EXHIBIT 10.20
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is made
and entered into as of the 7th day of October, 1997, by and between BOETTCHER
WESTERN PROPERTIES III LTD., a Colorado limited partnership ("Seller"), and M.
PHILLIP CARDOZA ("Buyer").
Recitals
This Amendment is made with reference to the following facts:
A. Pursuant to a Purchase and Sale Agreement and Joint Escrow
Instructions dated as of July 17, 1997 (the "Purchase Agreement"), Seller agreed
to sell, and Buyer agreed to purchase, the retail center owned by Seller and
commonly known as "Venetian Square Shopping Center" located in Stockton,
California (the "Center").
B. As contemplated by the Purchase Agreement, Buyer had until August
15, 1997 (the "Financing Contingency Deadline"), to either satisfy certain
financing contingencies enabling Buyer to proceed with the purchase of the
Center, or terminate the Purchase Agreement. Buyer was unable to satisfy such
financing contingencies prior to the expiration of the Financing Contingency
Deadline, and consequently terminated the Purchase Agreement in accordance with
the terms and conditions thereof.
C. Seller and Buyer now desire to revive and reinstate the Purchase
Agreement, to amend and modify the Purchase Agreement in certain respects, and
to proceed with the purchase and sale of the Center contemplated by the Purchase
Agreement, on the terms and subject to the conditions set forth in this
Amendment.
Amendment
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, Seller and Buyer hereby agree as follows:
1. Incorporation of Recitals; Definitions. Each of the foregoing
recitals is hereby incorporated in full herein and made a part of this
Amendment. Any initially capitalized term not otherwise defined in this
Amendment has the same meaning herein as ascribed to such term in the Purchase
Agreement.
2. Reinstatement of Purchase Agreement. The Purchase Agreement, as
amended and modified by this Amendment, is hereby revived and reinstated and
shall continue in full force and effect as if Buyer had never exercised its
right to terminate the Purchase Agreement in accordance with the terms and
conditions thereof.
3. Waiver of Contingencies. Buyer hereby acknowledges and agrees
that all of the conditions to Buyer's obligation to purchase the Property
contained in Article 6 of the Purchase
Agreement, including, without limitation, Buyer's review of the documents
described in Section 6.2 of the Purchase Agreement and the financing and leasing
contingencies described in Section 6.3 of the Purchase Agreement, have been duly
satisfied or waived by Buyer, and Buyer's right to terminate the Purchase
Agreement pursuant to Section 6.4 of the Purchase Agreement is no longer of any
force or effect whatsoever.
4. Delivery of Additional Deposit. Not later than one business day
following the mutual execution and delivery of this Amendment, Buyer shall
deliver to Escrow Holder the Additional Deposit required pursuant to Section 4.2
of the Purchase Agreement. The Additional Deposit, together with the Initial
Deposit currently held by Escrow Holder and all interest accrued thereon, shall
be applied against the Purchase Price payable by Buyer for the Property at
Closing, but shall be non-refundable to Buyer under all circumstances other than
(i) a breach by Seller of its obligation to sell the Property to Buyer in
accordance with the terms and conditions contained in the Purchase Agreement, as
amended and modified by this Amendment, (ii) Seller's failure to obtain the
consent of the Limited Partners to the transactions contemplated by the Purchase
Agreement in accordance with the provisions of Section 3.3.4 thereof, or (iii)
Seller's failure to contribute its share of the premium for the "Environmental
Liability Policy" (as defined in Paragraph 7 below).
5. Transfer Liability Policy. The following is hereby added as new
Section 3.2.5 of the Purchase Agreement:
"3.2.5 Property Transfer Liability Policy. A Property Transfer
Liability Policy of insurance issued by Steadfast Insurance Company
('Steadfast') or another insurance carrier selected by Seller at
Seller's expense on a 'claims-made' basis (the 'Transfer Liability
Policy') consistent in all material respects with Steadfast's Form No.
STF-PTL-123-A CW (5/95) with coverage in the amount of $2,000,000 per
occurrence and $2,000,000 in the aggregate, a term of ten years, and a
deductible not to exceed $100,000. The Transfer Liability Policy
shall name Buyer as primary insured, and shall name Seller as an
additional insured."
6. Target Approval Date. The Target Approval Date contemplated by
Section 3.3.4 of the Purchase Agreement is hereby extended until the date 90
days following the date on which Buyer delivers the Additional Deposit to Escrow
Holder. Seller agrees to promptly initiate the approval process and to
diligently pursue obtaining such approval in accordance with the provisions of
Section 3.3.4 of the Purchase Agreement.
7. Resolution of Pending Environmental Investigation. The following
is hereby added as new Section 3.4 of the Purchase Agreement:
"3.4 Resolution of Pending Environmental Investigation. Without
limiting the generality of the provisions of Section 3.3 above,
Seller's obligation to sell the Property to Buyer is further
conditioned upon Seller's having received written notice (the 'Closure
Letter') from San Joaquin County, California (the 'County'),
confirming that the County has recommended that all pending
investigations of the environmental
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condition of the Property be terminated, closed and discontinued.
Seller agrees to use reasonable efforts and due diligence to obtain
the Closure Letter as soon as reasonably practicable; provided, that
in the event that the Closure Letter has not been received on or
before December 31, 1997 (or by June 30, 1998, in the event that Buyer
and Seller elect to extend the time period for obtaining the Closure
Letter pursuant to clause (ii) below), (i) Buyer and Seller may
mutually agree to waive receipt of the Closure Letter as a condition
to Seller's obligations hereunder, in which event Seller shall be
released from and indemnified and held harmless against any and all
claims, losses, damages, liabilities, costs and expenses, including
attorneys' fees and court costs, arising from or in any way related to
the environmental condition of the Property currently under
investigation; (ii) Buyer and Seller may mutually agree to continue to
pursue issuance of the Closure Letter by the County for an additional
period of six (6) months expiring on June 30, 1998, at which time, if
the Closure Letter has not been received, the parties may exercise
either of the options described in clauses (i), (iii) or (iv) hereof;
(iii) either party may elect to purchase an environmental liability
policy of insurance with coverage in such amounts as may be reasonably
acceptable to Seller (the 'Environmental Liability Policy') insuring
Seller against liability for any environmental conditions existing at
the Property under investigation by the County or other governmental
agencies as of the date of Closing, or (iv) Buyer may elect to
terminate this Agreement. In the event that either party elects to
purchase the Environmental Liability Policy, which policy shall name
both Seller and Buyer as insureds, Seller and Buyer shall each pay
one-half of the cost of obtaining the Environmental Liability Policy,
up to a maximum of $50,000 each; provided, that in the event that the
Environmental Liability Policy is not commercially available for a
premium of not more than $100,000, Buyer may elect to pay the full
amount of the premium in excess of $50,000 in order to obtain the
Environmental Liability Policy, such that Seller's contribution
towards the cost of obtaining the Environmental Liability Policy shall
in no event exceed the lesser of (a) one-half of the premium payable
for such policy, or (b) $50,000. In the event of any termination of
this Agreement pursuant to this Section 3.4, the Deposit shall be
immediately released to Seller and thereafter, the parties shall be
relieved from any further obligation or liability to the other
pursuant to this Agreement except for those obligations which
expressly survive the Closing or earlier termination of this Agreement
pursuant to the provisions of Article 9 below; provided, that Buyer
shall return all of Seller's Deliveries to Seller and shall provide
Seller with copies of all reports, surveys, assessments, analyses or
summaries thereof prepared by or on behalf of Buyer in connection with
its investigations of the Property pursuant to Article 6 below."
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The following is hereby added as new clause (iv) of Section 8.3 of the
Purchase Agreement, and existing clause (iv) is hereby renumbered as clause (v):
"(iv) the amount of Buyer's contribution against the premium payable
for the Environmental Liability Policy (if applicable) in accordance
with Section 3.4 above,..."
The following is hereby added as new clause (iv) of Section 8.4 of the
Purchase Agreement, and existing clause (iv) is hereby renumbered as clause (v):
"(iv) one-half of the premium payable for the Environmental Liability
Policy (if applicable), not to exceed $50,000..."
8. Amendment of Closing Date. The first sentence of Section 7.1 of
the Purchase Agreement is hereby amended to read in its entirety as follows:
"The close of Escrow (the 'Closing') shall take place at the offices
of Escrow Holder on the fifteenth (15th) day after the later to occur
of (i) the date on which Seller notifies Buyer that Seller has
obtained all necessary consents from its Limited Partners as
contemplated by Section 3.3.4 above, (ii) the date on which Seller
notifies Buyer that Seller has received the Closure Letter from the
County, (ii) the date on which the parties agree in writing to waive
waived receipt of such Closure Letter as a condition to Seller's
obligations hereunder in accordance with the provisions of Section 3.4
above, or (iii) the date on which the Environmental Liability Policy
or a commitment to issue such policy has been received by
Seller;provided, that the date of Closing may, by mutual agreement of
the parties, be held on an earlier date."
9. No Further Amendment. Except as expressly amended and modified
by this Amendment, the Purchase Agreement, as revived and reinstated by this
Amendment, remains unmodified, is hereby ratified, confirmed and incorporated in
full herein, and shall be deemed in full force and effect as of the date hereof.
10. Counterparts. This Amendment may be executed in two or more
identical counterparts, each of which shall be deemed an original, and all of
which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the day and year first set forth above.
SELLER:
BOETTCHER WESTERN PROPERTIES III
LTD., a Colorado limited partnership
By: Boettcher Properties, Ltd.,
its Managing General Partner
By: BPL Holdings, Inc.,
its Managing General Partner
By:/s/ Daniel D. Williams
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Daniel D. Williams,
Director
BUYER:
/s/ M. Phillip Cardoza
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M. Phillip Cardoza
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