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EXHIBIT 10.22(a)
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
WITH ESCROW INSTRUCTIONS
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT WITH ESCROW
INSTRUCTIONS (the "Amendment") is dated as of November 29, 2000, by and between
PACIFICA CALIFORNIA/APOLLO, LLC, a California limited liability company
("Seller"), and SKECHERS USA, INC., a Delaware corporation ("Buyer"), with
reference to the following facts:
RECITALS
A. Buyer and Seller entered into that certain Purchase and Sale
Agreement with Escrow Instructions dated November 13, 2000 (the "Agreement").
B. Buyer and Seller hereby desire to modify the Agreement in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows:
1. INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify,
defend and hold harmless Buyer from and against any and all damages, losses and
expenses incurred by Buyer as a direct result of (i) the improper collection by
Seller of operating expense payments from any tenants of the Property at any
time prior to the Close of Escrow (but only to the extent (A) of operating
expense overcharges by Seller to tenants during the calendar year 2000, or (B)
no operating expense payments whatsoever were actually due and owing by such
tenants under their respective leases to Seller for such period); and (ii)
without limiting Buyer's obligations under Paragraph 11.6(f) of the Agreement,
Seller's failure to pay any brokerage commissions relating to leases entered
into prior to November 1, 2000 which remain due and owing and unpaid as of the
Closing. The indemnifications set forth in this paragraph 1 shall survive the
recordation of the Deed and the Closing for a period of twelve (12) months.
2. COMMISSIONS. Notwithstanding the terms of Paragraph 11.6(f) of the
Agreement to the contrary, Buyer shall have no obligation to pay a brokerage
commission to Xxxxxxx & Xxxxx as representatives of the landlord in connection
with any future expansions lease renewals or rent increases which occur after
the Closing, provided that (i) Buyer shall remain obligated to pay such
commissions to Xxxxxxx & Xxxxx in connection with the lease of Suite 290 [to
Multaler] and Suite 240 [to Buyer], and (ii) Xxxxxxx & Xxxxx shall be entitled
to any such commissions in connection with its representation of any tenant(s)
at the Property.
3. SERVICE CONTRACTS. Paragraph 7.1 of the Agreement is hereby
modified by the addition of the following paragraph:
"7.1.16 Service Contracts. To Seller's knowledge, other than the
service contracts provided to Buyer as part of the Due Diligence
Materials or otherwise
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delivered to Buyer on or before November 29, 2000, there are no
service contracts relating to the Property which are not terminable on
30 days (or less notice."
4. TERMINATION OF CONTRACTS. Seller agrees to cause any brokerage
listing agreement with Xxxxxxx & Xxxxx and any management agreement relating to
the Property to be terminated effected as of the Close of Escrow.
5. SELLER'S DEPOSITS. Without limiting the terms of Paragraph 11.3(g)
of the Agreement, Seller agrees to deposit into Escrow or otherwise deliver to
Buyer as of the Closing originals of all files in Seller's possession which
relate to the Property (excepting therefrom tax returns, appraisals, analysis,
reports or other records which are of a confidential or proprietary nature).
6. BUYER'S CONTINGENCIES. Buyer acknowledges that the Due Diligence
Period has expired and that Buyer has not elected to terminate the Agreement in
accordance with Paragraphs 5.1, 5.2 or 9.1, except that Buyer shall continue to
have the rights set forth in Section 5.2 with respect to any additional title
exceptions set forth in any supplemental title reports.
7. DEFINED TERMS. Except as expressly defined herein, all capitalized
terms used in this Amendment shall have the meanings given to them in the
Agreement.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and same instrument.
9. NO FURTHER MODIFICATION. Except as expressly amended hereby, the
Agreement shall remain unchanged and continue in full force and effect.
10. FACSIMILE. Each party hereto, and their respective successors and
assigns shall be authorized to rely upon the signatures of all of the parties
hereto on this Amendment which are delivered by facsimile as constituting a duly
authorized, irrevocable, actual current delivery of this Amendment with original
ink signatures of each person and entity; provided, however, that each party
hereto that delivers such facsimile signatures to another party hereto,
covenants and agrees that it shall deliver an executed original of the same to
the party(ies) so receiving the previous facsimile signatures within ten (10)
days after the delivery of such facsimile signatures.
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IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as
of the date first set forth above.
SELLER: BUYER:
PACIFICA CALIFORNIA/APOLLO, SKECHERS USA, INC., a Delaware
LLC, a California limited liability corporation
company
By: /s/ ILLEGIBLE By: /s/ XXXXXX XXXXXXXX
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Name: 11/30/00 Name: Xxxxxx Xxxxxxxx
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Its: Member/Mgr Its: General Counsel
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By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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Its: CFO
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