EXHIBIT 2.2
FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to Purchase Agreement (the "First Amendment")
is made as of November 14, 1996 by and between XXXXXX REALTY HOLDING
COMPANY, INCORPORATED, a Delaware corporation ("TRHCI"); and LME CAPITAL
CORPORATION, a Delaware corporation ("LMECC") (with TRHCI and LMECC being
referred to collectively in this First Amendment as "Seller") and PIVOTAL
GROUP, INC., an Arizona corporation ("Buyer").
RECITALS
A. Buyer and Seller entered into a Purchase Agreement, dated
October 22, 1996 with respect to certain assets of Seller located in the
States of Texas, California, and Arizona (the "Original Purchase
Agreement"). Capitalized terms used in this Agreement and not defined
in this Agreement shall have the meanings given to such terms in the
Original Purchase Agreement. The Original Purchase Agreement, as amended
by this First Amendment, is referred to in this First Amendment as the
"Purchase Agreement".
B. On November 12, 1996, Buyer sent a Deletion Notice to Seller
proposing deletion of the Las Montanas Property (as defined on Exhibit
A to the Original Purchase Agreement) and the California Hills/XxXxxxx
Ranch Property (as defined on Exhibit A to the Original Purchase
Agreement) (the "California Deletion Notice").
C. Buyer and Seller have reached an agreement that the California
Hills/XxXxxxx Ranch Property will not be deleted from the Property and
have also agreed to certain other matters with respect to the Property
remaining subject to the Purchase Agreement, including certain amendments
to the Original Purchase Agreement.
D. Buyer and Seller wish to document their understandings and
agreements in this First Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as
follows:
1. Recision of California Deletion Notice. The California
Deletion Notice is rescinded and is of no further force and effect.
2. Elimination of Las Montanas Property and Release of LMECC;
Sales Price Adjustment.
(a) The parties agree that the Las Montanas Property is
deleted from the Property, with any other Property relating to the
-1-
Las Montanas Property (the "Las Montanas Related Property") also
being deleted from the Property pursuant to Section 5.2(c) of the
Original Purchase Agreement.
(b) LMECC is hereby released as a Seller and shall have no
further obligation or liability pursuant to the Purchase Agreement.
All of the provisions of the Original Purchase Agreement, as they
relate to LMECC, the Las Montanas Property, or the Las Montanas
Related Property, are of no further force or effect.
(c) In consideration of the deletion of the Las Montanas
Property from the transaction, the Sales Price is reduced to
$17,500,000, and Section 2.1 of the Original Purchase Agreement is
amended accordingly.
(d) Exhibit D to the Original Purchase Agreement, the Sales
Price Allocation, is replaced in its entirety by Exhibit A to this
First Amendment.
(e) Section 5.2(b) of the Original Purchase Agreement is
amended in its entirety to read as follows:
"(b) Seller's Right to Cancel.
(i) If the aggregate total of the Sales
Price allocated to Separate Parcels that will
otherwise be deleted under Section 4.5 and Section
8.2(b)(iii) exceeds the Threshold Amount, then,
Seller may elect, by written notice to Buyer within
3 business days after any proposed deletion under
Sections 4.5 or 8.2 occurring after the
California/Texas Parcel Deletion Deadline (if the
aggregate of all proposed deletions under this
Agreement then exceeds the Threshold Amount), to
cancel this Agreement as to all of the Property.
Upon such a cancellation, Buyer shall be entitled
to a return of the xxxxxxx money deposit made
pursuant to Section 2.1(a).
(ii) As used in this Agreement, the
"Threshold Amount" is $1,000,000."
3. Acknowledgment of Satisfaction. Subject only to compliance by
Seller with the provisions of Paragraph 4 of this First Amendment and to
the provisions of Section 4.5 of the Original Purchase Agreement, Buyer
acknowledges full and complete satisfaction of all of the contingencies
in Section 5.2 of the Original Purchase Agreement, including without
limitation, all environmental, title, and survey matters relating to the
Property.
-2-
4. Certain Obligations of Seller. Seller agrees that Seller has
and will perform the obligations specified on Exhibit B to this First
Amendment.
5. Title Company. Notwithstanding the provisions of Sections
4.1(c)(ii) and 6.5 of the Original Purchase Agreement, the preliminary
title reports and title policies for properties in California will be
issued by Chicago Title Company and not Lawyers Title Insurance Company.
6. License Agreement. Buyer acknowledges that Seller has entered
into a license agreement with respect to Parcel 811 in Texas. Buyer has
been provided a copy of the license agreement and agrees that said
license agreement is a "Contract", the same as if it were listed on
Exhibit F.
7. Ratification. As modified and supplemented by this First
Amendment, the Purchase Agreement is ratified and confirmed and shall
continue in full force and effect.
8. Counterpart Execution. This First Amendment may be executed
in one or more counterparts, each of which, when taken together, shall
constitute the original. Telecopy signatures shall be adequate to
indicate original signatures provided the originals are provided to the
parties as soon as possible following execution.
SELLER:
XXXXXX REALTY HOLDING COMPANY,
INCORPORATED, a Delaware corporation
By Xxxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
President
LME CAPITAL CORPORATION,
a Delaware corporation
By Xxxxxxx X. Xxxxxxxxx, Xx.
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, Xx.
President
BUYER:
PIVOTAL GROUP, INC.,
an Arizona corporation
By Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Its Vice President
-3-
