FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
FIRST
AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
This First Amendment to Purchase And
Sale Agreement And Escrow Instructions (“Amendment”) is made
between Presstek, Inc., a Delaware corporation (“Seller”) and EJC
Properties, LLLP, an Arizona limited liability limited partnership, and/or
Permitted Assigns (“Purchaser”), with
reference to the following recitals.
RECITALS
A. Seller
and Purchaser are parties to that certain Purchase and Sale Agreement and Escrow
Instructions, dated April 24, 2008 (the “Agreement”).
B. Seller
and Purchaser wish to amend the Agreement on the terms and conditions set forth
below.
AGREEMENT
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. Feasibility Waiver
Notice. Purchaser acknowledges that the Property Review Period
has expired and that this Amendment shall constitute the Feasibility Waiver
Notice contemplated by Section 5.2 of the Agreement.
2. Closing
Date. The Closing Date shall be July 14, 2008.
3. Leaseback. Seller
and Purchaser approve the final form of Leaseback attached hereto as Exhibit
“A” and incorporated herein by this reference.
4. Tenant
Improvements. Exhibit “H” of the Agreement is hereby amended
to delete the last two items set forth thereon (i.e., “Restrooms” and “Break and
Conference Rooms”).
5. Excess TI
Cost.
5.1 Notwithstanding
the terms of the Excess TI Cost Notice given by Purchaser to Seller on June 12,
2008, Seller and Purchaser agree that the Excess TI Cost shall be Three Hundred
Fifty-Nine Thousand Ninety-Two and No/100 Dollars ($359,092.00).
5.2 At
the Closing, Escrow Agent shall retain the Excess TI Cost in
escrow. At such time as Purchaser has incurred actual out-of-pocket
costs for the Tenant Improvements in an amount equal to the TI Cap [Three
Hundred Seventy-Seven Thousand Nine Hundred Twenty and No/100 Dollars
($377,920.00)], Purchaser shall give written notice to Seller and Escrow Agent
of such fact (the “TI
Cap Notice”). The TI Cap Notice shall be certified to Seller
and Escrow Agent by Purchaser’s chief financial officer.
5.3 Thereafter,
Purchaser shall be entitled, not more frequently than every thirty (30) days, to
submit draw requests to Escrow Agent (with a copy to the Seller)
requesting
payment
from the Excess TI Cost (each, a “Draw
Request”). The Draw Requests shall be certified to Seller and
Escrow Agent by Purchaser’s chief financial officer. The first Draw
Request shall set forth the amount by which Purchaser’s actual out-of-pocket
costs for the Tenant Improvements have exceeded the TI
Cap. Subsequent Draw Requests shall set forth the amount of actual
out-of-pocket costs for the Tenant Improvements incurred by Purchaser since the
last payment from escrow on account of a Draw Request. Each Draw
Request shall contain a recap of the Excess TI Cost, each Draw Request, and each
payment from escrow on account of a Draw Request, and shall include invoices
from the Contractor (as that term is defined in Paragraph
6) in the amount of the applicable Draw Request and conditional lien
waivers from all contractors, subcontractors, and other parties that would be
entitled to record a lien against the Premises if not timely paid.
5.4 Escrow
Agent shall pay Purchaser the amount of the Draw Request on the fifth (5th)
business day after receipt of the Draw Request, unless within such five (5)
business day period, Seller objects to the Draw Request, which objection must be
in writing and given to Purchaser and Escrow Agent (“Objection
Notice”). If Seller gives an Objection Notice, Seller and
Purchaser shall promptly attempt to resolve the dispute involving the Draw
Request and notify Escrow Agent in writing of such
resolution. If Escrow Agent does not receive written notice from
Seller and Purchaser of such resolution, Escrow Agent shall not disburse the
amount set forth in the Draw Request. If such resolution is not
achieved within five (5) days after the Objection Notice is given, Lessor and
Lessee shall have all rights and remedies at law and in equity.
5.5 Once
the Tenant Improvements have been finally completed, Purchaser shall give Seller
and Escrow Agent written notice of such final completion which shall be
accompanied by a certification from Purchaser’s architect that the Tenant
Improvements have in fact been finally completed and final lien waivers from all
contractors, subcontractors, and other parties that would be entitled to record
a lien against the Premises if not timely paid (the “Notice of Final
Completion”). Upon receipt of the Notice of Final Completion,
Escrow Agent shall disburse any remaining balance of the Excess TI Cost to
Seller.
5.6 Purchaser
shall not be liable for any costs or delays incurred in connection with the
Tenant Improvements that are due to the fact that any aspect of the Property
that was constructed prior to the Closing Date was, at the time it was
constructed, constructed in violation of any applicable code.
5.7 If
required by Escrow Agent, Seller and Purchaser shall execute such supplementary
instructions as Escrow Agent may reasonably require; provided, however, such
instructions shall not be inconsistent with the terms of this
Amendment. Seller shall pay Escrow Agent’s fees for undertaking the
responsibilities set forth in this Paragraph
5.
6. Bidding of Tenant
Improvements Work. Purchaser shall bid the Tenant Improvements
work to not less than three (3) reputable, licensed and bonded general
contractors, none of whom shall be affiliated with
Purchaser. Purchaser shall award the bid to the lowest conforming
bidder
(the
“Contractor”)
and, at Purchaser’s request, shall give Purchaser a reasonable opportunity to
work with the general contractor and Purchaser’s architect to value engineer and
otherwise revise the working drawings for the Tenant Improvements to attempt to
lower the cost of the Tenant Improvements.
7. Assignment of Purchaser’s
Rights. Pursuant to Section 19.6 of the Agreement, Purchaser
hereby assigns all of its right, title and interest under the Agreement to 2030
East, L.L.C., an Arizona limited liability company (“Assignee”). By
its signature below, Assignee agrees to assume all undischarged obligations and
liabilities of Purchaser under the Agreement. Assignee’s address for
notices under the Agreement shall be the same as for Purchaser. Such
assignment and assumption shall not release Purchaser from any of its
obligations and liabilities under the Agreement.
8. Fax;
Counterparts. This Amendment may be executed by facsimile
signatures and in counterparts.
9. Definitions. Any
capitalized term used in this Amendment and not defined herein shall have the
meaning set forth in the Agreement.
10. Full Force and
Effect. The Agreement, as modified by this Amendment, remains
in full force and effect. In the event of any inconsistency between
the Agreement and this Amendment, this Amendment shall control.
DATED as
of June 27, 2008.
|
SELLER:
Presstek,
Inc.,
a
Delaware corporation
By:
Name:
Its:
|
PURCHASER:
EJC
Properties, LLLP,
an
Arizona limited liability limited partnership
By:
Name:
Its:
|
Accepted
and agreed to:
2030
East, L.L.C.,
an
Arizona limited liability company
By:
Xxxx X.
Xxxxxxxxx
Its: Manager
ACCEPTANCE
BY ESCROW AGENT
Escrow
Agent hereby acknowledges receipt of a fully executed copy or counterpart copy
of this Amendment and agrees to comply with the terms applicable to it in
accordance with the provisions hereof. Escrow Agent further agrees to
immediately deliver to Purchaser and Seller copies or counterpart copies of this
fully executed Amendment.
TITLE
SECURITY AGENCY OF ARIZONA
By:
Name:
Title:
EXHIBIT
“A”
[Final
form of Leaseback]
