SECOND AMENDMENT
TO AGREEMENT OF SALE
This Second Amendment (the "Amendment") is entered into as of September
24, 1996 between XXXXXX XXXXXXXXXX ("Purchaser") and AMERICAN WAY PARTNERS, an
Illinois limited partnership ("Seller").
RECITALS
Purchaser and Seller have entered into a certain Agreement of Sale dated
as of June 6, 1996 as amended pursuant to that certain First Amendment to
Agreement of Sale dated June 26, 1996 (the "Agreement") with respect to certain
property commonly known as American Way Mall located in Fairfield, New Jersey
(the "Property").
The Closing Date under the Agreement is presently scheduled for September
25, 1996 and Purchaser has requested that Seller extend the Closing Date to
January 25, 1997 in order to allow Purchaser additional time to negotiate the
possible purchase of a parcel of land adjacent to the Property (the "Adjacent
Parcel") and Seller is willing to so extend such Closing Date in accordance
with the terms of this Amendment.
NOW THEREFORE, in consideration of the above recitals and the covenants
contained herein, the parties hereby amend the Agreement, effective as of the
date hereof as follows:
1. Incorporation. The above recitals are incorporated into the
Agreement as though fully set forth herein.
2. Definitions. All capitalized terms not otherwise defined herein or
modified hereby shall have the same meanings as ascribed to them in the
Agreement.
3. Closing Date. Paragraph 9 of the Agreement is amended by
substituting "January 25, 1997" for "September 25, 1996" and all references to
as the Closing Date shall hereafter mean January 25, 1997.
4. Target Transfer. Paragraph 25 of the Agreement is amended by
substituting the date "February 25, 1997" in each place that "October 25, 1996"
appears.
5. Additional Consideration. In consideration of Seller extending the
Closing Date and executing the present Amendment, Purchaser further agrees with
Seller that:
(a) The Purchase Price for the Property is hereby increased as
follows; (i) if the closing occurs on or before November 1, 1996 the Purchase
Price shall be Five Million Three Hundred Thousand and no/100 Dollars
($5,300,000.00), (ii) if the closing occurs after November 1, 1996 but on or
before December 15, 1996 the Purchase Price shall be Five Million Four Hundred
Thousand and no/100 Dollars ($5,400,000.00), and (iii) if the closing occurs
after December 15, 1996 the Purchase Price shall be Five Million Five Hundred
Thousand and no\100 Dollars ($5,500,000.00). Contemporaneously with the
execution of this Amendment Purchaser shall pay and deliver to Seller by wire
transfer as additional Xxxxxxx Money the sum of Fifty Thousand and No/100
Dollars ($50,000.00). Said additional Xxxxxxx Money shall also be retained by
Seller following a default by Purchaser as provided under Paragraph 11 of the
Agreement and Seller acknowledges that the retention of the additional Xxxxxxx
Money and the Xxxxxxx Money and interest to be delivered to Seller pursuant to
Paragraph 5 of this Amendment constitutes Seller's sole remedy as to damages or
any other remedy as set forth in said Paragraph 11.
(b) Purchaser shall not be entitled to any credit to be deducted
from the Purchase Price as a result of the prepayment of rent by Steak & Ale of
New Jersey, Inc. as set forth at paragraph 3(a) of the Lease executed by Steak
& Ale of New Jersey, Inc. dated February 15, 1984.
(c) Seller shall not be required to obtain the consent of the New
Jersey Department of Transportation to the assignment of the Lease between
Seller and said party as Lessor, a copy of which has been attached to the
Agreement and Purchaser agrees to accept said Assignment without said consent
and in connection with the assignment of the Lease between Seller and VSH
Realty, a copy of which has been attached to the Agreement, Seller's only
obligation shall be to request the consent of VSH to said Assignment and in the
event said consent is not obtained, Purchaser shall accept the Assignment of
said Lease without said consent of VSH Realty.
(d) Purchaser acknowledges that it has received a survey dated June
21, 1996 of the Property and that it has accepted and approved all matters as
shown therein.
(e) Purchaser acknowledges that it has received First American Title
Insurance Commitment No. 101-ATA-5326 dated May 30, 1996 and that the title to
the Property shall be conveyed to Purchaser subject to Schedule B, Section II,
Exceptions 10 through 20 as described therein as Permitted Exceptions provided
that in connection with exception 20 same shall only apply to tenants under
existing leases or under New Leases as defined in the Agreement. Seller agrees
that it will also request the Title Insurer to also insure, at the expense of
Purchaser, the easement recorded in Book 5069 page 936 for the benefit of
Purchaser. If the Title Insurer is unable to insure said easement, Purchaser
acknowledges and agrees that said inability will not be a ground for delaying
or changing the Closing Date and Purchaser will complete the sale and transfer
of the Property without the benefit of said title insurance. Any additional
title exceptions raised by the Title Insurer in connection with insuring said
easement shall be considered Permitted Exceptions.
(f) Purchaser acknowledges that the conditions concerning a
contiguity endorsement and 3.1 zoning endorsement set forth in paragraph 33 of
the Agreement have been waived by Purchaser.
(g) Nothing contained in this Amendment shall be construed as
allowing Purchaser to any further extension of the Closing Date including but
not limited to Purchaser's inability to consummate the acquisition of the
Adjacent Parcel on or before the Closing Date as set forth herein.
5. Escrow Agreement. In addition, Purchaser and Seller agree that by
their execution of the present Amendment, a copy of which shall be delivered by
Seller after its execution to the Escrow Agent, that the Escrow Agent is hereby
empowered and directed to deliver to Seller immediately all Xxxxxxx Money,
together with interest accrued thereon being held by Escrow Agent under the
Escrow Agreement to be applied against the Purchase Price at closing or
retained by Seller pursuant to Paragraph 11 of the Agreement.
6. Continuation. Except as expressly set forth herein, the Agreement
remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
Executed by Purchaser on PURCHASER:
, 1996
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/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Executed by Seller on SELLER:
9/26 , 1996
------------------ AMERICAN WAY PARTNERS, an Illinois
limited partnership
By: BALCOR CURRENT INCOME PARTNERS-85,
an Illinois general partnership
By: THE BALCOR COMPANY, a Delaware
corporation, Its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Authorized Representative