2010/08/04 Council Agenda Packet

( RA I .1. LTA(..1.. AMENDMENT NO. 5 TO PROPERTY PURCHASE AGREEMENT (Colby Avenue & Wall Street, Everett, Washington) THIS AMENDMENT NO. 5 TO PROPERTY PURCHASE AGREEMENT ("Amendment") is made and entered into as of the day of August, 2010, by and between the CITY OF EVERETT, a Washington municipal corporation, ("Seller") and TOUCHSTONE CORPORATION, a Washington corporation, AND/OR ASSIGNS ("Purchaser"). RECITALS A. Purchaser and Seller are the parties to the Property Purchase Agreement dated October 16, 2008, as amended by Amendment No. 1 to Property Purchase Agreement dated April 14, 2009, as further amended by Amendment No.2 to Property Purchase Agreement dated October 7, 2009, as further amended by Amendment No. 3 to Property Purchase Agreement dated February 10, 2010, as further amended by Amendment No. 4 to Property Purchase Agreement dated June 16, 2010 (the "Agreement"). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Agreement. B. In connection with Purchaser's feasibility contingencies related to the acquisition of the Property and the design of Purchaser's Project, Purchaser and Seller have agreed upon certain terms and conditions of the transaction under the Agreement to address specific feasibility issues that have been identified, as well as Project design, development, and financing issues that must be resolved prior to Closing. C. Purchaser and Seller now desire to make this Amendment in order to amend the Agreement to incorporate the agreed upon terms and conditions to resolve such feasibility, design, development, and financing matters. Now, therefore, in consideration of the foregoing and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree to amend the Agreement as follows: 1. Payment of Purchase Price. Section 2.a of the Agreement is hereby amended and restated as follows: The purchase price for the Property shall be One Million Six Hundred Thousand and 00/100 Dollars ($1,600,000.00) ("Purchase Price"), payable at Closing by Purchaser's execution and delivery of a purchase money promissory note in the amount of the Purchase Price (the "Purchase Money Promissory Note"). The Purchase Money Promissory Note shall be secured by a deed of trust to be recorded against the Property at Closing (the "Purchase Money Deed of Trust"). The Purchase Money Deed of Trust shall be senior in priority to any other deed of trust recorded against the Property and shall be senior in priority to all development or construction related financing obtained by Purchaser, except that Seller shall subordinate at Closing the Purchase Money Deed of Trust to one deed 1 DRAFT DRAFT.