AMENDMENT NO. 1 TO AGREEMENT OF SALE
THIS AMENDMENT NO. 1 TO AGREEMENT OF SALE (this "Amendment") is dated
October 8, 1996, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., a New Jersey corporation
("Purchaser"), and SALEM COURTHOUSE PARTNERS, an Illinois general partnership
("Seller").
W I T N E S S E T H:
A. WHEREAS, Purchaser and Seller have heretofore entered into that
certain Agreement of Sale dated as of October 1, 1996 (the "Agreement"); and
B. WHEREAS, the parties hereto desire to amend the terms and conditions
of the Agreement in certain respects, in accordance with the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the recitals set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
all parties, Purchaser and Seller hereby agree as follows:
1. Preambles. The preambles to this Amendment are fully incorporated
herein by this reference thereto with the same force and effect as though
restated herein.
2. Defined Terms. To the extent not otherwise defined herein to the
contrary, all capitalized terms and/or phrases used in this Amendment shall
have the respective meanings ascribed to them in the Agreement, as modified
hereby.
3. Purchase Price. Notwithstanding anything to the contrary contained
in paragraph 1 of the Agreement, the parties hereto hereby agree that the
Purchase Price shall be Eight Million, Seven Hundred Twenty-Five Thousand
Dollars ($8,725,000.00).
4. Title, Survey, Transfer Tax and Closing Costs. Notwithstanding
anything to the contrary contained in paragraphs 3 or 4 of the Agreement, the
parties hereto hereby agree that Seller shall pay 100% of the following costs:
the Title Commitment and Title Policy, including all endorsements to, or
extended coverage on, the Title Policy; the costs of obtaining the Updated
Survey; the costs of the documentary or transfer stamps to be paid with
reference to the Deed, and all other stamps, intangible, transfer, documentary,
recording, sales tax and surtax imposed by law with reference to any other sale
documents delivered in connection with the sale of the Property to Purchaser,
and all other charges of Title Insurer in connection with the subject
transaction, including closing, recording and filing fees.
5. Inspection Period and Closing Date. Notwithstanding anything to the
contrary contained in paragraphs 7 and 8 of the Agreement, the parties hereto
hereby agree that the Inspection Period shall end at 5:00 p.m. Chicago time on
October 31, 1996, and the Closing Date shall be November 15, 1996, subject to
Purchaser's right to extend the Closing Date until December 15, 1996, in
accordance with the terms of paragraph 8 of the Agreement.
6. Seller's Representative. Notwithstanding anything to the contrary
contained in paragraph 16.1 of the Agreement, Seller's Representative shall be
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
7. Rent Roll. Notwithstanding anything to the contrary contained in
paragraph 16.2 b. of the Agreement, the Rent Roll attached hereto as Exhibit A
shall replace and supersede the Rent Roll that was attached as Exhibit M to the
Agreement.
8. Survival of Representations and Warranties. The introductory portion
of paragraph 16.2 of the Agreement and all of Paragraph 16.5 of the Agreement
are hereby deleted in their entirety, and the following shall be inserted in
lieu thereof:
"16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which said
representations and warranties are made to Seller's knowledge, shall be deemed
made again on the Closing Date and which shall survive the Closing until 5:00
p.m. Chicago time on December 26, 1996."
"16.5. The parties agree that the representations and warranties
contained herein shall survive Closing until 5:00 p.m. Chicago time on December
26, 1996 (i.e., the claiming party shall have no right to make any claims
against the other party for a breach of a representation or warranty after 5:00
p.m. Chicago time on December 26, 1996)."
9. Seller's Covenants. Paragraph 17 e. of the Agreement is hereby
deleted in its entirety, and the following shall be inserted in lieu thereof:
"e. In consideration of Purchaser's consenting to the limitation of
liability set forth in Paragraph 18 below, Seller shall not make a distribution
of the net proceeds of this sale to its partners until after 5:00 p.m. Chicago
time on December 26, 1996. If Purchaser makes a claim against Seller prior to
5:00 p.m. Chicago time on December 26, 1996, then Seller will continue to
withhold distribution of the net proceeds until the claim is settled or
adjudicated. However, the amount withheld shall not exceed the amount of the
claim."
10. Miscellaneous.
(a) Except as may be expressly set forth herein to the contrary, the
Agreement remains unmodified, and all other terms and conditions of the
Agreement remain in full force and effect. Notwithstanding anything to the
contrary contained herein, to the extent that the terms and conditions of this
Amendment conflict with the terms and conditions of the Agreement, this
Amendment shall control.
(b) This Amendment may be signed in counterpart, each of which shall
be deemed an original, and all of which shall be deemed one Agreement.
(c) This Amendment shall be governed and construed under the laws of
the State of Indiana.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
PURCHASER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, & CO., a New Jersey corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Its: President
----------------------------------------
SELLER:
SALEM COURTHOUSE PARTNERS, an Illinois general
partnership
By: BIPIDS Limited Partnership, an Illinois
limited partnership, a general partner
By: IDS/Balcor Income Partners, A Real Estate
Limited Partnership, a Delaware limited
partnership, its general partner
By: Balcor Affiliated Partners-87, Inc., an
Illinois corporation, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Its: Authorized Representative
-----------------------------------------
