Exhibit 10.105


 


FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT


AND ASSIGNMENT OF NET PROFITS INTEREST


 


THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT
AND ASSIGNMENT OF NET PROFITS INTEREST (the “Amendment”) is made and entered
into this 30th day of January, 2002, by HUNTLEY DEVELOPMENT LIMITED
PARTNERSHIP, an Illinois limited partnership (“HDLP”) and HUNTLEY MEADOWS
RESIDENTIAL VENTURE, an Illinois partnership (“HMRV”; HDLP and HMRV are herein
referred to collectively as “Owner”), and BEAL BANK, S.S.B., a savings bank
organized under the laws of the State of Texas (“Beal”).


 


WITNESSETH:


 


A.                                   Owner and Beal have entered into that
certain Amended and Restated Agreement and Assignment of Net Profits Interest
(the “Agreement”), dated October 27, 1999, relating to the assignment by Owner
to Beal of an interest in the Net Profits, as therein defined, arising from or
relating to, among other property, the real property described on Exhibit “A”
attached hereto.


 


B.                                     In connection with the renewal, extension
and increase of the New Beal Loan, as such term is defined in the Agreement,
Owner and Beal have agreed to amend the Agreement as provided herein.


 


NOW, THEREFORE, for and in consideration of the
premises, the mutual covenants and agreements herein contained, and other good
and valuable consideration, the receipt and sufficiency of all of which are
hereby acknowledged and confessed by each of the parties hereto, Owner and Beal
hereby amend the Agreement as follows:


 


1.                                       Concurrently with the execution hereof,
HDLP is executing and delivering to Beal an Amended, Restated and Increased
Promissory Note (the “Amended Beal Note”), in the principal amount of $11,712,
177.00, which will evidence the New Beal Loan from and after the date hereof.
There remains to be funded as part of the New Beal Loan the sum of
$2,500,000.00 (the “Unfunded Loan Proceeds”), which Unfunded Loan Proceeds will
be advanced by Beal to HDLP upon satisfaction by HDLP of the conditions set
forth in that certain letter agreement, of even date herewith, by and between
HDLP and Beal relating to the New Beal Loan. The New Beal Loan, as now
evidenced by the Amended, Restated and Increased Promissory Note referenced
above, will continue to not be considered a Loan, as such term is defined in
the Agreement.


 


2.                                       Pursuant to the Agreement, on October 31,
2001, Owner was obligated to pay to Beal, and Beal was entitled to receive,
subject to the limitations set forth in Section 


 


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23 of the Agreement, an amount equal to the product of
the Net Profits Interest, as defined in the Agreement, of Beal, multiplied by
the Net Profits in Appraised Value, as defined in the Agreement; however, Owner
has requested that Beal agree to defer the payment of such amount to Beal.
Accordingly, clause (a) of Section 6 of the Agreement is modified to be and
read as follows: “October 31, 2003; provided, however, if the term of the New
Beal Loan is extended to mature on October 31, 2004, the foregoing date shall
also be considered extended to October 31, 2004, when Owner shall pay to Beal
the Net Profits in Appraised Value determined as of such time multiplied by the
Net Profits Interest of Beal,”. In addition, the Agreement is further modified
to provide that notwithstanding anything contained in the Agreement to the
contrary, other than the limitations set forth in Section 23 thereof, once all
Loans have been paid in full and Owner has received an amount equal to the
balance, as of the date in question, of the Approved Contributions plus
interest accrued thereon at the Interest Rate and as otherwise provided in the
Agreement, Net Profits shall be paid and distributed as follows: (i) first the
amount equal to the balance of the Beal Account, as hereinafter defined, shall
be paid to Beal in full, then (ii) Owner shall be entitled to receive and
retain the next $11,142,857.14 (plus interest thereon at the Interest Rate from
and after November 1, 2001 until such sum is paid to Owner) and then (iii) any
remaining Net Profits will be paid thirty-five percent (35%) to Beal and
sixty-five percent (65%) to Owner. Amounts paid to Beal for application to the
Beal Account will be applied first to the accrued and unpaid interest thereon
and then to the $6,000,000.00 initial balance thereof, as such initial balance
is reduced from time to time by the application of payments on the Beal Account
received by Beal as provided herein. 
The Beal Account shall mean the amount of $6,000,000.00, together with
interest accrued and unpaid thereon from and after November 1, 2001, until the
$6,000,000 initial balance is paid to Beal, calculated at the Interest Rate, as
such term is defined in the Agreement, as amended hereby, or the Default Rate,
as hereinafter defined, whichever is applicable.


 


3.                                       Owner and Beal agree that as of the date
hereof, the amount of Approved Contributions, as such term is defined in the
Agreement, made by Owner and which have not been previously recovered by Owner
together with interest accrued thereon through December 31, 2001 as provided in
the Agreement equals $7,005,001.40.


 


4.                                       Owner and Beal agree that if, at any time
a principal payment on the New Beal Loan is due, the unpaid principal balance
of the New Beal Loan at such time and before such principal payment is made, is
in excess of the amount of Approved Contributions at such time, Owner will be
obligated to pay to Beal on demand, as a principal payment on the New Beal
Loan, utilizing the Owner’s own funds and not any proceeds from the Sale of any
of the Property or any proceeds of the New Beal Loan or any other source
related to the Property, the amount of such difference and, the amount so paid
by Owner will not be considered an Approved Contribution. If Owner fails to
make any such principal payment due on the New Beal Loan as provided above,
without limitation of Beal’s other rights and remedies and without limitation
of Owner’s obligations, the Beal Account shall thereafter until Owner so makes
such payment accrue interest at a per annum rate (the “Default Rate”) equal to
the lesser of (i) eighteen percent (18%) or (ii) the Highest Lawful Rate, as
such term is defined in the Amended Beal Note.


 


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5.                                       Section 13 of the Agreement is hereby
amended to provide that (i) if Owner makes a Call, as such term is defined in
the Agreement, as amended hereby, the price Owner offers pursuant to such Call
must be an amount sufficient, if Beal elects to sell its interest pursuant to
such Call, to result in Beal receiving payment in full of all Loans held by
Beal plus the balance of the Beal Account as of the day the sale and purchase
transaction effected pursuant to such Call is closed, (ii) the earnest money
deposit to be made by the purchasing party as described in such Section 13 is
hereby increased from $25,000.00 to $500,000.00 and (iii) the six (6) month
period during which the purchasing party may effect the closing of the buy-sell
transaction effected pursuant to a Call, as defined in the Agreement, is hereby
reduced to forty-five (45) days.


 


6.                                       Section 18 of the Agreement is modified
to provide that the address of Beal to which notices are to be sent pursuant to
the Agreement is hereby changed to 6000 Legacy Drive, 4 East, Plano, Texas
75024, Attention: William T. Saurenmann.


 


7.                                       Except as amended hereby, the Agreement
shall be and continue in full force and effect. Each Owner hereby agrees to pay
and perform in full and timely manner all of its obligations under the
Agreement, as amended hereby.


 


EXECUTED as of the day and year first above written.


 


	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
  HUNTLEY
  DEVELOPMENT LIMITED PARTNERSHIP

  
	
   

  	
  By:

  	
  Huntley Development Company,

  
	
   

  	
   

  	
  Managing
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Gary
  Skoien

  
	
   

  	
   

  	
  Title :  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HUNTLEY MEADOWS RESIDENTIAL VENTURE

  
	
   

  	
  By:

  	
  Prime/Huntley
  Meadows Residential, Inc.,

  
	
   

  	
   

  	
  Managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Gary
  Skoien

  
	
   

  	
   

  	
  Title : Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  BEAL:

  
	
   

  	
   

  
	
   

  	
  BEAL BANK, S.S.B.

  



 


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  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  William T. Saurenmann

  
	
   

  	
   

  	
  Title:  Senior
  Vice President

  



 


CONFIRMATION BY
GUARANTORS


 


The undersigned, each of which has guaranteed the
payment and performance of the obligations of the Owner under the Agreement,
hereby consent to and approve the entering into of this Amendment and agree
that their respective guaranties relating to the Agreement apply to the
Agreement, as amended hereby, and all of the obligations of the Owner under the
Agreement, as amended hereby. Each of the undersigned confirms, affirms and
ratifies its unconditional, joint and several guaranty of the obligations of
each Owner under the Agreement, as amended hereby.


 


 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Michael W.
  Reschke

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRIME GROUP
  LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael W.
  Reschke

  
	
   

  	
   

  	
  Title:

  	
  Managing General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PRIME GROUP II,
  L.P.

  
	
   

  	
  By: PGLP Inc.,
  Managing General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Gary Skoien

  
	
   

  	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PRIME GROUP III,
  L.P.

  
	
   

  	
  By: PGLP Inc.,
  Managing General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Gary Skoien

  
	
   

  	
   

  	
  Title :  Vice
  President

  
						



 


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