FIFTH AMENDMENT TO AGREEMENT OF SALE AND ESCROW AGREEMENT
This Fifth Amendment to Agreement of Sale and Escrow Agreement (the
"Amendment") is made and entered into as of the 17th day of October, 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, August 20,
1997, September 9, 1997, and September 30, 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. The first three lines of paragraph 7.1 of the Agreement (as previously
amended by the September 30, 0000 Xxxxxx Xxxxxxxxx to Agreement of Sale and
Escrow Agreement), are hereby deleted and replaced with the following language:
"7.1 As used in this Agreement the term "Inspection Period" shall mean a
period of time beginning on the date of this Agreement and ending: (a) as
to all matters and conditions other than Purchaser's review of and
satisfaction with the Existing Survey, the Updated Survey and the Title
Commitment (whether in its current condition or as updated) -- October 1,
1997; and (b) as to Purchaser's review of and satisfaction with the
Existing Survey, the Updated Survey and the Title Commitment (whether in
its current condition or as updated )--October 24, 1997. Purchaser and
the agent, engineers"..
3. Paragraph 7.1A of the Agreement (as adopted the parties and set forth
in the September 9, 1997 Third Amendment to Agreement of Sale and Escrow
Agreement) is hearby deleted and replaced with the following landuage:
"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 Purchase prior to 5:00 P.M. Chicago time, October 24, 1997.
If purchaser is able to obtain satisfactory loan commitments it shall give
Seller and Escrow Agent written notice that Purchase 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 24, 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 an interest xxxxxxx 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
4. Paragraph 2 of the Escrow Agreement (as set forth in the September 30,
0000 Xxxxxx Xxxxxxxxx to Agreement of Sale and Escrow Agreement ) 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 to exercise its termination rights pursuant to
paragraph 7.1(a) of the Agreement (the "Paragraph 7.1(a) Acceptance
Notice") on October 1, 1997, and Escrow Agent has received written notice
from Purchaser that Purchaser has elected not to exercise its termination
rights pursuant to paragraph 7.1(b) of the Agreement (the "Paragraph
7.1(b) Acceptance Notice") on October 24, 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 "Financing Acceptance Notice") on October 24, 1997, then
the Escrow Agent shall promptly deliver to Purchaser the Xxxxxxx Money,
together with all interest earned thereon, and this Escrow Agreement shall
be null and void.
5. 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.
6. 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.
7. 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:
-------------------------------
Name:
Its:
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/Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Its: Authorized Representative
ESCROW AGENT:
NEAR NORTH NATIONAL TITLE CORPORATION
By:
-----------------------------
Name:
Its:
