FOURTH AMENDMENT TO AGREEMENT OF SALE
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THIS FOURTH AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is made as
of the 10 day of September, 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
("Original Agreement") made as of December 8, 1997, as amended by the First
Amendment to Agreement of Sale dated May 28, 1998 ("First Amendment"), the
Second Amendment to Agreement of Sale dated July 24, 1998 ("Second Amendment")
and the Third Amendment to Agreement of Sale dated August 27, 1998 ("Third
Amendment" together with the Original Agreement, the First Amendment and the
Second 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 provide
that the Purchase Price shall be reduced to Three Million Five Hundred Thousand
and No/100 Dollars ($3,500,000.00) at Closing;
WHEREAS, Seller and Purchaser desire to amend the Agreement to establish
conditions precedent to and to set a Closing Date;
WHEREAS, Seller and Purchaser desire to amend the Agreement to acknowledge
the satisfaction and/or waiver of certain conditions precedent to Closing;
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. Purchase Price. Paragraph 1 of the Agreement of Sale is hereby
amended by deleting the sum of "Seven Million Two Hundred Thousand And No/100
Dollars ($7,200,000.00)" and by inserting the sum of "Three Million Five
Hundred Thousand and No/100 Dollars ($3,500,000.00)" in lieu thereof.
3. Title and Survey. Paragraph 3.1 of the Agreement is hereby amended
by deleting the following language from the seventh grammatical sentence
beginning on the seventeenth line from the top of page 2:
"and a commitment to issue a 3.1 zoning endorsement with parking and
loading with respect to the redevelopment work contemplated in the
"Dominick's Lease" (as hereinafter defined) to the extent such an
endorsement is available based upon a site plan of such redevelopment
as opposed to plans and specifications."
4. Environmental Reports. Paragraph 7.2.A of the Agreement is hereby
amended by deleting the first grammatical sentence in its entirety and by
inserting the following language in lieu thereof:
"Seller has delivered to Purchaser the following environmental
reports:
(i) Phase I Environmental Site Assessment of Evanston Plaza,
dated June 13, 1997, prepared by EMG (the "Phase I");
(ii) Phase II Environmental Assessment of Evanston Plaza
Shopping Center, dated June 13, 1997, prepared by EMG (the "Phase
II");
(iii) Phase I Environmental Site Assessment, dated April 27,
1994, prepared by ATEC Associates, Inc. ("ATEC") ("ATEC Phase I");
(iv) Phase I Environmental Site Assessment, dated June 2, 1993,
prepared by Nova Environmental Services, Inc. ("Nova Phase I");
(v) Letter drafted by the Illinois Environmental Protection
Agency, dated November 7, 1997 (the "IEPA Letter");
(vi) Site Investigation Report, Comprehensive Site
Investigation, dated June 15, 1998, prepared by Bradburne, Briller &
Xxxxxxx, LLC ("BBJ") ("BBJ Site Investigation Report");
(vii) Remedial Objectives Report, dated June 15, 1998,
prepared by BBJ;
(viii) Remedial Action Plan, dated June 15, 1998, prepared by
BBJ; and
(ix) Site Investigation Report, dated June 21, 1997,
prepared by EMG.
Collectively, the Phase I, Phase II, ATEC Phase I, Nova Phase I, IEPA
Letter, BBJ Site Investigation Report, Remedial Objectives Report, Remedial
Action Plan and Site Investigation Report shall be referred herein to as the
"Existing Report"."
All references to the "Existing Report" in the Agreement shall have the meaning
set forth in this Paragraph 3 of this Amendment.
Paragraph 7.2.A. of the Agreement is further amended by deleting the fifth
grammatical sentence therein in its entirety.
5. Environmental Conditions. Paragraphs 7.2.B, 7.3.A, 7.3.B, 7.3.C,
7.4, 7.5, and 7.6 of the Agreement are hereby deleted in their entirety.
Paragraph 7.7 of the Agreement is hereby amended by deleting the following
language from the fourth grammatical sentence:
"except for Seller's obligations to deposit funds into the
Environmental Escrow, as set forth in Paragraph 7.4 herein."
6. Closing Date. Paragraph 8 of the Agreement is hereby amended by
deleting the first grammatical sentence in its entirety and by inserting the
following language in lieu thereof:
"The Closing of this transaction (the "Closing") shall occur seven
(7) days after the satisfaction of the Conditions Precedent (as
hereinafter defined) (the "Closing Date"), but in no event earlier
than October 1, 1998, at the office of the Title Insurer, Chicago,
Illinois, at which xxxx Xxxxxx shall deliver possession of the
Property, subject to the terms of the Leases (as hereinafter defined)
to Purchaser."
7. Closing Documents. Paragraph 9.2 of the Agreement is hereby amended
by deleting the following subparagraphs in their entirety:
"9.2.12. the Environmental Escrow Agreement,"
"9.2.15. an assignment and assumption of the Fretter's Agreement of
Sale and the Toys "R" Us Agreement of Sale in accordance with the
terms of Paragraph 29.6 herein."
8. Representations and Warranties. Paragraph 16.1 of the Agreement of
Sale is hereby amended by deleting the following language from the third line
of the first grammatical sentence: "Xxxxxxx Xxxxxx (the asset manager
responsible for the property)" and by inserting the following language in lieu
thereof: "Xxxxx Xxxx". The name "Xxxxxxx Xxxxxx" should be deleted in the
tenth line of Paragraph 16.1 and the name "Xxxxx Xxxx" should be inserted in
lieu thereof.
9. Tenant Certificates. Seller and Purchaser hereby acknowledge that
Seller has delivered all the Tenant Certificates required pursuant to Paragraph
27 of the Agreement and Purchaser acknowledges that such delivery is sufficient
to satisfy the requirements of Paragraph 27. Purchaser hereby waives the
Estoppel Condition set forth in Paragraph 27.4 and waives any rights in
connection with Paragraph 27 to (a) require the delivery of any Seller Tenant
Certificates, (b) receive any credit at Closing or (c) terminate this
Agreement.
10. IRPTA. Paragraph 28 of the Agreement is hereby amended by deleting
said Paragraph in its entirety and by inserting the following language in lieu
thereof:
"Seller and Purchaser hereby indicate that they are aware of the
purpose and intent of the Illinois Responsible Property Transfer Act
(the "Act") and the disclosure document referred to in the Act.
Seller and Purchaser hereby agree and acknowledge that said
disclosure document is not required in this transaction. Purchaser
hereby agrees to waive any right to terminate this Agreement pursuant
to the Act."
11. Unsatisfied Lease Obligations. Paragraph 26.1 of the Agreement is
hereby amended by deleting said Paragraph in its entirety.
12. Representations and Warranties. Section 16 of the Agreement is
hereby amended by inserting the following subparagraph:
"16.2.11. All Tenant improvement obligations and leasing commissions
have been satisfied and paid in full, other than in connection with
that certain Second Amendment to Lease dated as of August 17, 1998
(the "Second Amendment"), with Office Depot, which Second Amendment
and tenant improvement obligations Purchaser has agreed to assume at
Closing."
13. Purchaser's Conditions to Closing. Paragraph 29 of the Original
Agreement, Paragraphs 2 and 3 of the First Amendment and Paragraph 2 of the
Second Amendment are hereby deleted in their entirety.
14. Conditions Precedent. The obligations of Seller and Purchaser under
this Agreement are contingent upon the satisfaction of the following conditions
(the "Conditions Precedent") on or before October 30, 1998:
(a) Seller obtaining approval of the revised Remedial Action Plan
(the "Revised RAP") by the Illinois Environmental Protection Agency ("IEPA").
Prior to Seller's submittal of the Revised RAP to the IEPA, Seller will provide
Purchaser with a copy of the Revised RAP and Purchaser shall have five (5)
business days in which to approve the revisions contained in the Revised RAP.
Purchaser acknowledges that it has already approved the Remedial Action Plan
submitted to the IEPA as of June 15, 1998. Upon Purchaser's approval of the
Revised RAP or after the expiration of said five (5) day period, Seller shall
submit the Revised RAP to the IEPA. If Purchaser disapproves of the Revised
RAP, this condition precedent shall not be fulfilled.
(b) Seller holding a public meeting to be held in Evanston,
Illinois, regarding the proposed Revised RAP (the "Notice Meeting"); provided,
however, that to the extent Seller amends or modifies the Revised RAP as a
result of comments considered at the Notice Meeting, said amendments or
modifications shall be submitted to Purchaser for approval or disapproval as
provided in subsection (a) above. In the event Seller amends or modifies the
Revised RAP, subsection (a) above shall not be satisfied until Seller, upon
Purchaser's approval, resubmits the Revised RAP to the IEPA and obtains IEPA's
approval of the resubmitted Revised RAP.
If any of the Conditions Precedent set forth above are not fulfilled
as of October 30, 1998, Purchaser or Seller may terminate this Agreement by
giving written notice of such termination to the other party by November 4,
1998, in which event Seller shall promptly return to Purchaser all Xxxxxxx
Money deposited, together with any interest earned 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; provided, however, that
Purchaser shall have the right to waive the satisfaction of the Conditions
Precedent by written notice to Seller on or before October 30, 1998.
15. Fretter Bankruptcy Claim. Seller and Purchaser hereby agree that
Seller shall retain any and all claims arising out of the Fretter, Inc.
bankruptcy; provided, however, that Seller agrees to cooperate with Purchaser
so that Purchaser may acquire the Fretter's Parcel out of the bankruptcy.
16. Tax Abatement. Seller and Purchaser hereby agree that Seller shall
retain any and all rights to any real estate tax abatements or refunds relating
to any period prior to the Closing Date to the extent any such real estate tax
abatement or refund relates to any space in the Shopping Center which is vacant
or to the extent such real estate tax abatement or refund is not owed to a
tenant under such tenant's Lease.
17. Indemnification by Purchaser.
The Existing Report specifically identifies certain types of
environmental contamination existing on the Property in excess of
industrial/commercial remediation objectives (such excess contamination is
collectively referred to as the "Contamination"). Due to the presence of the
Contamination, Seller has agreed to reduce the Purchase Price as reflected
elsewhere herein. In exchange for such reduction, Purchaser has agreed to
provide the limited indemnifications set forth below. For purposes of the
limited indemnifications set forth below, "Indemnitees" shall mean Evanston
Plaza Investors a Real Estate Limited Partnership, an Illinois limited
partnership ("EPI"), and the general and limited partners (and their
successors) in EPI. Subject to the Cap (hereinafter defined), Purchaser hereby
agrees to indemnify Indemnitees and hold Indemnitees harmless from any
out-of-pocket cost or expense actually incurred by Indemnitees after the
Closing in connection with any action by the IEPA (or any other Illinois
agency) or any local or federal agency pursuant to applicable law requiring
remediation of the Contamination on the Property ("Governmental Enforcement
Indemnification"). Purchaser hereby further agrees to indemnify Indemnitees
and hold Indemnitees harmless from any out-of-pocket cost or expenses actually
incurred by Indemnitees after the Closing arising out of Purchaser's
exacerbation of the Contamination on the Property to the extent, but only to
the extent, Purchaser or its agents are actually responsible for exacerbating
the Contamination. Notwithstanding anything to the contrary: (i) Purchaser
shall not have any indemnification obligation to Indemnitees until the total of
all indemnifiable costs exceeds $5,000; and (ii) in no event shall Purchaser's
Governmental Enforcement Indemnification obligations exceed, in the aggregate,
the Cap (as the same may be reduced as provided below). The foregoing
indemnifications shall expire on the date which is four (4) years after the
Closing. The Governmental Enforcement Indemnification shall not include, and
shall specifically exclude, any third-party tort claims (including, without
limitation, personal injury and property damage claims arising from or out of
any contamination in the soil, water or air). Notwithstanding anything to the
contrary, the Purchaser's indemnities shall be personal to Indemnitees and may
not be enforced against Purchaser by any third parties or governmental
agencies. For purposes hereof, the Cap shall initially be equal to
$3,700,000.00, but shall be reduced, dollar for dollar, for each and every
dollar paid by Purchaser to non-affiliates of Purchaser as reflected by paid
invoices in connection with arm's-length contracts for remediating, containing,
monitoring or otherwise responding to any Contamination whatsoever, including,
without limitation, testing, monitoring, excavating, backfilling, preparation
and submission of additional reports to the IEPA, attorney's and consultant's
fees, and all other costs, fees or charges associated in connection therewith.
Seller and Purchaser agree that the indemnification obligations set forth above
shall survive the delivery of title, shall not merge into the deed and shall
survive closing as provided herein.
Within thirty (30) days after an Indemnitee acquires knowledge of an event
that may give rise to an indemnification obligation of Purchaser hereunder
("Occurrence"), Indemnitees shall give written notice to Purchaser describing
the event in reasonable detail, the failure of which shall permit Purchaser to
offset against its indemnification obligation hereunder an amount equal to the
amount of any increased or additional costs or expenses incurred as a result of
such failure to give Purchaser timely notice, including, without limitation,
any increased cost of remediation. Such notice shall include a copy of all
relevant notices, pleadings and the like. Indemnitees and Purchaser shall
cooperate with each other and jointly develop a strategy for responding to the
Occurrence. In no event shall Seller and/or any of the Indemnitees agree or
acknowledge any obligation to remediate the Property without the prior written
consent of Purchaser, which consent Purchaser shall not unreasonably withhold.
Purchaser shall respond to a request for its consent within twenty (20) days.
Any failure to obtain Purchaser's consent as required above shall vitiate
Purchaser's indemnification obligations arising out of such Occurrence. Prior
to incurring any indemnifiable costs, Indemnitees shall give Purchaser ten (10)
days' advance written notice, which notice shall specify the estimated amount
to be incurred and shall specify, in reasonable detail, the purpose for
incurring such costs. Purchaser shall have no obligation to indemnify
Indemnitees for any indemnifiable costs for which Purchaser has not received
such notice. Upon receipt of such notice, Purchaser may object to any such
cost or the purpose for which it is intended to be incurred, in which event
Seller and Purchaser shall diligently proceed in good faith to resolve the
objection. If Indemnitees and Purchaser are not able to resolve the objection,
the matter shall be resolved through binding arbitration. At anytime from and
after an Occurrence, Purchaser shall have the right, but not the obligation, to
(i) assume the negotiation, challenge and/or defense concerning the Occurrence,
and to resolve any such matter in any lawful manner; and/or (ii) remediate
and/or contain (including, without limitation, installing barriers and/or
monitoring equipment) the Contamination which is the subject of the Occurrence.
Seller shall promptly execute such documents as reasonably requested by
Purchaser and shall otherwise cooperate with Purchaser in connection with the
foregoing.
18. Environmental Remediation Agreement. Upon the Closing of this
transaction, Purchaser agrees that Purchaser, or its successors or assigns,
shall execute and deliver to Seller the Environmental Remediation Agreement
attached hereto as Exhibit A.
19. 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:/s/Xxxxxxxx Xxxxx
--------------------------
Name: Xxxxxxxx Xxxxx
--------------------------
Its: Manager
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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:/s/Xxxx XxXxxxxx
----------------------------
Name: Xxxx XxXxxxxx
----------------------------
Its: Trust Officer
----------------------------
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:/s/Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
-------------------------
Its: Chief Financial Officer
-------------------------
EXHIBIT A
ENVIRONMENTAL REMEDIATION AGREEMENT
