FIRST AMENDMENT TO PA V2 9-30-2020 FINAL.PDF
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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
ESCROW INSTRUCTIONS (this “First Amendment”) is made as of October __, 2020 (the
“Effective Date”), by and between MARICOPA COUNTY, a political subdivision of the State of
Arizona (“Buyer”), and DOWNTOWN PHX STORAGE LLC, a Delaware limited liability
company (“DPS”), and DOWNTOWN PHX STORAGE II, LLC, a Delaware limited liability
company (“DPS II”, and together with DPS, “Seller”). Buyer and Seller may collectively be
referred to herein as the Parties, or individually as a Party.
RECITALS
A.
Seller and Buyer entered into that certain Purchase and Sale Agreement and Escrow
Instructions dated July 31, 2020 (the “Purchase Agreement”) with respect to the real property
described in the Purchase Agreement.
B.
The Parties hereto desire to amend the Purchase Agreement on the terms and
conditions as set forth herein.
AGREEMENT
In consideration of the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1.
All capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement. The Recitals, by this reference, are incorporated
herein.
2.
Buyer hereby waives its right to terminate the Purchase Agreement pursuant to
Section 4.01(c) thereof and acknowledges and agrees that the Inspection Period is terminated
effective as of the Effective Date.
3.
Buyer hereby acknowledges and agrees that Seller has completed the 5th Avenue
Building Demolition Work in accordance with the Work Standards and that Seller has delivered
to Buyer a Certificate of Completion (or its equivalent) for the 5th Ave Building Demolition Work
issued by the City of Phoenix.
4.
Notwithstanding anything to the contrary in Sections 1.04(a) and 1.04(d)(2) of the
Purchase Agreement regarding the timing of the Closing Date, but contingent upon the closing of
the Underlying Transaction occurring immediately prior to the Close of Escrow of the transaction
contemplated by the Purchase Agreement, the Parties hereby agree that the Closing Date shall be
October 15, 2020. In the event that the closing of the Underlying Transaction does not occur on
October 15, 2020, the Close of Escrow of the transaction contemplated by the Purchase Agreement
shall be the date on which the Underlying Transaction actually closes escrow, which date shall not
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be later than November 1, 2020. In the event that the closing of the Underlying Transaction is not
expected to occur on October 15, 2020, Seller shall promptly notify Buyer (by email to Michelle
Colby and Keith Lammersen) thereof and of the date on which the closing of the Underlying
Transaction is expected to occur.
5.
Pursuant to Section 1.04(d) of the Purchase Agreement, Buyer hereby agrees to
deliver the Purchase Price (plus or minus the prorations and credits as provided for in the Purchase
Agreement) to Escrow Agent on the business day prior to the date on which the closing of the
Underlying Transaction is scheduled to occur, which date is, as of the Effective Date, is anticipated
to be October 15, 2020. Buyer hereby authorizes Escrow Agent to promptly (but in no event by
later than 10:00 a.m., Phoenix, Arizona time, on the date on which the closing of the Underlying
Transaction is scheduled to occur) deliver to the Underlying Escrow Agent that portion of the
Purchase Price necessary for, and solely for the purpose of facilitating, Seller to close escrow on
the Underlying Transaction.
6.
The parties hereby agree that the Purchase Price shall be decreased by $20,000.00
per month for each month that the Closing Date occurs prior to December 1, 2020 (prorated for
each partial month on a 30-day basis). Accordingly, in the event that the Closing occurs on
October 15, 2020, the Purchase Price shall be reduced by $30,000.00 from $14,000,000.00 to
$13,970,000.00.
7.
The requirement for Buyer to deliver the Additional Earnest Money Deposit is
hereby deleted.
8.
The Parties shall reasonably cooperate with each other, Escrow Agent, and the
Underlying Escrow Agent in connection with the Close of Escrow and the closing of the
Underlying Transaction so as to ensure that the Close of Escrow and the closing of the Underlying
Transaction occur on the same day as efficiently as possible under the circumstances.
9.
Notwithstanding anything to the contrary in Section 1.07(e) of the Purchase
Agreement, Buyer hereby agrees to waive receipt of the executed Tenant Estoppel as a condition
to Buyer’s obligation to purchase the Property. Notwithstanding the foregoing, Seller shall use
commercially reasonable efforts to deliver an executed Tenant Estoppel from the tenant under the
Lease prior to the Closing Date in the form attached hereto as Exhibit A.
10.
The terms and conditions of all provisions of the Purchase Agreement regarding
the Post-Closing Work and the Escrow Holdback, including without limitation Sections 1.04(c)(2),
1.04(c)(3), and 4.04 of the Purchase Agreement, remain in full force and effect and shall survive
the Close of Escrow and the recording of the Special Warranty Deed.
11.
Notwithstanding anything to the contrary in Section 1.07(f) of the Purchase
Agreement, Buyer hereby agrees to waive Seller’s obligation to present the draft form of the Bill
of Sale and attached list of Personal Property to Buyer for review and approval no later than the
date that is sixty (60) days prior to the Close of Escrow. Notwithstanding the foregoing, in the
event that the Underlying Seller proposes to execute a Bill of Sale to Seller for the Personal
Property, if any, Seller shall use commercially reasonable efforts to deliver the draft form of the
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Bill of Sale and attached list of Personal Property to Buyer for review and approval as soon as is
practicable under the circumstances.
12.
The Seller hereby represents that, to the best of its actual knowledge as of the
Effective Date, there are no Contracts.
13.
Except as otherwise expressly modified in this First Amendment, the terms and
conditions of the Purchase Agreement are and shall remain in full force and effect. In the event of
any conflict or inconsistency between the terms and provisions of the Purchase Agreement and the
terms and provisions of this First Amendment, the terms and provisions of this First Amendment shall
govern and control.
14.
This First Amendment may be executed in any number of counterparts, all of which
together shall be deemed to constitute one instrument, and each of which shall be deemed an
original. This First Amendment may be executed by facsimile or scanned signatures, and each
party agrees that after execution by facsimile or scanned signatures, upon request of any party,
each party shall deliver to the other party an executed original of this First Amendment; however,
notwithstanding the foregoing, facsimile and scanned signatures shall be deemed to be originals
and effective as of the date of delivery, regardless whether signed originals are thereafter executed.
15.
This First Amendment is subject to cancelation pursuant to A.R.S. § 38-511.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the Effective
Date.
SELLER:
BUYER:
DOWNTOWN PHX STORAGE, LLC, a
Delaware limited liability company
By: _________________________________
James R. Wentworth Date
Authorized Signatory
By: _________________________________
Stephen L. Clark Date
Authorized Signatory
DOWNTOWN PHX STORAGE II, LLC, a
Delaware limited liability company
By: _________________________________
James R. Wentworth Date
Authorized Signatory
By: _________________________________
Stephen L. Clark Date
Authorized Signatory
MARICOPA COUNTY,
a political subdivision of the State of Arizona
By:_______________________________
Clint Hickman
Chairman of the Board of Supervisors
Date: _____________________________
ATTEST:
____________________________________
Clerk of the Board Date
APPROVED AS TO FORM:
___________________________________
Deputy County Attorney Date
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ACKNOWLEDGEMENT OF BUYER
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of
__________________, 2020, by ______________________, the Chairman of the Board of
Supervisors, on behalf of Maricopa County, Arizona.
Notary Public (signature)
My Commission Expires: ______________
ACKNOWLEDGEMENT OF SELLER
STATE OF ARIZONA
)
) SS.
COUNTY OF MARICOPA
)
The foregoing instrument was acknowledged before me this ___ day of
__________________, 2020, by James R. Wentworth, Authorized Signatory, on behalf of
Downtown PHX Storage, LLC, a Delaware limited liability company, and Downtown PHX
Storage II, LLC, a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
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STATE OF KANSAS
)
) SS.
COUNTY OF SEDGWICK
)
The foregoing instrument was acknowledged before me this ___ day of
__________________, 2020, by Stephen L. Clark, Authorized Signatory, on behalf of Downtown
PHX Storage, LLC, a Delaware limited liability company, and Downtown PHX Storage II, LLC,
a Delaware limited liability company.
Notary Public (signature)
My Commission Expires: ______________
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EXHIBIT A
TENANT ESTOPPEL FORM
DOWNTOWN PHX STORAGE II, LLC, and its successors or assigns (“Buyer”)
802 N. 3rd Ave
Phoenix, Arizona 85003
Attn: James R. Wentworth
Re:
The commercial property located at 401 W. Madison Street (called the “401 Property”)
and 441 W. Madison Street, Phoenix, Arizona 85003 (called the “441 Property”, and
together with the 401 Property, the “Property”)
Ladies and Gentlemen:
The Pressroom LLC, an Arizona Limited Liability Company (“Tenant”) hereby certifies to Buyer,
Maricopa County, a political subdivision of the State of Arizona (the “County”), and Buyer’s
lender, if any, for the acquisition of the Property (the “Lender”) and their respective successors
and/or assigns as follows, with the Tenant understanding that such parties are relying on such
certification in connection with the proposed purchase and financing of the Property by Buyer, and
the subsequent proposed purchase of the Property by the County from Buyer:
1.
The Tenant is the lessee under a lease (the “Lease”) entered into by and between
Wisotsky Properties, LLC, and Arizona Limited Liability Company, (the “Landlord) and Tenant
on July 1, 2019, covering those certain premises containing approximately 12,820 gross square
feet (the “Premises”) in the building located at 441 West Madison Street in Phoenix, Arizona.
There is no guaranty executed in connection with the Lease.
2.
The Lease has not been assigned, modified, supplemented, altered or amended in
any respect and is the only lease or agreement between the undersigned and Landlord affecting the
Premises.
3.
All work to be performed by the Landlord for Tenant under the Lease has been
performed as required under the Lease and has been accepted by Tenant. All allowances to be
paid by Landlord to Tenant, including allowances for tenant improvements, moving expenses or
other items, have been paid. Tenant is not entitled to any concession, abatement, rebate, allowance
or free or reduced rent for any period after the date hereof.
4.
The Lease is: (a) in full force and effect; (b) free from default by Landlord and free
from any event which could become a default by Landlord under the Lease; and (c) except as set
forth below, to Tenant’s knowledge, free from default by Tenant and free from any event which
could become a default by Tenant under the Lease. Tenant has no claims against the Landlord or
offsets or defenses against rent, and there are no disputes with the Landlord. Tenant hereby
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acknowledges
and
agrees
that
the
following
defaults
exist
under
the
Lease:
___________________________________________________________________.
5.
The Lease term expires on April 1, 2024, subject to the termination rights contained
in Section 15 of the Lease. The fixed rent presently being paid is $____________________ per
month, and all fixed rent is due on or before the ______________ day of each calendar month. All
rent, charges and other obligations on the part of the undersigned under the Lease have been paid
through ____________________, 20__. No rent, other than for the current month, has been paid
in advance.
6.
In addition to the above-referenced fixed rent, Tenant ___ pays ___ does not pay a
pro-rata share of the monthly electric utility cost. If Tenant indicated in the preceding sentence
that it pays a portion of the monthly electric utility cost, Tenant’s pro rata share thereof is _____%.
7.
Tenant has no right or option to extend or renew the term of the Lease, or to lease
other space in the Property.
8.
Tenant has no right or option to terminate or cancel the Lease (except as provided
in Section 15 of the Lease). Landlord and Tenant have the right to terminate the Lease in
accordance with and subject to the provisions of Section 15 of the Lease.
9.
The Lease contains, and the undersigned has, no options to purchase or rights of
first refusal or other rights to purchase the Premises or any part thereof or the Property of which
the Premises are a part. The Lease is automatically and fully subordinate to the lien of any Lender
that may provide financing from time to time with respect to the Property.
10.
Tenant has full possession of the Premises and has not sublet any part of the
Premises.
11.
Tenant has made no security deposit under the Lease.
12.
No payments other than rent have been made under the Lease. There are no set-
offs or credits against or rights to withhold future accruing rents or other sums due under the Lease.
13.
Tenant is not (as of the date of this estoppel) presently engaged in active discussions
or negotiations with Seller (or Seller's leasing broker) relating to any of the following: (a) the
deletion of or amendment to the termination right referenced above; (b) an extension of the
expiration date stated above; (c) expansion or contraction of the size of the Premises identified
above; (d) any reduction or increase in the monthly fixed, minimum or basic rent identified above;
or (e) any expenditure by Seller for future modifications or improvements to the Premises.
14.
This certification is made with the knowledge that it will be relied upon in
connection with the purchase of the Property by Buyer and may be relied upon by the Buyer, the
County, Lender and their respective successors and assigns.
Executed this ____ day of __________, 2020.
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TENANT:
THE PRESSROOM LLC,
an Arizona limited liability company
By: ___________________________________
Signature
Name: _________________________________
Title: __________________________________