REINSTATEMENT OF, AND THIRD AMENDMENT
TO, REAL ESTATE SALE AGREEMENT
------------------------------
[Prentice Plaza, Englewood, Colorado]
THIS REINSTATEMENT OF, AND THIRD AMENDMENT TO, REAL ESTATE SALE AGREEMENT
(this "Amendment") is made as of the 11th day of May, 1999, by and between First
Capital Prentice Avenue Associates, an Illinois joint venture (the "Seller") and
Invesco Realty Advisors, Inc., a Delaware corporation ("Purchaser").
WHEREAS, Seller and Purchaser are parties to a Real Estate Sale Agreement
dated as of March 19, 1999 (as amended from time to time, the "Purchase
Agreement"). All capitalized terms which are used but not defined in this
Amendment shall have the same respective meanings ascribed to such terms in the
Purchase Agreement.
WHEREAS, Purchaser terminated the Purchase Agreement pursuant to Section
8(A) thereof in a letter dated April 13, 1999;
WHEREAS, the parties desire to reinstate and amend the Purchase Agreement
as more particularly set forth below.
NOW, THEREFORE, in consideration of the Purchase Agreement, the mutual
covenants and agreements therein and hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, Seller and Purchaser agree as follows:
1. Reinstatement. Seller and Purchaser agree that the Purchase Agreement,
as amended by this Amendment, is hereby reinstated and is in full force and
effect.
2. Purchase Price. The Purchase Price is hereby reduced to Twenty Two
Million One Hundred Thousand Dollars ($22,100,000).
3. Earnest Money. Within two business days after the date of this
Amendment, Purchaser shall deposit a total of Six Hundred Thousand Dollars
($600,000) as Earnest Money with the Escrowee, and the term "Earnest Money" as
used in the Purchase Agreement shall mean such $600,000, together with interest
earned thereon.
4. Waiver of Right of First Refusal. It shall be a condition precedent to
Purchaser's obligation to close the transactions contemplated by the Purchase
Agreement that either (i) Seller provides Purchaser with a letter from TCD North
Inc. ("TCD") waiving its right of first refusal ("Right of First Refusal") to
purchase the Property granted in that certain Warranty Deed dated September 30,
1983, recorded in Arapaho County, Colorado, in Book 3982, Page 154, with respect
to the Purchase Agreement, as modified by this Amendment, or (ii) TCD fails to
exercise its Right of First Refusal within thirty (30) days after receiving a
letter from Seller about the sale of the Property together with a copy of the
Purchase Agreement and this Amendment. In the event that TCD exercises the Right
of First Refusal, the Purchase Agreement shall automatically terminate and be of
no further force and effect, and Seller shall reimburse Purchaser for
Purchaser's out-of-pocket, third-party due diligence expenses up to $60,000.
5. Y2K Compliance. Seller has, to its knowledge, installed a Year 2000
compliant computer ("Y2K Computer") on the Property and shall permit Purchaser
to conduct Year 2000
compliance inspections of the building systems of the Property and the Y2K
Computer ("Y2K Inspections") from and after the date of this Amendment,
provided, however, that such Y2K Inspections shall be conducted subject to the
provisions of Section 10(G) of the Purchase Agreement (except that all
references therein to inspections pursuant to Section 8(A) shall be deemed to
include the Y2K Inspections). If the Y2K Inspections reveal, and Purchaser
provides reasonable written estimates showing, that the cost of making the
building systems Y2K compliant will exceed $35,000, either Seller or Purchaser
shall have as its sole remedy the ability to terminate the Purchase Agreement by
written notice to the other party given before 3:00 PM (Chicago time) on May 17,
1999, in which event the Earnest Money shall be returned to Purchaser and the
Purchase Agreement shall be of no further force and effect except for the
provisions thereof that explicitly survive the termination of the Purchase
Agreement. Notwithstanding the foregoing, in no event shall the cost of making
the building systems Y2K compliant include either (i) the cost of making
services or equipment provided by vendors Y2K compliant, if such vendors are
responsible for making such equipment or services Y2K compliant, or (ii) the
cost of making a tenant's space Y2K compliant, if such tenant has agreed to
lease such space in its "as-is" condition. In the event that either (i) the cost
of making the building systems Y2K compliant is less than or equal to $35,000,
or (ii) the cost of making the building systems Y2K compliant is greater than
$35,000 but neither party elects to terminate the Purchase Agreement, then the
parties shall proceed to Closing and Purchaser shall purchase the Property in
its "AS IS, WHERE IS" condition, subject to ordinary wear and tear and the
provisions of Section 10(H) of the Purchase Agreement, without any reduction in
the Purchase Price or any credits given to Purchaser with respect to the Y2K
Inspections. If theY2K Inspections reveal that the Y2K Computer is not Y2K
compliant, Seller shall install a Y2K compliant computer at the Property on or
before Closing.
6. Inspection Period. The Inspection Period shall be deemed to have
expired as of 12:01 A.M on the date of this Amendment, and Purchaser is deemed
to have agreed to purchase the Property in its "AS IS, WHERE IS" condition,
subject to ordinary wear and tear, the provisions of Section 10(H) of the
Purchase Agreement and Section 5 of this Amendment.
7. Closing. The Closing shall occur on June 4, 1999.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed to be an original, and all of such counterparts shall
constitute one agreement. To facilitate execution of this Amendment, the parties
may execute and exchange by telephone facsimile counterparts of the signature
pages.
9. Effect of Amendment. Except as expressly amended hereby, the Purchase
Agreement shall remain in full force and effect and otherwise unmodified.
Nothing in this Amendment shall be construed as waiving any of Purchaser's
conditions precedent to Closing set forth in the Purchase Agreement or Paragraph
4 of this Amendment, other than those set forth in Section 8(A) of the Purchase
Agreement.
2
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Amendment as of the date first above written.
SELLER:
FIRST CAPITAL PRENTICE AVENUE ASSOCIATES, an
Illinois joint venture
By: First Capital Income Properties, Ltd. --
Series XI, an Illinois limited partnership,
joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By: First Capital Income and Growth Fund --
Series XII, an Illinois limited
partnership, joint venturer
By: First Capital Financial Corporation,
as General Partner
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER:
INVESCO REALTY ADVISORS, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
3