Exhibit 10.21


 


THIRD AMENDMENT TO

LOAN DOCUMENTS PURCHASE AND SALE AGREEMENT


 


THIS THIRD AMENDMENT TO LOAN
DOCUMENTS PURCHASE AND SALE AGREEMENT (this “Third
Amendment”), effective as of the 13th day of July, 2009, is
entered into by and between CORUS BANK, N.A., a national banking
association, having a mailing address of 3959 N. Lincoln Avenue, Chicago,
Illinois 60613 (“Seller”), and CHRISTIAN TYLER PROPERTIES, LLC, having a
mailing address of 403 East Madison Street, Suite 400, Tampa, Florida
33602 (“Purchaser”).


 


RECITALS:


 


WHEREAS, Seller and
Purchaser entered into that certain Loan Documents Purchase and Sale Agreement
dated June 8, 2009 (the “Original Agreement”), as amended by
that certain First Amendment to Loan Documents Purchase and Sale Agreement dated
July 2, 2009 (the “First Amendment”), and as amended
by that certain Second Amendment to Loan Documents Purchase and Sale Agreement
dated July 2, 2009 (the “Second Amendment”; the Original
Agreement, the First Amendment and the Second Amendment are sometimes
collectively referred to herein as the “Purchase and Sale
Agreement”); and


 


WHEREAS, Seller and
Purchaser desire to amend the Purchase and Sale Agreement in accordance with
the terms set forth herein.


 


NOW THEREFORE, in
consideration of the mutual promises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1)             Capitalized Terms. Any
capitalized term used herein, but not defined herein, shall have the meaning
ascribed to it in the Original Agreement.


 


2)             Due Diligence Period. The words “July 13,
2009” found in the third sentence of Subsection 2(b) of the Original
Agreement are hereby deleted in their entirety, and the date “July 27,
2009” is hereby inserted in lieu thereof, so that the Due Diligence Period
shall expire at 5:00 p.m. (EST) on July 27, 2009.


 


3)             Deposit. The Deposit currently held by the Escrow Agent equals $300,000.00.
Notwithstanding anything to the contrary contained in the Purchase and Sale
Agreement, commencing upon the execution of this Third Amendment, $100,000.00
of the Deposit (the “Extension Deposit”) shall be
immediately released by the Escrow Agent and paid to Seller in consideration of
the Due Diligence Period being extended to July 27, 2009. The Extension
Deposit is hereby deemed immediately earned by Seller, and shall be
nonrefundable to Purchaser for any reason; provided, however, the Extension
Deposit shall be applied as part payment of the Purchase Price made by
Purchaser at the Closing. Notwithstanding anything to the contrary contained in
the Purchase and Sale Agreement, commencing upon the execution of this Third
Amendment, the remaining $200,000.00 of the Deposit (the “Remaining
Deposit”) shall be nonrefundable to Purchaser except in the
event that, on or before the expiration of the Due Diligence Period, Purchaser
is unable to obtain a loan commitment from Freddie Mac or other third party
lender(s) in the amount of not less than $18,000,000.00 (the “Loan Commitment”)


 

















 


or
in the event of a default by Seller under the terms of the Purchase and Sale
Agreement. Purchaser agrees to pursue the Loan Commitment in good faith and to
provide reasonable evidence of Purchaser’s filing of the application upon
Seller’s request for same. If Purchaser terminates the Purchase and Sale
Agreement prior to the expiration of the Due Diligence Period because of its
failure to obtain the Loan Commitment, Escrow Agent is hereby instructed to
hold the Remaining Deposit in escrow until such time as Purchaser provides
reasonable evidence to Seller that Purchaser was unable to obtain the Loan
Commitment despite good faith efforts to do so. Promptly upon the expiration of
the Due Diligence Period, Escrow Agent shall release the Remaining Deposit to
Seller via wire transfer per the instructions to be provided by Seller to
Escrow Agent. On the Closing, the Remaining Deposit shall be applied as part
payment of the Purchase Price made by Purchaser. Otherwise, the Remaining
Deposit shall be nonrefundable to Purchaser after the expiration of the Due
Diligence Period except in the event of a default by Seller under the terms of
the Purchase and Sale Agreement.


 


4)             Closing. The words “on or before the
date which is forty (40) days following the Effective Date of this Agreement”
found in subparagraph 2.(c) of the Original Agreement are hereby deleted
in their entirety, and the date “July 31, 2009” is hereby inserted in lieu
thereof, so that the Closing Date shall be July 31, 2009.


 


5)             Extension Periods. Purchaser may
extend the date for Closing for up to seven (7) periods of ten (10) days
each (each an “Extension Period”) by providing (i) no
less than five (5) days before the then-scheduled Closing Date, written
notice (each an “Extension Notice”) to Seller of
Purchaser’s election to extend the date for Closing in accordance herewith, and
(ii) payment to Seller of the amounts set forth below:


 


a)                                      First Extension
Period. Purchaser shall pay Seller for the initial ten (10) day
Extension Period an extension fee in the amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) (the “First Extension
Fee”) in consideration of the extension of the Closing
Date. Payment of the First Extension Fee shall accompany the Extension Notice
and shall be made to Seller at the notice address set forth in Section 16
of the Purchase and Sale Agreement. Purchaser shall not receive a credit
against the Purchase Price payable at Closing for the First Extension Fee. The
First Extension Fee shall be nonrefundable except in the event of a default by
Seller under the terms of the Purchase and Sale Agreement.


 


b)                                     Second
Extension Period. Purchaser shall pay Seller for the second ten (10) day
Extension Period an extension fee in the amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) (the “Second Extension
Fee”) in consideration of the extension of the Closing
Date. Payment of the Second Extension Fee shall accompany the Extension Notice
and shall be made to Seller at the notice address set forth in Section 16
of the Purchase and Sale Agreement. Purchaser shall not receive a credit
against the Purchase Price payable at Closing for the Second Extension Fee. The
Second Extension Fee shall be nonrefundable except in the event of a default by
Seller under the terms of the Purchase and Sale Agreement.


 


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c)                                      Third Extension
Period. Purchaser shall pay Seller for the second ten (10) day Extension
Period an extension fee in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) (the “Third Extension Fee”) in
consideration of the extension of the Closing Date. Payment of the Third
Extension Fee shall accompany the Extension Notice and shall be made to Seller
at the notice address set forth in Section 16 of the Purchase and Sale
Agreement. Purchaser shall not receive a credit against the Purchase Price
payable at Closing for the Third Extension Fee. The Third Extension Fee shall
be nonrefundable except in the event of a default by Seller under the terms of
the Purchase and Sale Agreement.


 


d)                                     Fourth
Extension Period. Purchaser shall pay Seller for the Fourth ten (10) day
Extension Period an extension fee in the amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) (the “Fourth Extension
Fee”) in consideration of the extension of the Closing
Date. Payment of the Fourth Extension Fee shall accompany the Extension Notice
and shall be made to Seller at the notice address set forth in Section 16
of the Purchase and Sale Agreement. Purchaser shall not receive a credit
against the Purchase Price payable at Closing for the Fourth Extension Fee. The
Fourth Extension Fee shall be nonrefundable except in the event of a default by
Seller under the terms of the Purchase and Sale Agreement.


 


e)                                      Fifth Extension
Period. Purchaser shall pay Seller for the Fifth ten (10) day Extension
Period an extension fee in the amount of One Hundred Thousand and No/100
Dollars ($100,000.00) (the “Fifth Extension Fee”) in
consideration of the extension of the Closing Date. Payment of the Fifth
Extension Fee shall accompany the Extension Notice and shall be made to Seller
at the notice address set forth in Section 16 of the Purchase and Sale
Agreement. Purchaser shall not receive a credit against the Purchase Price
payable at Closing for the Fifth Extension Fee. The Fifth Extension Fee shall
be nonrefundable except in the event of a default by Seller under the terms of
the Purchase and Sale Agreement.


 


f)                                        Sixth Extension
Period. Purchaser shall pay Seller for the Sixth ten (10) day Extension
Period an extension fee in the amount of One Hundred Thousand and No/100
Dollars ($100,000.00) (the “Sixth Extension Fee”) in
consideration of the extension of the Closing Date. Payment of the Sixth
Extension Fee shall accompany the Extension Notice and shall be made to Seller
at the notice address set forth in Section 16 of the Purchase and Sale
Agreement. Purchaser shall not receive a credit against the Purchase Price
payable at Closing for the Sixth Extension Fee. The Sixth Extension Fee shall
be nonrefundable except in the event of a default by Seller under the terms of
the Purchase and Sale Agreement.


 


g)                                     Seventh
Extension Period. Purchaser shall pay Seller for the Seventh ten (10) day
Extension Period an extension fee in the amount of One Hundred Thousand and
No/100 Dollars ($100,000.00) (the “Seventh Extension


 


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Fee”)
in consideration of the extension of the Closing Date. Payment of the
Seventh Extension Fee shall accompany the Extension Notice and shall be made to
Seller at the notice address set forth in Section 16 of the Purchase and
Sale Agreement. Purchaser shall not receive a credit against the Purchase Price
payable at Closing for the Seventh Extension Fee. The Seventh Extension Fee
shall be nonrefundable except in the event of a default by Seller under the
terms of the Purchase and Sale Agreement.


 


6)             Second Amendment. For the
purposes of clarity, Sections 3 and 4 of the Second Amendment are hereby
deleted in their entirety as they have been replaced with Sections 3 and 5 of
this Third Amendment, respectively.


 


7)             Ratification. The provisions
of this Third Amendment shall control over any contrary provisions of the
Purchase and Sale Agreement. Purchaser and Seller hereby agree that except to
the extent expressly amended herein, all terms and conditions of the Purchase
and Sale Agreement are hereby reaffirmed and shall remain in full force and
effect.


 


8)             Counterparts. This Third
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of a facsimile of this Third
Amendment executed by a party hereto shall be deemed to constitute delivery of
an original hereof executed by such party.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed
as of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CORUS
  BANK, N.A.,  a
  national banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Chris Barkidjija

  
	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CHRISTIAN
  TYLER PROPERTIES, LLC,  a
  Florida limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  The Kirk D. Eicholtz Revocable Trust of 1996, its sole
  managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kirk D. Eicholtz 

  
	
   

  	
   

  	
   

  	
  Kirk D. Eicholtz, Trustee

  



 


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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed
as of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CORUS
  BANK, N.A.,  a
  national banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Chris Barkidjija

  
	
   

  	
  Name:

  	
  Chris Barkidjija

  
	
   

  	
  Title:

  	
  First Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CHRISTIAN
  TYLER PROPERTIES, LLC,  a
  Florida limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  The Kirk D. Eicholtz Revocable Trust of 1996, its sole
  managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kirk D. Eicholtz 

  
	
   

  	
   

  	
   

  	
  Kirk D. Eicholtz, Trustee

  



 


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IN WITNESS WHEREOF, Escrow
Agent has caused this Third Amendment to be duly executed as of July            ,
2009 solely for the purposes of acknowledging Section 3 hereof.


 


 


	
   

  	
  ESCROW
  AGENT:

  
	
   

  	
   

  
	
   

  	
  COLLIERS ARNOLD COMMERCIAL REAL ESTATE SERVICES

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title: