx
Money to the Escrowee, to be held in escrow by and in accordance with the
provisions of the Escrow Agreement.
7. Except as amended and modified hereby, each of the Agreement and the
Escrow Agreement shall be and remain unmodified and in full force and effect in
accordance with its terms, and each and every one of its provisions, as amended
and modified by this First Amendment, are hereby adopted, ratified and
affirmed. In the event of any conflict between the Agreement, or any other
document, and this First Amendment, the terms, conditions and provisions hereof
shall govern.
8. This First Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed by their authorized representatives as of the day and year first
above written.
PURCHASER:
INFINITY ACQUISITIONS, L.L.C., an Illinois
limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Its: Manager
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SELLER:
STEEPLECHASE PARTNERS LIMITED PARTNERSHIP,
an Illinois limited partner
By: Steeplechase Partners, Inc., an Illinois
corporation, its general partner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Its: Authorized Rep
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