THIRD AMENDMENT TO PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AGREEMENT ("Third Amendment") is made as
of the 9th day of August, 2001, by and between WATERTON RAINTREE, LLC, a
Delaware limited liability company ("Seller") and KelCor, Inc., a Missouri
corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer executed that certain Purchase Agreement dated as
of June 7, 2001, as amended by that certain First Amendment to Purchase
Agreement dated as of July 11, 2001 and that certain Second Amendment to
Purchase Agreement dated as of July 27, 2001 (collectively, the "Original
Contract") pursuant to which Seller agreed to sell to Buyer, and Buyer agreed to
purchase from Seller, that certain parcel of land and improvements commonly
known as the Barrington Hills Apartments, located in Little Rock, Arkansas (the
"Property"); and
WHEREAS, the Original Contract automatically terminated as a result of the
failure of the Buyer to deliver the Due Diligence Notice on or before the
expiration of the Due Diligence Period in accordance with Paragraph 5 of the
Original Contract.
WHEREAS, the parties hereto desire to reinstate and amend the Original
Contract in accordance with the terms and conditions specified herein.
NOW, THEREFORE, in consideration of the foregoing covenants and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. The foregoing recitals are hereby incorporated into this
Third Amendment. All capitalized terms not defined herein shall have the same
meaning ascribed to them in the Original Contract. The Original Contract as
hereby amended shall be referred to collectively as the "Contract" and all
references in the Original Contract to "this Agreement", "the Agreement," or
"herein" or similar terms shall mean the Original Contract, as amended by this
Third Amendment.
2. Reinstatement. The Original Contract is hereby reinstated as of the date
hereof.
3. Purchase Price. Paragraph 2 of the Original Contract is hereby modified
to reduce the Purchase Price by One Hundred Thousand and 00/100 ($100,000) to
Seven Million Fifty Thousand and 00/100 ($7,050,000.00).
4. Due Diligence. Buyer hereby confirms that it has completed its due
diligence and hereby waives its right to terminate the Contract set forth in
Paragraph 5. Buyer's execution of this Third Amendment shall serve as the timely
delivery of the Due Diligence Notice.
5. Additional Deposit. Within two (2) business days of the complete
execution of this Third Amendment, Buyer shall deliver to the Title Company the
Additional Deposit.
6. Lender Approval Period. Paragraph 3(D)(2) of the Original Contract is
hereby modified to change the Lender Approval Period to August 31, 2001. If
Buyer fails to obtain the Lender Approval by such date, Buyer shall have the
right to terminate the Agreement in accordance with the terms of Paragraph
3(D)(2).
7. Closing Date. Paragraph 3B of the Original Contract is hereby modified
to change the Closing Date to September 18, 2001. Buyer retains the right
pursuant to Paragraph 3(D)(5) to extend the Closing Date.
8. Counterparts; Facsimile Execution. The parties hereto agree that: (a)
this Third Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which counterparts together shall
constitute one and the same instrument, and that executed counterpart originals
shall be satisfactory for purposes of enforcing this Third Amendment; and (b)
original signatures transmitted via facsimile shall be acceptable for purposes
of executing this Third Amendment. If counterpart originals are executed and/or
original signatures are transmitted by facsimile, the parties hereto shall
endeavor in good faith to deliver to each other executed counterpart originals
within ten (10) days from the date hereof.
9. Effect of Modification. Except as expressly modified by this Third
Amendment, the terms and conditions of the Original Contract shall otherwise
remain in full force and effect, without change.
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IN WITNESS WHEREOF, the parties hereto have duly executed and sealed this
Third Amendment as of the date first above written.
SELLER:
WATERTON RAINTREE, LLC,
a Delaware limited liability company
By: Waterton Residential Property Fund II, L.P.
Its managing member
By: Waterton Fund II Managers, L.P.
Its general partner
By: VS Managers, L.L.C.
Its general partner
By:/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Member
BUYER:
KelCor, INC.,
a Missouri corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
