THIRD AMENDMENT TO AGREEMENT OF SALE AND ESCROW AGREEMENT
This Third Amendment to Agreement of Sale and Escrow Agreement (the
"Amendment") is made and entered into as of the 9th day of September, 1997,
among Continental Realty Advisors, Ltd., a Colorado corporation and Signet
Partners, a Colorado corporation (together, "Purchaser"), Xxxxxxxx Investors,
an Illinois limited partnership ("Seller"), and Near North National Title
Corporation ("Escrow Agent").
WITNESSETH
WHEREAS, Seller and Purchaser are parties to that certain Agreement of
Sale entered into as of May 22, 1997 (as heretofore amended, the "Agreement"),
pursuant to which Seller agreed to sell to Purchaser, and Purchaser agreed to
purchase from Seller, the "Property" (as defined in the Agreement);
WHEREAS, Seller, Purchaser and Escrow Agent are parties to that certain
Escrow Agreement entered into as of May 22, 1997 (as heretofore amended, the
"Escrow Agreement");
WHEREAS, the Agreement and the Escrow Agreement have previously been
amended by instruments dated and entered into as of June 4, 1997 and August 20,
1997;
WHEREAS, Seller and Purchaser now desire to further amend the Agreement
and the Escrow Agreement pursuant to the terms and provision set forth herein.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements contained herein, the payment of Ten and No/100 Dollars ($10) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller, Purchaser and Escrow Agent hereby agree as
follows:
1. All capitalized terms used in this Amendment, to the extent not
otherwise expressly defined herein, shall have the same meanings ascribed to
such terms in the Agreement or the Escrow Agreement.
2. Immediately following paragraph 7.1 of the Agreement, there shall be
added an additional paragraph numbered paragraph 7.1A, which shall state as
follows:
"7.1A Purchaser shall have the right, at Purchaser's discretion, to
terminate this Agreement if it shall not have obtained a written loan
commitment or commitments in amounts and on terms and conditions
acceptable to Purchaser prior to 5:00 P.M. Chicago time, October 20, 1997.
If Purchaser is able to obtain satisfactory loan commitments it shall give
Seller and Escrow Agent written notice that Purchaser has elected not to
exercise its termination rights hereunder. If such written notice is not
received by Seller pursuant to this Paragraph 7.1A prior to 5:00 P.M.
Chicago time, October 20, 1997, then Purchaser shall be deemed to have
elected to terminate this Agreement, in which case the Xxxxxxx Money
deposited by Purchaser shall be immediately paid to
Purchaser, together with any interest earned thereon, and neither
Purchaser nor Seller shall have any right, obligation or liability under
this Agreement, except for Purchaser's obligation to indemnify Seller and
restore the Property as more fully set forth in Paragraph 7.1.
3. Lines 8 through 10 of paragraph 7.5 of the Agreement are hereby
deleted in their entirety and the following is hereby inserted in lieu thereof:
"purchasing the Property subject to the Condemnation Action, and Seller
acknowledges that Purchaser shall be entitled to all proceeds of any
award, settlement or payment with respect to the Condemnation Action if
the Closing (defined below) should occur. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.5 shall
survive the Closing and the delivery of the Deed and termination of this
Agreement."
4. The first two (2) lines of paragraph 8 of the Agreement as previously
amended are hereby deleted in their entirety and the following is hereby
inserted in lieu thereof:
"8. CLOSING. The closing of this transaction (the "Closing") shall
be on November 19, 1997 (the "Closing Date"), at the offices of Title
Insurer, Xxxxxxxx,".
5. Paragraph 2 of the Escrow Agreement as previously amended is hereby
deleted in its entirety and replaced with the following:
2. Unless Escrow Agent has received written notice from Purchaser that
Purchaser has elected not it exercise its termination rights pursuant to
paragraph 7.1 of the Agreement (the "Paragraph 7.1 Acceptance Notice") on
October 1, 1997, and unless Escrow Agent has received written notice from
Purchaser that Purchaser has elected not to exercise its termination
rights pursuant to paragraph 7.1A of the Agreement (the "Paragraph 7.1A
Acceptance Notice") on October 20, 1997, then the Escrow Agent shall
promptly deliver to Purchaser the Xxxxxxx Money, together with all
interest xxxxxxx thereon, and this Escrow Agreement shall be null and
void.
6. Lines 1 and 2 of Paragraph 3 of the Escrow Agreement as previously
amended are hereby deleted in their entirety and the following is hereby
inserted in lieu thereof:
"3. Provided that Escrow Agent has received both the Paragraph 7.1
Acceptance Notice and the Paragraph 7.1A Acceptance Notice pursuant to
paragraph 2 above, on November 19, 1997, or at such other date as Seller
and Purchaser may,"
7. Except as amended herein, the terms and conditions of the Agreement
and the Escrow Agreement shall continue in full force and effect and are hereby
ratified in their entirety.
8. This Amendment may be executed in multiple counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same agreement.
9. The parties hereto agree and acknowledge that a facsimile copy of any
party's signature on this Amendment shall be enforceable against such party as
an original. The parties hereto further agree that this Amendment shall be
enforceable by and between the Purchaser and Seller prior to the execution of
this Agreement by Escrow Agent.
Executed as of the date first written above.
PURCHASER:
Continental Realty Advisors, Ltd., a Colorado
corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Its: Chairman
Signet Partners, a Colorado corporation
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Its: Exec. Vice President
SELLER:
XXXXXXXX INVESTORS, an Illinois limited partnership
By: BALCOR PARTNERS-XV, an Illinois partnership
Its general partner
By: RGF-BALCOR ASSOCIATES-II, an Illinois general
partnership, a general partner
By: THE BALCOR COMPANY, a Delaware corporation,
a general partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Its: Managing Director
ESCROW AGENT:
NEAR NORTH NATIONAL TITLE CORPORATION
By:
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Name:
Its:
