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EXHIBIT 10.3
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND REINSTATEMENT AGREEMENT
DATE: September 19, 2000
PARTIES: XXXXX X. XXXXXXX and CENTRAL ONE, INC., an Arizona corporation (the
"Purchaser")
XXXXXX INCOME PROPERTIES I, LTD., a Texas limited partnership
(the "Seller")
SUBJECT: PURCHASE AND SALE AGREEMENT dated effective as of July 12, 2000, as
amended by Amendment to Purchase and Sale Agreement dated July 27,
2000 (said Purchase and Sale Agreement, as so amended, herein called
the "Agreement"), relating to the purchase and sale of Mt. View
Shopping Center in Scottsdale, Arizona.
RECITALS:
The Agreement terminated effective August 3, 2000. Purchaser and Seller now
desire to reinstate the Agreement and to further amend the Agreement as
hereinafter provided.
AGREEMENTS:
For valuable consideration, the receipt of which is hereby acknowledged by
both parties, Seller and Purchaser hereby agree as follows:
1. Reinstatement. Purchaser and Seller hereby reinstate the Agreement to
continue in full force and effect except to the extent otherwise expressly
provided in this Amendment.
2. Contingencies. Purchaser acknowledges that the Approval Period has
expired, and Purchaser hereby waives its termination right under Section 5.1.1
of the Agreement. Purchaser further acknowledges that it has approved (i) the
survey of the Property prepared by Superior Surveying Services, Inc. dated July
24, 2000 (the "Survey") and (ii) the sixth amended commitment for title
insurance issued by Xxxxxxx Title and Trust Company of Phoenix, Inc. dated
effective September 11, 2000 (the "Title Commitment") subject to Seller's
satisfaction of items 2 through 9 of the Requirements (collectively, called the
"Conditions"). If for any reason any Condition is not satisfied at or prior to
Closing, despite Seller's diligent, good faith efforts to satisfy the same,
Purchaser, as its sole and exclusive remedy, may terminate the Agreement by
written notice to Seller at or prior to Closing, whereupon the Xxxxxxx Money
shall be returned to Purchaser, and neither Purchaser nor Seller shall have any
further rights or obligations hereunder other than the Surviving Obligations.
Except for failure to satisfy a Condition, Purchaser hereby waives its
termination rights under Section 5.1.2 of the Agreement. At Closing, Seller
shall deposit $25,000 (the "Escrow Amount") in escrow to be held and applied by
the Title Company as escrow agent under an escrow agreement mutually acceptable
to Purchaser and Seller. After Closing, Purchaser may attempt to cause to be
released that certain Deed of Trust dated March 1,
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1987, recorded March 2, 1987 at Recorders No. 87-124043 wherein Xxxxxx
Enterprises, Inc., a Delaware corporation is Trustor and Lincoln Savings and
Loan Association, a California State Chartered Savings and Loan Association is
Beneficiary ("Deed of Trust"), and Purchaser may be reimbursed from the Escrow
Amount for the actual, out of pocket costs and expenses incurred by Purchaser in
connection therewith. Other than depositing the Escrow Amount, Seller shall have
no liability or obligation of any nature whatsoever with respect to such Deed of
Trust, whether or not a release is ever obtained. Seller shall be entitled to a
refund of any portion of the Escrow Amount not used by Purchaser for the purpose
of seeking the release, and in any event, any amount remaining on deposit with
the escrow agent on June 1, 2001 shall be returned to Seller.
3. Purchase Price. The term "Purchase Price" (as defined in Section 1.1 of
the Agreement) is hereby amended to mean Seven Million Four Hundred Twenty
Thousand and no/100 Dollars ($7,420,000.00)
4. Xxxxxxx Money. Not later than 5:00 p.m., Phoenix, Arizona time, on
Tuesday, September 26, 2000, Purchaser shall re-deposit the Xxxxxxx Money with
the Title Company to be held and applied as the Xxxxxxx Money upon and subject
to the terms of the Agreement. Seller will exercise diligent efforts to satisfy
the Conditions and forward all executed Closing documents to the Title Company
by 5:00 p.m., Phoenix, Arizona time, Thursday, September 21, 2000. The time for
deposit of Purchaser's Xxxxxxx Money shall be extended by 24 hours for every day
of delay in satisfying the Conditions; provided, in no event will any such
extension extend or otherwise affect the Closing Date. If the Xxxxxxx Money is
not timely deposited, Seller may, at its option, terminate this Agreement by
written notice to Purchaser.
5. Closing Date. The term "Closing Date" (as defined in Section 1.1 of the
Agreement) is hereby amended to mean September 28, 2000.
6. Assignment. Seller hereby consents to the assignment by Xxxxx X. Xxxxxxx
of all his right, title and interest in and to the Agreement to JHK Mt. View
Investors, L.L.C., an Arizona limited liability company ("Assignee") of which
Xxxxx X. Xxxxxxx is the sole manager and the sole member. Xxxxx X. Xxxxxxx shall
remain liable for the obligations of Purchaser under the Agreement. Assignee
joins in the execution of this Agreement to evidence its agreement to assume and
perform all of the obligations of Purchaser under the Agreement.
7. Closing Prorations. Section 7.3 of the Agreement is hereby amended to
provide that all Closing prorations under Section 7.3 shall be prepared as of
the Closing Date based on the best information then available with a
reconciliation of such prorations to be completed on or before October 31, 2000.
Purchaser and Seller shall each deposit $10,000.00 in escrow with the Title
Company at Closing to secure its obligations to make post-Closing proration
adjustments.
8. Ultra Cleaners. Seller retains the right after Closing to xxxx and
collect amounts due from Ultra Cleaners under its lease to reimburse Seller for
costs and expenses incurred by Seller in investigating and evaluating the
presence of hazardous materials on or about the Property resulting from acts or
omissions of Ultra Cleaners. Seller shall not be entitled to any credit for such
amounts in connection with the Closing prorations.
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This Amendment may be executed in counterparts. Except as expressly
modified by this Amendment, the terms and conditions of the Agreement shall
remain in full force and effect. Except as otherwise expressly provided in this
Amendment, terms defined in the Agreement shall have the same meaning when used
in this Amendment.
REMAINDER OF THIS PAGE
LEFT BLANK INTENTIONALLY
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PURCHASER: SELLER:
CENTRAL ONE, INC., XXXXXX INCOME PROPERTIES I, LTD.,
an Arizona corporation a Texas limited partnership
By: /s/ Xxxxx Xxxxxxx By: Xxxxxx Realty Investors VIII, Inc.,
------------------------------ a Texas corporation
Name: Xxxxx Xxxxxxx General Partner
Title: President
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: President
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
JHK MT. VIEW INVESTORS, L.L.C., an
Arizona limited liability company
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its: Sole Manager and Sole Member
