FIFTH AMENDMENT TO AGREEMENT OF SALE
THIS FIFTH AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is made as of
the 21st day of October, 1998 by and between XXXXXX XXXXX HOLDINGS, L.L.C., an
Illinois limited liability company ("Purchaser"), AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, not personally but as Trustee under Trust Agreement
dated April 24, 1987 and known as Trust Number 102332-03 ("Trustee") and
EVANSTON PLAZA INVESTORS A REAL ESTATE LIMITED PARTNERSHIP, an Illinois limited
partnership ("Beneficiary") (Trustee and Beneficiary are hereinafter together
referred to as "Seller").
WHEREAS, Seller and Purchaser entered into that certain Agreement of Sale
made as of December 8, 1997 ("Original Agreement"), as amended by the First
Amendment to Agreement of Sale ("First Amendment"), the Second Amendment to
Agreement of Sale dated July 24, 1998 ("Second Amendment"), the Third Amendment
to Agreement of Sale dated August 27, 1998 ("Third Amendment"), and the Fourth
Amendment to Agreement of Sale dated September 10, 1998 ("Fourth Amendment"
together with the Original Agreement, the First Amendment, the Second Amendment
and the Third Amendment, the "Agreement") pursuant to which Purchaser agreed to
purchase and Seller agreed to sell that certain property commonly known as
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, legally described on Exhibit A of the
Agreement;
WHEREAS, Seller and Purchaser desire to amend the Agreement to acknowledge
the satisfaction of certain conditions precedent to Closing;
WHEREAS, Seller and Purchaser desire to amend the Agreement to extend the
date for the satisfaction of the conditions precedent as set forth in Paragraph
14 of the Fourth Amendment;
WHEREAS, Seller and Purchaser desire to amend the Agreement to further
specify Seller's remedies under the Environmental Remediation Agreement
attached as Exhibit A to the Forth Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Defined Terms. All capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Agreement.
2. Acknowledgement of Satisfaction of Certain Conditions Precedent.
Paragraph 14(a) of the Fourth Amendment is hereby amended by deleting the
second, third and fourth grammatical sentences and inserting the following
language in lieu thereof:
"Purchaser acknowledges that it has approved the Revised RAP dated
October 20. 1998. Seller states that the Revised Rap dated October 20, 1998
has been submitted to the IEPA on October 21, 1998."
3. Extension of the Date for Satisfaction of the Conditions Precedent.
Seller and Purchaser agree that the date for satisfaction of the conditions
precedent contained in Paragraph 14 of the Fourth Amendment (as modified by the
Fifth Amendment) shall be November 30, 1998. Additionally, Seller and
Purchaser agree that if any of the Conditions Precedent set forth in Paragraph
14 of the Fourth Amendment (as modified by the Fifth Amendment) are not
fulfilled as of November 30, 1998, Purchaser or Seller may terminate this
Agreement by giving written notice of such termination to the other party by
December 4, 1998; provided however, that Purchaser shall have the right to
waive the satisfaction of the Conditions Precedent by written notice to Seller
on or before November 30 1998.
4. Specification of Remedies under the Environmental Remediation
Agreement. Paragraph 8 of Exhibit A, "Environmental Remediation Agreement,"
attached to the Fourth Amendment is hereby amended by adding the following
language to the end of the first grammatical sentence thereof:
"provided, however, Indemnitees agree not to seek damages in an
action against Freed under CERCLA for violation of, or inconsistency with, the
National Contingency Plan, 49 C.F.R. Part 300."
5. Full Force and Effect and Counterparts. Except as amended hereby,
the Agreement shall be and remain unchanged and in full force and effect in
accordance with its terms. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which, when taken
together shall constitute one and the same instrument. To facilitate the
execution of this Amendment, Seller and Purchaser may execute and exchange by
telephone facsimile counterparts of the signature pages, with each facsimile
being deemed an "original" for all purposes.
[EXECUTION PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of the
date first set forth above.
PURCHASER:
XXXXXX XXXXX HOLDINGS, L.L.C., an Illinois
limited liability company
By:
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Name:
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Its:
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SELLER:
TRUSTEE:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, not personally, but as Trustee under
Trust Agreement dated April 24, 1987 and known as
Trust No. 102332-03
By:
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Name:
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Its:
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BENEFICIARY:
EVANSTON PLAZA INVESTORS A REAL ESTATE LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Balcor Equity Partners-IV, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By:
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Name:
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Its:
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