FOURTH AMENDMENT TO CONTRACT OF SALE
This Fourth Amendment to Contract of Sale is entered into effective as of
November , 1996 (this "Amendment"), by and between Serramonte Plaza, a
California Limited partnership ("Seller"), and Xxxx City Partner, LLC, a
California limited liability company ("Purchaser").
WHEREAS, Seller and Purchase entered into that certain Contract of Sale
dated effective as of August 29, 1996, pursuant to which Seller has agreed to
sell, and Purchaser has agreed to purchase from Seller, Seller's rights, titles
and interests in and to the Property more particularly described in the
Contract, which Contract of Sale was amended by that certain First Amendment to
Contract of Sale dated effective as of September 27, 1996, that certain Second
Amendment to Contract of Sale dated effective as of October 7, 1996, and that
certain Third Amendment to Contract of Sale dated effective as of October 14,
1996 (as so amended, the "Contract"); and
WHEREAS, Seller and Purchaser desire to modify the Contract to extend
certain dates and time periods and make certain other modifications, pursuant to
the terms and provisions of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this Amendment or the context otherwise
requires, each term used in this Amendment with its initial letter capitalized
which has been defined in the Contract shall have the same meaning herein as
given to such term in the Contract.
2. Section 2.4 of the Contract is hereby amended to read in its
entirety as follows:
2.4 Asbestos Remediation. Purchaser shall within the Inspection Period,
at the sole cost and expense of the Seller, obtain an asbestos survey of
the Land and the Improvements in form and substance reasonably acceptable
to Purchaser and Seller sufficient to enable the parties to determine the
asbestos remediation required or appropriate (the "Asbestos Survey").
Seller agrees that the costs of such remediation shall include (i) the
costs of obtaining the Asbestos Survey (for which Seller shall reimburse
Purchaser), (ii) the cost of the Theater Remediation (as defined below),
and (iii) the amount of the cost estimate for remediating the asbestos and
the asbestos containing materials in the Xxxxx XxXxxxxx building located on
Parcel 3 (items (i), (ii) and (iii) being referred to collectively as the
"Remediation Items"), Seller and Purchaser have agreed that bids from AFM
Environmental, Inc. dated June 24, 1996 and ATC Environmental, Inc. dated
October 14, 1996 are reasonably acceptable to Seller and Purchaser for the
completion of the Remediation Items (the "Remedition Estimate"). To the
extent that the accepted Remediation Estimate exceeds $150,000 (the
"Asbestos Cap"), Purchaser and Seller agree to pay equally any such excess
amount over the Asbestos Cap. If this Contract remains in effect during
the period prior to the Closing Date (the "Remediation Period") Seller
shall remediate, to levels established in the Remediation Estimate and
reasonably acceptable to Purchaser, the asbestos and the asbestos
containing materials only on the land and in the improvements that comprise
the theater complex located on Parcel 2 (the "Theater Remediation").
During the Remediation Period, Seller shall be entitled to utilize the
Xxxxxxx Money Deposit (as defined in Section 3.1 hereof) for the Theater
Remediation. Purchaser shall be under no obligation to replenish the
Xxxxxxx Money Deposit for any amounts actually use by Seller for the
Theater Remediation. Seller shall use its best efforts to minimize the
costs of the Theater Remediation and shall do so, in part, by completing
partial interior demolition of the theater complex in connection with the
Theater Remediation. If Seller's costs actually incurred in performing the
Theater Remediation are less than the Asbestos Cap, an amount equal to the
unspent portion of the Asbestos Cap shall be paid to Purchaser at Closing
to reimburse Purchaser for expenses incurred or to be incurred in
performing asbestos remediation work on the Xxxxx XxXxxxxx and Bank of the
West buildings.
3. Section 3.1 of the Contract is hereby amended to delete the third
sentence thereof.
4. Section 5.1 of the Contract is hereby amended to delete the first
full sentence thereof commencing with he words "Purchaser shall have...";
and ending with the words "...its sole discretion.", and the following is
inserted in lieu thereof:
5.1 Inspection Period. Purchaser shall have a period of time commencing
on the Effective date and expiring at 5:00 PM, Daly City, California time
on January 31, 1997 (the "Inspection Period") within which to examine the
Property and to conduct its feasibility study thereof.
5. Seller acknowledges that it has received the approvals described in
Section 7.2 (e) of the Contract, subject to satisfaction by Purchaser of
its obligations under the Contract.
6. Section 8.1 of the Contract is amended to read in its entirety as
follows:
8.1 Time and Place. The consummation of the purchase and sale of the
property (the "Closing") shall take place at the office of the Title
Company on or before March 18, 1997 (the "Closing Date"); provided, however
that in no event shall Purchaser or Seller be obligated to proceed with the
Closing unless all conditions precedent thereto in favor of the respective
party have been satisfied or waived by such party.
7. Except as expressly amended by this Amendment, no term or provision
of the Contract is or shall be amended, modified or supplemented.
8. This Amendment may be executed in any number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes, and all such counterparts shall, collectively,
constitute one agreement, but in making proof of this Amendment, it shall
not be necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date first set forth above.
SELLER: SERRAMONTE PLAZA,
a California limited partnership
By:Investors First-Staged Equity,
L.P., a Delaware limited partnership,
its general partner
By: VMS Realty Investment II,
an Illinois general
partnership,
its general partner
By:/s/ Xxxxxxx X Xxxxxx
Its:Authorized Signatory
Date:November 22, 1996
PURCHASER: XXXX CITY PARTNERS, LLC,
a California limited liability company
By:____________________________
Xxxxxx X. Xxxx
Its: Manager
Dated: _______________, 1996
