REINSTATEMENT OF AND
FIRST AMENDMENT TO
AGREEMENT OF SALE
THIS REINSTATEMENT OF AND FIRST AMENDMENT TO AGREEMENT OF SALE made this
day of December, 1996, by and between CLOVER APPRECIATION PROPERTIES I, L.P., a
Delaware Limited Partnership, of 00 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx
00000, hereinafter referred to as Seller, and STRAND CAPITAL INC., a Texas
Corporation, of Vancouver Centre, 000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0, hereinafter referred to as Buyer.
WHEREAS, Seller and Buyer entered into an Agreement of Sale dated November
18, 1996 for the sale from Seller to Buyer of Royal Wood Apartments, situate,
lying and being in the 00xx Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxxxx; and,
WHEREAS, by letter dated December 13, 1996, Buyer terminated the Agreement
of Sale; and,
WHEREAS, Buyer and Seller desire to reinstate the Agreement of Sale and to
amend herein certain terms of the Agreement of Sale,
NOW, THEREFORE, the Seller and the Buyer intending to be legally bound
hereby, do covenant and agree with each other as follows:
1. The Agreement of Sale is hereby reinstated and agreed to be in full
force and effect.
2. Paragraph 2 of the Agreement of Sale is hereby amended to read as
follows:
"2. PURCHASE PRICE: The total purchase price which the Buyer
agrees to pay to the Seller and which the Seller agrees to accept for the
Premises is the sum of SEVEN MILLION FOUR HUNDRED FORTY-THREE THOUSAND
($7,443,000.00) DOLLARS, which purchase price shall be paid by Buyer to
Seller as follows:
(a) (i) The sum of ONE HUNDRED THOUSAND ($100,000.00)
DOLLARS (the "Initial Deposit") simultaneously with the execution and
delivery of this Agreement and the further sum of FIFTY THOUSAND
($50,000.00) DOLLARS (the "Second Deposit") on or before February 14,
1997. The Initial Deposit shall be hereinafter referred to as the
"Deposit" and the Second Deposit, when made, shall be included within the
definition of the "Deposit". The Deposit shall be deposited with the
Escrow Agent, as hereinafter defined, to be held subject to the terms and
conditions hereinafter set forth, and shall be treated as payment on
account of the purchase price if Closing is made for the Premises.
(ii) In the event Closing is extended as hereinafter
provided, then the further sum of TWO HUNDRED THOUSAND ($200,000.00)
DOLLARS (the "Additional Deposit") on or before February 18, 1997. The
Additional Deposit shall be included within the definition of the
"Deposit". The Additional Deposit shall be deposited with the Escrow
Agent, as hereinafter defined, to be held subject to the terms and
conditions hereinafter set forth, and shall be treated as payment on
account of the purchase price if Closing is made for the Premises.
(b) At the time of Closing, as hereinafter provided, the
further sum of SEVEN MILLION TWO HUNDRED NINETY-THREE THOUSAND
($7,293,000.00) DOLLARS on account of the purchase price, subject to
appropriate pro-rations and credits provided for in this Agreement, at
Seller's option, in cash, by certified check or by federal funds wire
transfer; or if Closing is extended as hereinafter provided, at the time
of the extended date of Closing, as hereinafter provided, the further sum
of SEVEN MILLION NINETY-THREE THOUSAND ($7,093,000.00) DOLLARS on account
of the purchase price, subject to appropriate pro-rations and credits
provided for in this Agreement, at Seller's option, in cash, by certified
check or by federal funds wire transfer."
3. Paragraph 3 of the Agreement of Sale is hereby amended to read as
follows:
"3. CLOSING: Closing shall take place on or before February 28, 1997
("Closing"), at 10:00 o'clock A.M. at the offices of Sherman, Silverstein,
Xxxx, Xxxx & Xxxxxxxx, P.A., 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxx Xxxxxx 00000. Buyer shall have the right to extend the date of
Closing to on or before March 28, 1997 by serving written notice thereof
upon the Seller on or before February 18, 1997 and simultaneously
therewith delivering to the Escrow Agent the Additional Deposit required
by Paragraph 2(a)(ii). The said time for Closing and the said extended
time for Closing as well as all other terms set forth in this Agreement
are hereby agreed to be of the essence of this Agreement. Tender of an
executed Deed is hereby waived.
4. Paragraph 5(c) of the Agreement of Sale is hereby amended to read as
follows:
"(c) In addition to and not in limitation of the rights and
privileges granted to the Buyer hereinabove in Paragraph 5(b), for a
period from the date hereof to January 15, 1997, Buyer is granted
the right to conduct a physical inspection (including a lead-based
paint and/or lead-based paint hazard inspection and/or risk
assessment) of the Premises and all personal property located
thereon in such a manner as not to inconvenience the tenants and to
review all leases, books and records pertaining to the Premises. At
any time during said inspection period, Buyer shall have the right
to cancel and terminate this Agreement, in its sole discretion, by
serving written notice thereof upon Seller on or before the
expiration of said inspection period; if Buyer elects to terminate
this Agreement as permitted herein, then this Agreement shall be
cancelled and terminated and the Deposit shall be returned to Buyer
and neither party hereunder shall have any further liability or
obligation to the other hereunder except with respect to the
indemnifications contained in this Paragraph 5(c), Paragraph 5(b)
and Paragraph 22; if Buyer fails to exercise its right to terminate
this Agreement as permitted herein, then said right shall
automatically lapse, terminate and become null and void. Buyer
shall indemnify and save harmless the Seller from any liability,
loss, cost or expense (including reasonable attorney's fees) arising
from or in connection with such inspection and/or entry upon the
Premises; said indemnification shall survive Closing and/or
termination of this Agreement."
5. Paragraph 8(b) of the Agreement of Sale is hereby deleted.
6. The heading of Paragraph 9 of the Agreement of Sale is hereby amended
to read "CONTINGENCIES:", the existing Paragraph 9 shall be designated as
subparagraph "(a)" and Paragraph 9 is hereby amended to include the following
additional subparagraph (b):
"(b) This Agreement is contingent upon Buyer obtaining, at
its sole cost and expense, a written commitment for a Xxxxxx Mae DUS
First Mortgage Loan in the sum of SEVEN MILLION ($7,000,000.00)
DOLLARS, representing eighty (80%) percent of the Purchase Price
($5,950,000.00) and eighty (80%) percent of $1,350,000.00, the cost
of Buyer's proposed capital improvements ($1,050,000.00), at the
then prevailing rate of interest (hereinafter referred to as the
"Commitment").
The Buyer, at its sole cost and expense, shall promptly apply
for the Commitment, diligently pursue same and use reasonable
efforts to obtain same. The Buyer shall supply all necessary
information and pay all fees required by the lender in connection
with applying for and obtaining said Commitment. Immediately upon
obtaining the Commitment, Buyer shall deliver a copy thereof to the
Seller.
In the event Buyer is unable to obtain the Commitment on or
before February 14, 1997, Buyer shall serve written notice thereof
upon Seller by said date and this Agreement shall be cancelled and
terminated, and the Deposit shall be returned to the Buyer and
neither party shall have any further liability or obligation to the
other hereunder except with respect to the indemnifications
contained in Paragraphs 5(b), 5(c) and 22."
7. Except as specifically amended herein, the Agreement of Sale shall be
and remain in full force and effect in accordance with its original terms.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Reinstatement of and First Amendment to Agreement of
Sale to be signed and sealed the day and year first above written.
SIGNED, SEALED AND DELIVERED CLOVER APPRECIATION PROPERTIES I,
IN THE PRESENCE OF: L.P.,
A Delaware Limited Partnership
BY: CROWN MANAGEMENT CORPORATION,
A New Jersey Corporation,
General Partner
BY:/s/Xxxxxx Xxxxxxx
XXXXXX XXXXXXX, Vice President
STRAND CAPITAL INC.,
A Texas Corporation
BY:/s/ Xxxxx X. Xxxxxxxx
XXXXX X. XXXXXXXX, Senior
Vice President
