Exhibit 10.38
AMENDMENT TO AGREEMENT OF SALE AND PURCHASE
AND JOINT ESCROW INSTRUCTIONS
This Amendment to Agreement of Sale and Purchase and Joint Escrow
Instructions ("Amendment") is made and entered into this 4th day of November,
2005 by and between Glimcher Properties Limited Partnership, a Delaware limited
partnership (the "Buyer") and Passco Colima, LLC, a Delaware limited liability
company, Passco PHM, LLC, a Delaware limited liability company, PHM-1, LLC, a
Delaware limited liability company, PHM-2, LLC, a Delaware limited liability
company, PHM-3, LLC, a Delaware limited liability company, PHM-4, LLC, a
Delaware limited liability company, PHM-5, LLC, a Delaware limited liability
company, PHM-6, LLC, a Delaware limited liability company, PHM-7, LLC, a
Delaware limited liability company, PHM-8, LLC, a Delaware limited liability
company, PHM-9, LLC, a Delaware limited liability company, PHM-10, LLC, a
Delaware limited liability company, PHM-11, LLC, a Delaware limited liability
company, PHM-12, LLC, a Delaware limited liability company, PHM-13, LLC, a
Delaware limited liability company, PHM-14, LLC, a Delaware limited liability
company, PHM-15, LLC, a Delaware limited liability company, PHM-16, LLC, a
Delaware limited liability company, PHM-17, LLC, a Delaware limited liability
company, PHM-18, LLC, a Delaware limited liability company, PHM-20, LLC, a
Delaware limited liability company, PHM-21, LLC, a Delaware limited liability
company, PHM-23, LLC, a Delaware limited liability company, PHM-24, LLC, a
Delaware limited liability company, PHM-25, LLC, a Delaware limited liability
company, PHM-26, LLC, a Delaware limited liability company, PHM-27, LLC, a
Delaware limited liability company, PHM-28, LLC, a Delaware limited liability
company and PHM-29, LLC, a Delaware limited liability company, each as tenants
in common (collectively, the "Seller").
RECITALS
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A. On or about October 5, 2005, Seller and Buyer entered into that certain
Agreement of Sale and Purchase and Joint Escrow Instructions (the "Agreement")
pursuant to which Seller agreed to sell to Buyer and Buyer agreed to purchase
from Seller an indoor mall commonly known as "Xxxxxx Hills Mall", located at
0000 Xxxxx Xxxxx Xxxxxx in the City of industry, California (the "Property").
B. Seller and Buyer have agreed to amend the Agreement as set forth in this
Amendment.
C. Capitalized terms that are used in this Amendment that are not otherwise
defined in this Amendment shall have the meanings ascribed in the Agreement.
AGREEMENTS
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For valuable consideration, the receipt and sufficiency of which are
acknowledged, Seller and Buyer agree as follows.
1. Inspection Period; Waiver of Conditions; and Initial Deposit. The
Inspection Period has expired, Buyer hereby approves all matters relating to the
Property as set forth in Article 3 of the Agreement, and the Initial Deposit is
hereby non-refundable (except in the event of Seller's default under the
Agreement).
2. Additional Deposit. Buyer shall, within one (1) business day after
mutual execution and delivery of this Amendment, deposit with Escrow Holder, by
wire transfer of immediately available federal funds, the Additional Deposit.
3. Purchase Price. As full consideration to Buyer for assuming the
obligations of Seller under Section 23.17 of Seller's existing lease dated June
1, 1998 with Linens `N Things (the "LNT Reimbursement Obligation"), the Purchase
Price is hereby reduced to One Hundred Seventy Million Eighty Thousand Dollars
($170,080,000.00). Buyer agrees that from and after the Closing, Seller shall
have no further obligation to Buyer with respect to the LNT Reimbursement
Obligation.
4. OPA. Buyer agrees that notwithstanding anything contained in Section 3.8
of the Agreement to the contrary, Seller shall have the option, exercisable at
any time prior to the Closing, to retain all obligations of Seller under the
OPA. If Seller elects to retain all obligations under the OPA, Seller agrees to
execute at Closing a mutually acceptable agreement whereby Seller agrees to
indemnify, defend and hold Buyer harmless from and against any and all
obligations under the OPA, and agrees not to amend the OPA without Buyer's prior
written consent.
5. General Provisions.
(a) Other than as expressly set forth in this Amendment, the Agreement
is not amended in any manner.
(b) From and after the date hereof, all references in the Agreement to
the term "Agreement" shall be deemed to refer to the Agreement as modified
by this Amendment.
(c) This Amendment may be executed in any number of counterparts,
whether by original, copy, or telecopy signature, and each counterpart of
this Amendment so executed shall, taken together, comprise one and the same
original document.
(d) Time is of the essence of this Amendment.
Executed as of November 4, 2005.
BUYER
GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Glimcher Properties Corporation,
Its sole general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Executive Vice President
SELLER
PASSCO COLIMA, LLC, a Delaware PASSCO PHM, LLC, a Delaware
limited liability company limited liability company
By: Passco Real Estate Enterprises, By: Passco Real Estate Enterprises,
Inc., a California corporation, Inc., a California corporation,
its _____________ its ______________
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- --------------------------
Xxxxxxx X. Xxxx, President Xxxxxxx X. Xxxx, President
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PHM-1, LLC, a Delaware limited liability company
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, married man as sole and separate
property, its Sole Member
PHM-2, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Trustee of The Xxxxxx
Family Trust dated November 21, 1989,
its sole member
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Trustee of The Xxxxxx Family Trust
dated November 21, 1989,
its sole member
PHM-3, LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, its Sole Member
PHM-4, LLC, a Delaware limited liability company
By: /s/ Emi Matsuoka
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Emi Matsuoka, Trustee of the Survivor's Trust
created under the Matsuoka Family Trust dated
February 16, 1984, its sole member
PHM-5, LLC, a Delaware limited liability company
By: /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx, a single man, its sole member
PHM-6, LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Trustee of the Xxxxxx X. Xxxxxxx
Living Trust dated January 22, 1990, its sole member
PHM-7, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as community property,
its sole member
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By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, as community property,
its sole member
PHM-8, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, a married man as his sole and
separate property, its sole member
PHM-9, LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Trustee of the Xxxx Trust
dated March 18, 1993, its sole member
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Trustee of the Xxxx Trust
Dated March 18, 1993, its sole member
PHM-10, LLC, a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, its sole member
PHM-11, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, joint tenant with
right of survivorship, its sole member
By: /s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxxxxx, joint tenant with
right of survivorship, its sole member
PHM-12, LLC, a Delaware limited liability company
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, as Husband and Wife,
its sole member
By: /s/ Xxx-Xxx Xxx
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Xxx-Xxx Xxx, as Husband and Wife,
its sole member
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PHM-13, LLC, a Delaware limited liability company
By: DCK, LLC, a Virginia limited liability company, its
sole member
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Managing Member
PHM-14, LLC, a Delaware limited liability company
By: GSR Corporation, a California corporation, its sole
member
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, President
PHM-15, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, a single man, its sole member
PHM-16, LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as community property, its sole member
By: /s/ Xxxxxxxx Xxxx
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Xxxxxxxx Xxxx, as community property its sole member
PHM-17, LLC, a Delaware limited liability company
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Trustee of the Xxxx Y.T. Xxxxx and Xxxxxx
X. Xxxxx 1987 Trust dated May 19, 1987
its sole member
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Trustee of the Xxxx Y.T. Xxxxx and
Xxxxxx X. Xxxxx 1987 Trust dated May 19, 1987, its sole
member
PHM-18, LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, as Trustee of the Xxxx Family Trust of
1996 dated June 27, 1996, its sole member
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, as Trustee of the Xxxx Family Trust of
1996 dated June 27, 1996, its sole member
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PHM-20, LLC, a Delaware limited liability company
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, as Trustee of the Survivor's Trust
Created under the Xxxx Family Trust dated January 12,
1990, its sole member
PHM-21, LLC, a Delaware limited liability company
By: Garden Lane Associates, LLC, an Arizona limited
liability company, its sole member
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Member
PHM-23, LLC, a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, its sole member
PHM-24, LLC, a Delaware limited liability company
By: Roblar, L.L.C., a Nevada limited liability company,
its sole member
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Managing Member
PHM-25, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Trustee of the Xxxx
Trust dated November 4, 1998, its sole member
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Trustee of the Xxxx
Trust dated November 4, 1998, its sole member
PHM-26, LLC, a Delaware limited liability company
By: Xxxxx Property Company, a California corporation,
its sole member
By: /s/ Xxxxx X. Xxxxx III
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Xxxxx X. Xxxxx, III, President
PHM-27, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx, Trustee of the Xxxxxxx X. Xxx
Family Living Trust Dated June 29, 1990, its sole
member
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By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, Trustee of the Xxxxxxx X. Xxx
Family Living Trust Dated June 29, 1990, its
sole member
PHM-28, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, as Trustee of
the Xxxxxxx Family 2002 Revocable Trust
dated November 8, 2002, its sole member
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, as Trustee of the Xxxxxxx
Family 2002 Revocable Trust dated November 8, 2002,
its sole member
PHM-29, LLC, a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Trustee of the 1986 JORDAN
LIVING TRUST dated June 25, 1986
By: /s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Trustee of the 1986 JORDAN
LIVING TRUST dated June 25, 1986
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