AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT
This Amendment No. 1 to Purchase and Sale Agreement ("Amendment") is made
as of the 13th day of July, 2004 between by and between LB 000 XXXXX XXXX XXXXXX
LLC and LB 000 XXXXXXX XXXXX LLC (each and collectively, a "Seller"), having an
address in care of TriMont Real Estate Advisors, Inc., Monarch Tower, 0000
Xxxxxxxxx Xxxx XX, Xxxxx 0000, Xxxxxxx, XX 00000 and MAXUS REALTY TRUST, INC.
and its permitted assigns, 000 Xxxxxx Xxxx, Xxxxx Xxxxxx Xxxx, XX 00000
("Buyer").
Recitals
A. Seller and Buyer entered into that certain Purchase and Sale Agreement
(the "Agreement") dated as of June 16, 2004. The Agreement provides, among other
things, for a Due Diligence Period (as defined in the Agreement) that (pursuant
to letter agreement among the parties) currently expires July 15, 2004.
B. Buyer has requested that Seller deliver a commitment for title insurance
(the "Commitment") for the Properties (as defined in the Agreement). Buyer has
requested an extension of the Due Diligence Period to review the Commitment
pursuant to Section 11 of the Agreement. Seller has requested that Buyer
otherwise affirm that it will not deliver a Due Diligence Termination Notice
other than on account of any encumbrance, lien or exception on the Real Property
that requires corrective or curative action.
C. Seller and Buyer each are agreeable to such amendments subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of these premises, the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Due Diligence Termination. Except as otherwise provided herein, Buyer
has reviewed the Property and is satisfied with the condition of the Property
and therefore the Due Diligence Period has terminated without delivery of a Due
Diligence Termination Notice, subject to the remainder of this paragraph.
Notwithstanding the foregoing, the Deposit (including the Additional Deposit,
when delivered) shall remain refundable and Buyer shall not be obligated to
purchase the Property unless and until such time as the following each shall
have occurred: (a) Buyer shall have received the Commitment; (b) two (2)
business days shall have passed after Buyer's receipt of the Commitment (the
"Commitment Deadline") and (c)(i) prior to the expiration of the Commitment
Deadline, Buyer shall not have delivered written notice of any title
encumbrance, lien or exception (any, a "Title Issue") on the Real Property that
requires corrective or curative action pursuant to Section 11(d) of the
Agreement (a "Title Issue Notice"), or (ii) if Buyer shall have delivered a
Title Issue Notice prior to the expiration of the Commitment Deadline, Seller
shall have removed the Title Issue or procured a Closing Title
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Policy in accordance with Section 11(d) of the Agreement (it being understood
and agreed by the parties that if Seller shall not have done so in accordance
with Section 11(d) of the Agreement then the remaining provisions of Section
11(d) shall apply with respect to the parties' rights andobligations under the
Agreement as amended by this Amendment). Without limiting the foregoing, Buyer
shall deliver the Additional Deposit not later than July 22, 2004.
2. Capitalized Terms. Capitalized terms used in this Amendment and not
expressly defined in this Amendment shall have the meanings as ascribed to them
in the Agreement.
3. Effect of Amendment. Except as otherwise expressly provided herein, this
Amendment shall not, by implication or otherwise, limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the parties under the
Agreement, nor alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Agreement, all
of which are ratified and affirmed in all respects and shall continue in full
force and effect. All references to the Agreement in this Amendment or in any
other instrument, agreement or document shall hereafter be deemed to refer to
the Agreement as amended by this Amendment. Without limiting the preceding
sentences of this paragraph, TIME IS OF THE ESSENCE in the performance of the
Agreement. This Amendment is not intended to be a novation.
4. Execution by Facsimile. Execution and delivery of this Amendment by
facsimile signature is effective. This Amendment may be executed in
counterparts, each of which shall be deemed an original.
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[signature page to Amendment No. 1 to Purchase and Sale Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
Signed, Sealed and Delivered BUYER:
in the Presence of: MAXUS REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ ---------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
Its: Attorney Its: President
SELLER:
LB 000 XXXXX XXXX XXXXXX LLC
By: /s/ Xxxx Xxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxx
Its: Authorized Signatory
Signed, Sealed and Delivered SELLER:
in the Presence of: LB 000 XXXXXXX XXXXX LLC
By: /s/ Xxxxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
------------------------- -------------------------
Name: Xxxxxxxxx Xxxxxx Name: Xxxx Xxxxxxxxx
Its: Assistant to Its: Authorized Signatory
Xxxx X. Xxxxxxxxx, Esq.
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