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EXHIBIT 10.69
THIRD AMENDMENT TO
ESCROW INSTRUCTIONS AND ADDENDUM THERETO
AND
OPTION AGREEMENT
This Third Amendment to Escrow Instructions and Addendum Thereto and
Option Agreement is entered into this 23rd day of July, 1997 by and between
XXXXXXXXX AND I-17, L.L.C., an Arizona limited liability company, and DEER
VALLEY TOWNE CENTER L.L.C., an Arizona limited liability company (collectively,
the "Seller") and CRYSTAL, INC., an Arizona corporation (the "Buyer").
WITNESSETH
A. WHEREAS, Buyer and Seller are the parties to that certain set of
Escrow Instructions and Addendum thereto which is the subject of that certain
Lawyers Title Insurance Corporation Escrow No. 97-7980 (the "Purchase
Contract"), which Purchase Contract has previously been amended by a First and
Second Amendment between the parties, and
B. WHEREAS, the parties desire to clarify and amend certain of the
terms and conditions of the Purchase Contract.
NOW, THEREFORE, it is agreed as follows:
1. Grant of Option and Termination of Escrow. The parties agree
that the Purchase Contract and the escrow are hereby terminated and except as
set forth herein (or in the Purchase Contract) neither party shall have any
further obligations to the other. The parties agree that this Agreement shall
serve as joint cancellation instructions for the Escrow Agent. The parties
further agree that Seller does hereby grant an Option (the
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"Option") to Buyer to purchase the Property which is the subject of the Purchase
Contract upon the same terms and conditions as set forth in the Purchase
Contract as amended by the First and Second Amendment thereto and by the terms
of this Third Amendment and Option Agreement.
2. Term of Option. The parties agree that the Option shall
immediately terminate and become null and void without the necessity of any
action by either party, if not exercised on or before 5:00 p.m. M.S.T.,
September 30, 1997, unless extended as set forth below. The parties agree that
in no event shall the Option be extended beyond 5:00 p.m. M.S.T., September 30,
1997 and that any exercise thereof must be in strict compliance with the terms
of this Agreement. Notwithstanding the foregoing, Buyer shall have the right
to extend the expiration of the Option to October 31, 1997 and a second right
to extend the expiration of the Option to November 30, 1997, by written notice
to Seller no less than five business days prior to the then existing Option
expiration date; in the event Buyer elects to make either of such two
extensions. Buyer shall pay to Seller concurrently with Buyer's notice of
election to extend the sum of $100,000 for each of such two extensions being
elected by Buyer. Any payments by Buyer under the preceding sentence shall not
apply toward the Purchase Price of the Property, except that, if Buyer
exercises the Option prior to the expiration of any option period, the portion
of such extension payment allocable to the time period after exercise of the
Option shall apply toward payment of the Purchase Price of the Property (for
example, if Buyer extends to November 30 but exercises the Option on November
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Buyer would receive a credit of one third of $100,000 toward payment of the
Purchase Price).
3. Consideration for Option. The parties agree that as initial
consideration for the grant of the Option, Seller shall be entitled to the
immediate payment of the sum of $125,000.00 and all accrued interest on the
xxxxxxx money currently on deposit with Escrow Agent. Said sum shall be paid by
the release of the xxxxxxx money (and all accrued interest thereon) presently
held by the Escrow Agent in said amount and Escrow Agent is hereby instructed
to release to Seller the xxxxxxx money held in the Escrow (including any
accrued interest on the xxxxxxx money). Buyer agrees that it shall pay as
additional consideration for the grant of the Option the sum of $50,000.00 in
cash payable directly to Seller on or before 5:00 p.m. M.S.T., August 1, 1997
and a second payment of $25,000.00 in cash on or before 5:00 p.m. M.S.T.,
September 1, 1997. Said sums shall be deemed to be payment for the Option and
shall not be applied toward the purchase price of the Property. In the event
said sums are not promptly paid, this Option shall immediately terminate
without the necessity of any further action by either party. Buyer further
agrees to strictly comply with the terms of Section 5 hereof which compliance
shall serve as additional consideration for the Option.
4. Amendment to Purchase Price.
(a) Calculation of Purchase Price. The parties agree that
pursuant to Sections 6 and 32 of the Purchase Contract, the total
Purchase Price of the Property shall be adjusted based upon the net
acreage as shown on a survey plus the net acreage resulting from any
abandonment of existing rights of way.
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The parties agree that based upon that certain survey performed by Wood/Xxxxx
dated August 8, 1997 that the total net acres prior to any abandonment, shall
be deemed to be 41.50 acres. The parties agree that the total purchase price
payable pursuant to Section 6 of the Purchase Contract shall be $10,311,686.00.
The foregoing purchase price reflects the adjustment pursuant to Section 32 of
the Purchase Contract.
(b) Payment of the Purchase Price. The parties agree that,
notwithstanding any provisions in the Purchase Contract to the contrary, the
down payment shall be as provided for in Section 6 of the Purchase Contract in
the amount of $6,034,848.00.
(c) Notes and Deed of Trust. The parties agree that the Note shall
bear interest at 10% per annum, with interest payable monthly, and shall become
all due and payable February 3, 1998, but shall allow the Buyer to extend the
maturity date for up to three one-month extension periods in exchange for
payment of an extension fee of $25,000 for each one-month extension exercised
by Buyer, provided, that if Buyer pays the Note in full prior to an extended
maturity date, the portion of an $25,000 extension fee allocable to the period
following the full payment date shall be credited toward the full payment or
returned to Buyer if the Note was overpaid (e.g. if the Note maturity date is
extended to March 3, 1998 but Buyer tenders funds to pay the Note on February
17, 1998, $12,500 would be credited toward the payment of the Note). The Note
and Deed of Trust to be executed by Buyer upon Close of Escrow shall be in the
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precise form of that attached as Exhibits A and B to this Amendment except for
the amount of the Note which shall be determined by the Escrow Agent at Close
of Escrow. The parties further agree that said Deed of Trust shall secure
Buyer's obligations pursuant to Section 36 of the Purchase Contract and the
recorded memorandum of said Section shall so recite.
(d) Additions to the Purchase Price. In addition to the amount set
forth above, Buyer agreed to pay the following additional amounts: (i) within
fifteen (15) days following receipt of an invoice for the same, but in no event
prior to the Close of Escrow, its prorata share of the reasonable cost of
construction performed by Seller of Xxxx Drive and a new street from Xxxx Drive
to Rose Garden Lane, (the parties acknowledge and agree that Buyer's prorata
share is fifty six percent (56%) of the total), (ii) at Close of Escrow, the
amount of real property taxes and insurance which accrue upon the property from
August 1, 1997 to the date of Close of Escrow, (iii) at Close of Escrow an
amount equal to fifty percent (50%) of the interest associated with Seller's
loan on the Property from the date of this Agreement to the date of Close of
Escrow, Seller represents to Buyer that the cost of such interest charges will
not exceed $17,000.00 per month. The obligations of Buyer under part (i) of
this paragraph shall be secured by the Deed of Trust, provided, however, that
if Buyer pays the Note in full prior to presentation of the required invoice
under part (i), the Deed of Trust shall be released notwithstanding the lack of
payment under part (i) as of that date, but
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release of the Deed of Trust shall not terminate Buyer's liability to
make the required payment.
5. Submission of Plans. Buyer shall submit to the City of Phoenix
architectural design requests and building plans for the first building to be
built in Phase 1 of Buyer's development and all other applications that Buyer
reasonably believes are necessary for the City of Phoenix to approve Buyer's
proposed development of the Property on or before July 31, 1997. Buyer shall
provide to Seller copies of all architectural design requests and building
plans, soils tests and environmental reports prepared by Buyer. Seller
acknowledges that such plans, applications and other materials may require
amendment, supplementation or additional information prior to approval from the
City of Phoenix.
6. Xxxxxxx Payment. As additional consideration for the granting of the
Option, Xxxxxxxx Xxxxxxx ("Xxxxxxx") promises to pay to Seller the sum of Two
Hundred and Fifty Thousand Dollars ($250,000.00) (a) within thirty days
following the expiration of the Option if (i) Buyer does not exercise the Option
for any reason other than a breach by Seller and (ii) Buyer has extended the
Option beyond September 30, 1997 (no payment shall be due if the Option expires
on September 30, 1997) or (b) immediately following the completion of a
trustee's sale or judicial foreclosure of the property encumbered by the Deed of
Trust (no payment shall be due if the Note is paid prior to the occurrence of
such a trustee's sale or judicial foreclosure). Xxxxxxx acknowledges that he is
a part owner of Buyer and will derive valuable benefits from this Amendment.
Xxxxxxx further acknowledges that Seller would not enter into this
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Amendment in the absence of this agreement by Xxxxxxx and that Seller will rely
on this agreement by Xxxxxxx. Xxxxxxx shall execute any additional documents or
instruments reasonably requested by Seller to evidence the obligation stated in
this Agreement, but no such document or instrument shall increase any
obligation of Xxxxxxx hereunder.
7. EXERCISE OF OPTION. The Option shall be exercised by Buyer by the
deposit into an escrow with Lawyers Title Insurance Corporation originals or
copies of the Purchase Contract, together with the First, Second and Third
Amendment thereto, a deposit of $6,034,898.00 into said escrow and the further
deposit into the escrow of an executed Deed of Trust and Promissory Note in the
forms attached hereto as Exhibit A and B, all on or before 5:00 p.m., M.S.T.,
September 30, 1997. The Close of Escrow shall occur as soon following Buyer's
exercise of the option as is reasonably possible, but in no event more than one
business day following such deposit; the parties shall use reasonable efforts
to have the Close of Escrow occur concurrently with the exercise of the Option.
The parties agree that any and all contingencies to the Close of Escrow shall
be deemed waived by Buyer (other than the contingencies for Seller's delivery
of closing documents and Buyer's right to approve any changes in the status of
title to the Property) and that the representations and warranties contained in
the Purchase Contract as amended by the First, Second and Third Amendments
shall be in full force and effect.
8. MISCELLANEOUS. Capitalized terms as used herein shall have the same
definition and meaning as stated in the Addendum. The parties agree that except
as expressly set forth herein, the Escrow Instructions and Addendum and the
First and Second Amendment shall remain in full force and effect and may only
be modified by the
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written agreement of the parties. The parties further agree that time is of the
essence of this Agreement and strict compliance with the time limits imposed by
this Agreement is a substantial and essential consideration to the parties.
9. Merger. This Amendment, together with the prior Addendum and
Amendments, constitute the entire agreement of the parties and there are no
oral or written agreements or understandings, other than those expressly
referenced herein. In the event of any conflict between this Third Amendment
and Option Agreement and the terms and conditions of any prior agreement,
including the Purchase Contract, between the parties, the terms and conditions
of this Third Amendment and Option Agreement shall prevail.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
SELLER:
XXXXXXXXX AND I-17, L.L.C., an Arizona
limited liability corporation
By The Xxxxxxxxxx Revocable Trust Dated
August 5, 1993, its Managing Member
By: /s/ R. Xxxxx Xxxxxxxxxx
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R. Xxxxx Xxxxxxxxxx, as
Trustee
DEER VALLEY TOWNE CENTER, L.L.C., an
Arizona limited liability company
By: /s/ R. Xxxxx Xxxxxxxxxx
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R. Xxxxx Xxxxxxxxxx
Its: Managing Member
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BUYER:
CRYSTAL, INC., an Arizona corporation
By /s/ Xxxxxxxx Xxxxxxx
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Its: President
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By execution below, Xxxxxxxx Xxxxxxx joins in this Amendment solely for the
purpose of confirming his agreement to Paragraph 6 of this Amendment.
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
Dated: July 18, 1997
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