EXHIBIT 10.51
FIRST AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
THE STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS
THAT, WHEREAS, INVESTORS LIFE INSURANCE COMPANY OF NORTH AMERICA, a Texas
corporation ("Seller") and ASPEN GROWTH PROPERTIES, INC., a Texas corporation
("Aspen"), entered into that certain "Agreement of Sale and Purchase" dated
effective as of March 17, 2005 (the "Agreement"), pursuant to which Seller
agreed to sell and Purchaser agreed to purchase Lots 1-8 in Block "A" of Amended
River Place Section 20, a subdivision in Travis County, Texas, together with
approximately 0.345 acres of land located adjacent thereto, all as more fully
described therein (collectively, the "Property"); and
WHEREAS, Aspen has assigned its rights under the Agreement to River Place
Pointe, L.P., a Texas limited partnership, La Jolla Marketplace, L.P., a
California limited partnership, Rancho Coachella Properties, L.P., a California
limited partnership, John M. Tworoger, a married man, Q.D.C., LLC, an Alaskan
limited liability company, William Arthur Shirley and Frances W. Shirley,
husband and wife, Mark D. McLaren and Kathleen C. McLaren, husband and wife, RNC
Resources, Inc., a California corporation, John M. Tworoger, as trustee of the
Roger Swift Irrevocable Trust U.D.T. 11/15/1994, W. Creighton Gallaway and
Charlotte C. Gallaway, husband and wife, William M. Shannon and Arlene D.
Shannon, husband and wife, James W. Patrick and Debra W. Patrick husband and
wife, Brenda Tworoger, a married woman, Greg A. Rogers and Kathryn L. Rogers,
husband and wife, and Sharon S. Tworoger, an unmarried woman (collectively, the
"Purchaser");
WHEREAS, Seller and Purchaser now desire to amend the Agreement as set
forth hereinbelow; and
WHEREAS, Seller and Purchaser now desire, in connection with the sale and
conveyance of the Property, to acknowledge in writing that (a) Purchaser has
elected not to enter in the "Purchaser Sublease" referenced in Section 5.01 of
the Contract (the "Purchaser Sublease") and (b) Seller has previously accepted a
payoff of the "Tenant Improvement Loan" which is described and defined in
Section 1.06 of the Contract (the "Tenant Improvement Loan").
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and in the Agreement, Seller and Purchaser do hereby
covenant and agree as follows:
1. Prorations. Seller and Purchaser agree that subsection 4.05(b) of the
Agreement is hereby amended, superceded and replaced in its entirety with this
Paragraph 1. Seller and Purchaser hereby agree as follows with respect to the
proration of utility expenses and Taxes:
- 1 -
a. Utility expenses will be prorated based on the best information
available at Closing. After the actual utility expenses are
known, adjustments, if any, will be made between Seller and
Purchaser.
b. There will be no proration of 2005 Taxes between Seller and
Purchaser at the Closing. Rather, Purchaser will appeal the 2005
valuation of the Property for ad valorem tax purposes (the "Tax
Appeal") and, at the Closing, Seller will escrow with the Title
Company (the "Tax Escrow") an amount equal to the prorated
portion of 2005 Taxes attributable to the portion of such
calendar year prior to the Closing Date, determined by utilizing
applicable 2004 tax rates and by utilizing the Purchase Price as
the assumed value of the Property. Purchaser agrees to prosecute
the Tax Appeal diligently and in good faith in an effort to
minimize the 2005 Taxes. After a final and binding determination
has been made in the Tax Appeal, the proration of the 2005 Taxes
under this Agreement between Seller and Purchaser will be
adjusted, if necessary, based upon such final and binding
determination. The Tax Escrow will be deposited with the Title
Company pursuant to an escrow agreement in form acceptable to
Seller, Purchaser and the Title Company, and will be disbursed
under the terms and provisions of such escrow agreement.
2. Surveyor's Expenses. Seller agrees that Seller will pay, after the
Closing, up to but not in excess of $25,000.00 to cover surveying expenses
actually and reasonably charged by Bury + Partners, Inc. to Purchaser in
connection with Purchaser's relocation and/or release of existing easements
encumbering the Property. In order to secure Seller's obligation to make such
payments, Seller, Purchaser and the Title Company will enter into an escrow
agreement in form reasonably acceptable to all parties. If the escrowed funds
exceed the amount of the reimbursable surveying expenses provided for
hereinabove, then the excess funds will be disbursed to Seller and, in all
events, all funds which have not been disbursed on or before December 1, 2005,
will be returned to Seller.
3. eLoyalty Allowance. Seller agrees that Seller will pay up to but not in
excess of $80,046.00 to reimburse Purchaser for a portion of the "Allowance"
payable to eLoyalty Corporation under the terms of the "Leasehold Improvements
Agreement" attached as Exhibit "J" to the Second Amendment and Ratification of
River Place Pointe II Lease Agreement by and between Seller as Landlord and
eLoyalty Corporation as Tenant. Seller will pay such amount to Purchaser only
after: (a) eLoyalty Corporation has satisfied all of the applicable requirements
for receiving the "Allowance"; (b) Purchaser has paid the entire "Allowance" to
eLoyalty Corporation; and (c) Purchaser has delivered to Seller evidence
reasonably establishing all of the foregoing. Purchaser agrees and acknowledges
that Seller will have no obligation to pay any sums in excess of $80,046.00. All
additional amounts payable to eLoyalty will be the sole obligation of Purchaser
and Seller will not be required to reimburse Purchaser for any portion thereof.
If the escrowed funds exceed the amount of the reimbursable tenant improvement
expenses provided for hereinabove, then the excess funds will be disbursed to
Seller and, in all events, all funds which have not been disbursed on or before
December 1, 2005, will be returned to Seller.
- 2 -
4. Unipoint Allowance. Seller agrees that Seller will pay up to but not in
excess of $84,552.00 to reimburse Purchaser for a portion of the "Allowance"
payable to Unipoint Holdings, Inc. under the terms of the "Leasehold
Improvements Agreement" attached as Exhibit "G" to the Second Amendment and
Ratification of River Place Pointe II Lease Agreement by and between Seller as
Landlord and Unipoint Holdings, Inc. as Tenant. Seller will pay such amount to
Purchaser only after: (a) Unipoint has satisfied all of the applicable
requirements for receiving the "Allowance"; (b) Purchaser has paid the entire
"Allowance" to Unipoint Holdings, Inc.; and (c) Purchaser has delivered to
Seller evidence reasonably establishing all of the foregoing. Purchaser agrees
and acknowledges that Seller will have no obligation to pay any sums in excess
of $84,552.00. All additional amounts payable to Unipoint Holdings, Inc. will be
the sole obligation of Purchaser and Seller will not be required to reimburse
Purchaser for any portion thereof. If the escrowed funds exceed the amount of
the reimbursable tenant improvement expenses provided for hereinabove, then the
excess funds will be disbursed to Seller and, in all events, all funds which
have not been disbursed on or before December 1, 2005, will be returned to
Seller.
5. Acknowledgments Regarding Purchaser Sublease and Tenant Improvement
Loan. Seller and Purchaser hereby agree and acknowledge that: (a) Purchaser has
elected not to enter into the Purchaser Sublease; (b) Seller has previously
accepted a complete payoff of the Tenant Improvement Loan; (c) Purchaser is
making no payment to Seller for or in connection with the Tenant Improvement
Loan; and (d) Seller is not assigning to Purchaser any right, title or interest
in or to the Tenant Improvement Loan.
6. Defined Terms. All terms defined in the Agreement and delineated herein
by initial capital letters shall have the same meanings herein as are ascribed
to such terms in the Agreement, except to the extent that the meaning of any
such term is specifically modified by the provisions hereof. In addition, other
terms not defined in the Agreement but defined herein will, when delineated with
initial capital letters, have the meanings ascribed thereto in this amendment.
Terms and phrases which are not delineated by initial capital letters shall have
the meanings commonly ascribed thereto.
7. Effect of Amendment. Except as specifically amended by the provisions
hereof, the terms and provisions stated in the Agreement shall continue to
govern the rights and obligations of the parties thereunder, and all provisions
and covenants of the Agreement, as amended hereby, shall remain in full force
and effect. The terms of and provisions of the Agreement, as amended by this
instrument, are hereby ratified and confirmed, and this amendment and the
Agreement shall be construed as one instrument. In that regard, this amendment
and the Agreement, including all exhibits to such documents, constitute the
entire agreement between the parties relative to the subject matter hereof and
supersede all prior and contemporaneous agreements and understandings of the
parties in connection therewith. In the event of any inconsistency, the terms
and provisions of this amendment shall control over and modify the terms and
provisions of the Agreement.
- 3 -
8. Execution. To facilitate execution, this instrument may be executed in
any number of counterparts as may be convenient or necessary, and it shall not
be necessary that the signatures of all parties be contained in any one
counterpart hereof. Additionally, the parties hereto hereby covenant and agree
that, for purposes of facilitating the execution of this instrument: (a) the
signature pages taken from separate individually executed counterparts of this
instrument may be combined to form multiple fully executed counterparts; and (b)
a facsimile signature or a signature delivered by electronic mail shall be
deemed to be an original signature for all purposes. All executed counterparts
of this instrument shall be deemed to be originals, but all such counterparts,
when taken together, shall constitute one and the same agreement.
EXECUTED by the undersigned effective as of June 1, 2005.
SELLER: INVESTORS LIFE INSURANCE COMPANY OF
NORTH AMERICA, a Texas corporation
By: /s/ J. Bruce Boisture
Printed Name: J. Bruce Boisture
Title: Chairman & CEO
PURCHASER: RIVER PLACE POINTE, L.P., a Texas
limited partnership, for and on behalf
of itself and also as agent and attorney
in fact for La Jolla Marketplace, L.P.,
a California limited partnership,
Rancho Coachella Properties, L.P., a
California limited partnership, John M.
Tworoger, a married man, Q.D.C., LLC, an
Alaskan limited liability company,
William Arthur Shirley and Frances W.
Shirley, husband and wife, Mark D.
McLaren and Kathleen C. McLaren, husband
and wife, RNC Resources, Inc., a
California corporation, John M.
Tworoger, as trustee of the Roger Swift
Irrevocable Trust U.D.T. 11/15/1994, W.
Creighton Gallaway and Charlotte C.
Gallaway, husband and wife, William M.
Shannon and Arlene D. Shannon, husband
and wife, James W. Patrick and Debra W.
Patrick husband and wife, Brenda
Tworoger, a married woman, Greg A.
Rogers and Kathryn L. Rogers, husband
and wife, and Sharon S. Tworoger, an
unmarried woman
BY: ASPEN GROWTH PROPERTIES, INC., a
Texas corporation, its general partner
By: /s/ John M. Tworoger
John M. Tworoger, President
- 4 -