Exhibit 10.4
THIRD AMENDMENT TO AMENDED AND RESTATED
AGREEMENT OF SALE AND PURCHASE
THIS THIRD AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF SALE AND PURCHASE
("Amendment") is being made and entered into as of June 30, 2003, by and
between BANK OF AMERICA, N.A. ("Seller") , and FIRST STATES GROUP, L.P.
("Purchaser").
BACKGROUND
A. Seller and Purchaser have entered into an Amended and Restated Agreement
of Sale and Purchase dated April 16, 2003, as amended by a certain First
Amendment to Amended and Restated Agreement of Sale and Purchase dated May 16,
2003, and by a certain Second Amendment to Amended and Restated Agreement of
Sale and Purchase dated June 25, 2003 (as so amended, the "Agreement") for the
sale and purchase of various properties as more particularly described therein;
B. Seller and Purchaser desire to further amend the Agreement as set forth
herein.
NOW, THEREFORE, 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. The foregoing recitals are true and correct and are hereby incorporated
as a part of this Amendment. In the event of any conflict between this Amendment
and the Agreement, the terms in this Amendment shall prevail and control.
2. Seller and Purchaser agree to delete from the Agreement the defined term
"Approved Closing Costs" and all references thereto, including without
limitation, references appearing in the following provisions and Sections:
Section 1, in the definition of "Annual Basic Rent Factor," Section 1, the
definition of "Approved Closing Costs," Section 2(b), Section 2(c), Section 4,
Section 6(b), Section 13, Section 19(d) and Section 19(f). Additionally, the
parties agree that the Closing Properties and the Agreed Upon Percentage for
each Closing Property are as set forth on Exhibit A as appended to this
Amendment.
3. Section 4 of the Agreement is hereby amended and restated in its
entirety as follows:
"4. Purchase Price. The total purchase price ("Purchase Price") of the
Properties shall be $769,815,449.00, subject to adjustment as herein provided."
1
4. Section 13 of the Agreement is hereby amended and restated in its
entirety as follows:
"13. Expenses.
(a) At or prior to Closing, Purchaser shall pay the following closing
costs (collectively, "Purchaser's Closing Costs"), and at Closing Seller shall
reimburse Purchaser, as a credit against the Purchase Price, an amount equal to
one-half (1/2) of all such costs:
(i) Real estate brokerage commissions payable to Strategic
Alliance Realty, LLC ("Purchaser's Broker");
(ii) Phase I Environmental Study expenses for all Properties;
(iii) All transfer taxes and recording fees as required by
applicable law;
(iv) Survey expenses for all Properties;
(v) All title insurance search fees and premiums, and all escrow
and closing charges of the settlement or closing agent;
(vi) Structural and physical inspection expenses for all
Properties;
(vii) All recording fees in connection with the conveyances of
the Closing Properties;
(viii) All out-of-pocket direct expenses incurred by Purchaser,
except for expenses incurred directly with any financing obtained by Purchaser;
and
(ix) Miscellaneous expenses incurred by Purchaser and approved in
advance by Seller, including, without limitation, Seller's cost of Reimbursing
Purchaser for Purchaser's out-of-pocket expenses incurred in connection with
Purchaser's due diligence investigations of any removed Property as expressed in
Section 2(b).
Notwithstanding anything to the contrary contained in this Section 13(a), and
without inclusion in Purchaser's Closing Costs, Purchaser shall pay Purchaser's
legal fees and expenses, appraisal costs and all costs of Purchaser's financing,
if any.
(b) At or prior to Closing, Seller shall pay the following closing
costs:
(i) Real estate brokerage commissions payable to Xxxxxxxx Xxxx
Corporate Services, Inc. and Xxxxx Lang LaSalle (collectively, "Seller's
Broker");
(ii) All cost and expense of Measurement;
(iii) All fees and costs paid in connection with the Bank of
2
America Corporate Real Estate Proposed Transaction - Consulting Proposal with J
& J Family Investments, LLC;
(iv) Any recording fees for the satisfaction of any mortgages,
liens or judgments affecting any Closing Property; and
(v) Miscellaneous expenses incurred by Seller.
Notwithstanding the provisions of this Section 13(b) and without contribution
from Purchaser, Seller shall also pay (A) expenses and costs for any Phase II
and Phase III environmental studies, testing and remediation required in Section
19(b), and (B) Seller's legal fees and expenses."
5. Exhibits A, B, C, D, E, F, G, K, L, M, N, and P to the Agreement of Sale
are appended hereto and incorporated in the Agreement by this reference.
6. This Amendment shall be governed and construed in accordance with the
laws of the State of North Carolina.
7. This Amendment may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
Except as specifically modified herein, the Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed. A
facsimile copy of this Amendment and any signatures thereon shall be considered
for all purposes as originals.
IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Amended and Restated Agreement of Sale and Purchase as of the day and year first
set forth above.
BANK OF AMERICA, N.A. FIRST STATES GROUP, L.P.
By: First States Group, LLC
By By:
------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx Xx.
Title: Associate General Counsel Title: SVP & General Counsel
3
