FIFTH AMENDMENT TO REAL ESTATE SALE AGREEMENT
[Prentice Plaza, Englewood, Colorado]
THIS FIFTH AMENDMENT TO REAL ESTATE SALE AGREEMENT (this "Amendment") is
made as of the 18th day of June, 1999, by and between First Capital Prentice
Avenue Associates, an Illinois joint venture ("Seller") and Gateway Canyon,
Inc., a California corporation ("Purchaser").
WHEREAS, Seller and Invesco Realty Advisors, Inc. ("Invesco") are parties
to a Real Estate Sale Agreement dated as of March 19, 1999 (as amended from time
to time, the "Purchase Agreement"), as amended by that certain (a) First
Amendment to Real Estate Sale Agreement dated as of March 29, 1999, (b) Second
Amendment to Real Estate Sale Agreement dated as of April 9, 1999, (c)
Reinstatement of, and Third Amendment to, Real Estate Sale Agreement dated as of
May 11, 1999, (d) side letter dated May 20, 1999, executed by Seller and
Purchaser, (e) letter from Mary J. Garnett of Jones, Day, Reavis and Pogue to
Daniel Acosta of Rosenberg & Liebentritt, P.C., dated June 8, 1999, and (f)
Fourth Amendment to Real Estate Sale Agreement dated June 14, 1999. 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, Invesco assigned its rights, interests and obligations under the
Purchase Agreement to Purchaser pursuant to an Assignment and Assumption of Real
Estate Sale Agreement dated June 7, 1999.
WHEREAS, Seller and Purchaser desire to 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. Waiver of Conditions Precedent. Purchaser hereby (i) acknowledges that
the Required Estoppel Certificates have been delivered as required under Section
8(B) of the Purchase Agreement, (ii) waives its right to terminate the Purchase
Agreement with respect to the Pre-Closing Disclosure made in that certain letter
dated June 10, 1999, from Seller's counsel to Purchaser's counsel, and (iii)
acknowledges that the condition precedent contained in Section 8(G) of the
Purchase Agreement has been satisfied.
2. Closing. The Closing is hereby extended until the earlier of (i) June
30, 1999, and (ii) two (2) business days after the full execution and receipt by
Purchaser of that certain Fourth Amendment by and between Seller and Federal
Express Corporation and that certain Office Lease Agreement by and between
Seller and Amdahl Corporation, in the forms previously presented to Purchaser.
3. Condition Precedent. It shall be a condition precedent to Purchaser's
obligation to close pursuant to the Purchase Agreement that Seller deliver to
Purchaser on or before June 28, 1999, a fully-executed (i) Fourth Amendment by
and between Seller and Federal Express Corporation, in the form previously
presented to Purchaser and (ii) Office Lease Agreement by and between Seller and
Amdahl Corporation, in the form previously presented to Purchaser. If
the condition precedent set forth in the preceding sentence is not satisfied,
Purchaser shall have the right to terminate the Purchase Agreement on or before
June 29, 1999, by written notice to Seller, in which event the Earnest Money
shall be returned to Purchaser, the Purchase Agreement shall be null and void
and neither party shall have any further rights or obligations under the
Purchase Agreement except for any rights and obligations that explicitly survive
the termination of the Purchase Agreement.
4. Escrow for Avatech Expansion Space Rent. At Closing, Seller shall
deposit a total of $25,369.52 in escrow ("Avatech Escrow") with the Title
Company for a period of one (1) year after the date of Closing ("Escrow Term").
The Avatech Escrow shall be held and disbursed by Title Company in accordance
with an escrow agreement by and among Title Company, Seller and Purchaser and
mutually acceptable to all such parties. Seller shall pay all escrow costs
charged by the Title Company for the Avatech Escrow. In the event that Purchaser
does not receive at least $2,114.13 ("Monthly Rental Amount') in rental income
for each calendar month during the Escrow Term for Suite 314 of the Property
(the "Avatech Expansion Space") on or before the fifteenth day of each such
calendar month, Purchaser shall be entitled to a disbursement from the Avatech
Escrow in the amount of the difference between the Monthly Rental Amount and any
rental income received by Purchaser during such calendar month for the Avatech
Expansion Space. At the end of the Escrow Term, any amounts remaining in the
Avatech Escrow shall be disbursed to Seller. In the event that Purchaser
receives any rental income for the Avatech Expansion Space from the period
beginning on the date of Closing and ending six (6) months after the expiration
of the Escrow Term and such rental income is applicable to any period during the
Escrow Term, Purchaser agrees that if the sum of such rental income and the
total disbursements received by Purchaser from the Avatech Escrow exceed
$25,369.52, Purchaser shall remit the excess to Seller.
5. Avatech Rental Delinquency. The parties agree that Seller may declare
Avatech Solutions of Colorado, Inc. ("Avatech") in default of its lease for its
failure to pay rent and other amounts due under such lease with respect to the
Avatech Expansion Space. Immediately after Closing, Seller, at its option, may
pursue its remedies against Avatech, including the commencement of litigation
and other proceedings (but Seller shall not seek to evict Avatech or terminate
Avatech's lease). After Closing, Purchaser may pursue any and all remedies it
may have against Avatech for any defaults by Avatech under its lease after
Closing (including, terminating Avatech's lease). Seller and Purchaser agree to
reasonably cooperate with each other in their pursuit of their respective
remedies against Avatech.
6. Avatech Tenant Improvement Allowance. Seller and Purchaser acknowledge
that Avatech is entitled to a tenant improvement allowance in the amount of
$116,000 ("Improvement Allowance") under its lease and that at Closing Purchaser
shall receive a credit for the Improvement Allowance less any amounts previously
spent by Seller (the aggregate amount of which shall not exceed $5,000) with
respect to the Improvement Allowance. Seller shall provide receipts to Purchaser
to document all amounts previously spent by Seller with respect to the
Improvement Allowance.
7. 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.
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8. 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
3 of this Amendment, other than as set forth in Paragraph 1 of this Amendment.
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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:
GATEWAY CANYON, INC., a California corporation
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
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