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Exhibit 10.2
FIRST AMENDMENT TO REAL ESTATE SALE CONTRACT
THIS FIRST AMENDMENT TO REAL ESTATE SALE CONTRACT (the "First
Amendment") is made as of May 30, 1997, by and between REALTY REFUND TRUST
("Seller") and XXXX XX REALTY GROUP, INC., or its nominee, a to be formed
venture, as agent for the purchaser ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Real Estate Sale
Contract ("Contract") relative to the purchase and sale of certain real estate
commonly known as 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx; and
WHEREAS, by notice to Seller dated April 27, 1997, Purchaser exercised
its right to extend the Closing Date to June 6, 1997, and in connection
therewith increased to $200,000.00 the principal amount of the xxxxxxx money
escrow deposit in the Escrow with the Escrow Agent; and
WHEREAS, the parties desire to amend the Contract on the terms,
provisions and conditions contained herein; and
WHEREAS, unless otherwise defined herein, the capitalized terms used
herein shall have the same meanings as defined in the Contract.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties hereto agree as follows:
1. CLOSING DATE. Section 6(a) of the Contract is hereby modified to
read as follows:
(a) The Closing shall occur at the offices of Chicago Title
and Trust Company in Chicago, Illinois on August 29, 1997. Purchaser
shall receive possession of the Property on the Closing Date. The
Closing shall be conducted through a customary "New York style" closing
escrow the cost of which shall be divided equally between Seller and
Purchaser.
2. EXTENSION PAYMENT. In consideration for Seller granting Purchaser an
extension in the Closing Date, Purchaser shall pay to Seller $300,000.00 (the
"Extension Payment"). The Extension Payment shall be made to Seller as follows:
(a) $200,000 in the form of a transfer of the Xxxxxxx Money from the Escrow
Agent to Seller immediately upon execution by Seller and Purchaser of this First
Amendment (said sum, when received by Seller, to be partial receipt of the
Extension Payment), and (b) Purchaser shall pay Seller $100,000 by check or wire
transfer on or before June 16, 1997. Accordingly, the parties or their attorneys
shall promptly sign and deliver appropriate instructions to the Escrow Agent
directing her to deliver to Seller the $200,000 in
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Xxxxxxx Money on deposit, and any interest thereon to be returned to Purchaser.
If the transaction contemplated by the Contract closes, the Extension Payment
shall be applied against the Purchase Price, and if the transaction does not
close due to no fault of Seller, the Extension Payment shall be retained by
Seller subject to the provisions of the Contract. All references to "Xxxxxxx
Money" in Section 11 of the Contract shall hereafter be changed to "Extension
Payment" as the term is defined in this First Amendment.
3. PURCHASER'S CONDITIONS AND SELLER'S REPRESENTATIONS AND WARRANTIES.
(a) Section 5(a) of the Contract is hereby deleted.
(b) Notwithstanding anything to the contrary contained in
Sections 3 and 5(b) of the Contract, Seller covenants that all representations
and warranties contained in subsections a, c, o, p and q of Section 3 shall be
true, complete and accurate as of the Closing Date, and Purchaser's obligation
to purchase the Property shall be expressly conditioned upon such
representations and warranties contained in subsections a, c, o, p and q of
Section 3 being true and correct as of the Closing Date.
(c) Notwithstanding anything to the contrary contained in
Sections 3 and 5(b) of the Contract, the representations and warranties
contained in subsections d, i, l, m and n of Section 3 of the Contract are
hereby deleted.
(d) Notwithstanding anything to the contrary contained in
Sections 3 and 5(b) of the Contract, Purchaser's obligation to purchase the
Property shall not be conditioned upon the representations and warranties
contained in subsections b (which representation is being made as of the date
hereof only), e (except as to any proceedings or allegations relating to the
building facade, which representation is being made as of the date hereof), f, g
(which representation is being made as of the date hereof only), h, j or k of
Section 3 being true and correct as of the Closing Date; however, Seller hereby
agrees to indemnify Purchaser and its successors, assigns, affiliates,
directors, officers, employees and partners, and defend (with counsel reasonably
acceptable to Purchaser) and hold each of them harmless from any and all claims,
liabilities, damages, and penalties and any and all loss, cost, or expense
incurred by any of the foregoing, incident to, resulting from, or in any way
arising out of any breach of any representation, warranty or covenant of Seller
contained herein or in the Contract, but only to the extent provided in Section
11(b) of the Contract and if a claim is made within the time limits set forth in
Section 3 of the Contract, and Purchaser shall be entitled to satisfy such
claims from the closing proceeds; further provided however, that Seller shall
not indemnify Purchaser for any monetary defaults of any Tenants.
Subsection f of Section 3 of the Contract is hereby modified to provide
that Seller shall not initiate any requests, applications or proceedings to
alter or modify the zoning or other use restrictions applicable to the Property.
Subsection h of Section 3 of the Contract is hereby modified to provide that
Seller shall not cause any violation of any Environmental Laws on the Property,
and shall not cause, or permit any third party to cause, any Hazardous Materials
to be located on the Property.
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(e) The last sentence in Section 5 of the Contract is hereby
deleted.
(f) Purchaser hereby acknowledges and agrees that, as a result
of its due diligence investigation of the Property, and based on the information
and documents that have been forwarded to Purchaser by Seller, as of the date
hereof, is not aware of any information that would give rise to a breach of any
of Seller's representations contained herein as a right of Purchaser to
terminate the Contract. Seller agrees to promptly deliver to Purchaser any
Documents (or any modifications or amendments thereto) not previously furnished
to Purchaser that it shall receive.
(g) If prior to the Closing, Seller fails to perform all of
its obligations under this Agreement in materially strict accordance with their
terms for any reason (except for a Permitted Termination and except as may arise
as a result of the default of Purchaser and except the Seller shall not be
obligated to make any further repairs to or replacements in respect of the
building facade), Seller shall be in default under this Agreement and Purchaser
shall still be obligated to close the transaction and Purchaser shall be
entitled to Purchaser's actual damages occasioned from such default, provided
however, if any of the representations or warranties of Seller contained in
subsections a, c, o, p and q of Section 3 shall not be true and correct as of
the Closing Date or if Seller is unable to deliver the Title Policy at Closing,
then Purchaser shall be entitled to a return of the Extension Payment, together
with any and all interest earned thereon, and an additional amount equal to the
Extension Payment as liquidated damages, or the remedy of specific performance.
(h) Notwithstanding anything to the contrary contained in
Sections 3 and 5(b) of the Contract, as modified by this Section 3, (i) nothing
herein shall relieve Seller of its duty to defend any claim of violation of any
law with respect to the Property, and (ii) Seller shall not perform any act, or
fail to perform any act, that would prejudice Purchaser's rights to enforce any
legal remedy that Purchaser may have after Closing against a Tenant in default
under the terms of a Lease.
4. RENT ROLL. The following paragraph is inserted as Section 3(r) of
the Contract:
(r) Attached hereto as EXHIBIT A is a true, complete and
correct copy of the most recent rent roll of the Tenants. Seller has delivered
to Purchaser copies of all Leases, and except as set forth in the documents
delivered to Purchaser, none of the Leases have been modified, amended or
altered in writing or otherwise, except as permitted as pursuant to Section 8(c)
of the Contract.
5. NO OTHER CHANGES. In all other respects, the terms and conditions of
the Contract are hereby affirmed by the Parties, and any provisions of the
Contract not inconsistent with the terms set forth herein shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the day and year first set forth above.
PURCHASER:
XXXX XX REALTY GROUP, INC., as agent
for the Purchaser
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
SELLER:
REALTY REFUND TRUST
By: /s/ Xxxx Xxxxxxxx
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Print Name: Xxxx Xxxxxxxx
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Its: V.P
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