THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
Exhibit 10.4
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this “Amendment”) is made as of this 8th day of April, 2015, by and among the seller entities party hereto (each, individually a “Seller” and collectively the “Sellers”), and FOUNTAINS PORTFOLIO OWNER, LLC, a Delaware limited liability company, as purchaser (“Buyer”).
R E C I T A L S:
A. Seller and Buyer have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of February 18, 2015, as amended by an Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as of March 25, 2015, and a Second Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated as of April 1, 2015 (together, the “Existing Agreement” and, together with this Amendment, the “Agreement”), pursuant to which Seller agreed to sell the Properties (as defined in the Agreement), pursuant to and in accordance with the terms of the Agreement.
B. Buyer and Seller are continuing to discuss certain matters related to Buyer’s diligence and proposed amendments to the Agreement in response to Buyer’s review of the Due Diligence Materials. In connection with such discussions, Buyer and Seller have agreed to extend the Due Diligence Period as provided in this Amendment.
C. Seller and Buyer have agreed to modify the Existing Agreement in certain respects, all as more particularly set forth in this Amendment.
NOW THEREFORE, for and in consideration of the recitals set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the parties do hereby agree as follows:
1.Recitals. The foregoing recitals are true and correct and are incorporated herein in their entirety.
2.Construction; Effect of Amendment. This Amendment shall be deemed a part of, but shall take precedence over and supersede any provisions to the contrary contained in the Agreement. Except as specifically modified hereby, all of the provisions of the Agreement which are not in conflict with the terms of this Amendment shall remain in full force and effect.
3.Defined Terms. All initially capitalized terms used in this Amendment shall have the same meaning as set forth in the Agreement unless otherwise provided.
4.Due Diligence Period. The Due Diligence Period is hereby extended to 11:59 pm (EST) on April 9, 2015, and all references to the term “Due Diligence Period” in the Agreement shall mean and refer to the Due Diligence Period as extended by this Amendment.
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5.Execution and Counterparts. This Amendment may be executed in counterpart originals, each of which when taken together shall be deemed an original and shall constitute one and the same instrument. Signatures of the parties hereto on copies of this Amendment transmitted by facsimile machine or electronic mail shall be deemed originals for all purposes hereunder, and shall be binding upon the parties hereto.
[SIGNATURES BEGIN ON THE FOLLOWING PAGES]
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NOW THEREFORE, this Amendment has been executed as of the date and year first above written.
BUYER:
FOUNTAINS PORTFOLIO OWNER, LLC, a Delaware limited liability company
By: | /s/ Xxxxx X. Xxxxxx |
Name: | Xxxxx X. Xxxxxx |
Title: | Associate General Counsel and Assistant Secretary |
[SELLER SIGNATURES CONTINUED ON THE FOLLOWING PAGES]
SELLER:
FOUNTAINS ALBEMARLE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS BOCA CIEGA SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS XXXXXXX PLACE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS XXXXXXXXXX XX, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS CARLOTTA SL, L.P.
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS CRYSTAL LAKE AP, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS XXXXXXXX XX, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS GREENBRIAR SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS LA CHOLLA SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS LAKE XXXXX POINTE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS MILLBROOK SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS MILLBROOK AP, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS RIVERVUE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS SEA BLUFFS SL, LP
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS WASHINGTON HOUSE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS BELLEVUE SL, LLC
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
FOUNTAINS LA JOLLA SL, LP
By: | /s/ Xxxxxxx X. Xxxxx |
Name: | Xxxxxxx X. Xxxxx |
Title: | Vice President |
