FIRST AMENDMENT TO
AGREEMENT OF SALE AND ESCROW AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT OF SALE AND ESCROW
AGREEMENT (this "Amendment") is made and entered into as of this 6th day of
August, 1997, by and between BALCOR/COLONIAL STORAGE INCOME FUND - 85, an
Illinois limited partnership ("Seller"), ACQUIPORT/AMSDELL I LIMITED
PARTNERSHIP, a Delaware limited partnership ("Purchaser"), and NEAR NORTH
NATIONAL TITLE CORPORATION ("Escrow Agent").
RECITALS:
Seller and Purchaser are parties to that certain Agreement of Sale,
dated June 16, 1997 (the "Agreement"), pursuant to which Purchaser has agreed
to purchase and Seller has agreed to sell certain Property (as defined in the
Agreement) legally described and depicted on Exhibit A attached to the
Agreement.
Seller, Purchaser and Escrow Agent are parties to that certain Escrow
Agreement, dated June 16, 1997 (the "Escrow Agreement"), pursuant to which
Purchaser has agreed to deposit funds in escrow to be held by Escrow Agent in
accordance with the terms of the Escrow Agreement.
Seller and Purchaser desire to amend the Agreement and the Escrow
Agreement in accordance with the terms of this Amendment.
Seller and Purchaser desire to amend the Agreement and the Escrow
Agreement in accordance with the terms of this Amendment.
AGREEMENT
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. All terms not otherwise defined herein shall have the meanings ascribed
to each in the Agreement.
2. Paragraph 2.1 of the Agreement is deleted in its entirety and replaced
with the following:
"2.1 On or before August 26, 1997, Purchaser shall deliver to Escrow
Agent funds in the amount of Five Hundred Thousand Dollars and No/100 Dollars
($500,000.00) (the "Original Xxxxxxx Money"). On or before September 25, 1997,
Purchaser shall deliver to Escrow Agent additional funds in the amount of Five
Hundred Thousand Dollars and No/100 Dollars ($500,000.00) (the "Additional
Xxxxxxx Money"; the Original Xxxxxxx Money, together with the Additional
Xxxxxxx Money, if any, shall be hereinafter referred to as the "Xxxxxxx
Money")."
3. The first grammatical sentence of Paragraph 5.2 of the Agreement is
deleted in its entirety and replaced with the following:
"Purchaser shall have until 5:00 p.m. Chicago time on
September 25, 1997 (the "Title Review Period") to examine the Title
Commitments, Updated Surveys and the Documents of Record."
4. The following paragraph is inserted as the second paragraph of
Paragraph 7.2 of the Agreement:
"Purchaser shall have until September 25, 1997 to conduct an
environmental review of the Property. If Purchaser is dissatisfied, in
Purchaser's sole discretion, with the results of the tests, studies or
investigations performed or information received pursuant to this Paragraph 7.2,
Purchaser shall have the right to terminate this Agreement by giving written
notice of such termination to Seller at any time prior to 5:00 p.m. Chicago time
on September 25, 1997. If written notice is not received by Seller pursuant
to this Paragraph 7.2 prior to 5:00 p.m. Chicago time on September 25, 1997,
then the right of Purchaser to terminate this Agreement pursuant to this
Paragraph 7.2 shall be waived. If Purchaser terminates this Agreement by
written notice to Seller prior to 5:00 p.m. Chicago time on September 25, 1997:
(i) Purchaser shall promptly deliver to Seller copies of all studies, reports
and other investigations obtained by Purchaser in connection with its review of
the Property; and (ii) the Xxxxxxx Money deposited by Purchaser shall be
immediately paid to Purchaser, 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."
5. Paragraphs 8.1(ii) and 8.1(iii) of the Agreement are deleted in their
entirety and replaced with the following:
" (ii) On or before the earlier of (a) the date seventy-five (75) days
immediately following the later of (1) the date on which the consent
solicitation to the limited partners of Seller has been cleared by the
Securities and Exchange Commission with no further comment and (2) the waiver
of Purchaser's termination right contained in Paragraph 7.2 herein and
(b) January 31, 1998, obtaining the consent to the transaction set forth in
this Agreement from the limited partners of Seller in accordance with the terms
of the Amended and Restated Agreement and Certificate of Limited Partnership of
Balcor/Colonial Storage Income Fund-85 ("Partnership Agreement").
(iii) On or before the earlier of (a) the date seventy-five
(75) days immediately following the later of (1) the date on which the consent
solicitation to the limited partners of Seller has been cleared by the
Securities and Exchange Commission with no further comment and (2) the waiver
of Purchaser's termination right contained in Paragraph 7.2 herein and (b)
January 31, 1998, obtaining the consent of Colonial in its capacity as general
partner of the Seller to the transaction set forth in this Agreement."
6. The first grammatical sentence of the continuing paragraph following
Paragraph 8.1(iii) of the Agreement is deleted in its entirety.
7. Paragraph 1 of the Escrow Agreement is deleted in its entirety and
replaced with the following:
"1. On or before August 26, 1997, Purchaser may deliver to Escrow Agent
funds in the amount of Five Hundred Thousand Dollars and No/100 Dollars
($500,000.00) (the "Original Xxxxxxx Money"). On or before September 25, 1997,
Purchaser may deliver to Escrow Agent additional funds in the amount of Five
Hundred Thousand Dollars and No/100 Dollars ($500,000.00) (the "Additional
Xxxxxxx Money"; the Original Xxxxxxx Money, together with the Additional
Xxxxxxx Money, if any, shall be hereinafter referred to as the "Xxxxxxx Money").
On or before September 25, 1997, Purchaser may deliver to Escrow Agent and
Seller notifying Escrow Agent and Seller that Purchaser has elected to
terminate the Agreement pursuant to Paragraph 7 of the Agreement (the
"Termination Notice"). In the event that Purchaser delivers to Escrow Agent
and the Seller the Termination Notice on or before September 25, 1997, Escrow
Agent shall promptly deliver to Purchaser the Xxxxxxx Money, together with all
interest earned thereon, and this Escrow Agreement shall be null and void."
8. Except as amended hereby, the Agreement and the Escrow Agreement shall
be and remain unchanged and in full force and effect in accordance with its
terms.
9. 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, Purchaser and Escrow Agent may execute and exchange by telephone
facsimile counterparts of the signature pages, with each facsimile being deemed
an "original" for all purposes.
[EXECUTION PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
PURCHASER:
ACQUIPORT/AMSDELL I LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Amsdell Partners, Inc.,
an Ohio corporation, its general
partner
By: Xxx Xxxxxxx
Name:
Its:
SELLER:
Date of Seller's Acceptance: BALCOR/COLONIAL STORAGE INCOME FUND - 85,
August 6, 1997 an Illinois limited partnership
By: Balcor Storage Partners - 85, an
Illinois general partnership, a
General Partner
By: The Balcor Company, a Delaware
corporation, its General Partner
By: Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Its: Authorized Agent
ESCROW AGENT:
NEAR NORTH NATIONAL TITLE CORPORATION
By: Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Its: Escrow Officer
