EXHIBIT 10.4
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(Carlyle-XV)
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amendment")
made as of the 2nd day of November, 1999, by and between Progress Partners,
a New York general partnership ("Seller") and Paramount Group, Inc., a
Delaware corporation ("Paramount") and 000 Xxxxx Xxxxxx, L.P., a New York
limited partnership ("Assignee").
Reference is made to that certain Agreement of Purchase and Sale made
as of the 27th day of July, 1999, by and between Seller, as seller, and
Paramount, as buyer, as amended by Seller and Paramount pursuant to (i)
that certain Amendment to Agreement of Purchase and Sale made as of the
17th day of September, 1999, (ii) the letter agreement dated September 13,
1999, (iii) that certain Second Amendment of Purchase and Sale made as of
the 20th day of October, 1999 by Seller, Paramount and Assignee and (iv)
the letter agreement dated October 26, 1999 (collectively, as so amended,
the "Agreement"). Paramount and Assignee have entered into that certain
Assignment and Assumption of Purchase and Sale Agreement dated as of
October 15, 1999 ("Assignment"), pursuant to which Paramount has assigned
and Assignee has assumed the rights and obligations of Paramount in
accordance with the terms of said instrument. All capitalized terms used
herein and not otherwise defined shall have the respective meanings
ascribed to such terms in the Agreement.
For Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which is hereby mutually acknowledged, the
parties hereby agree to amend the Agreement as follows:
1. The Purchase Price shall be $163,246,668.89, subject to
prorations and adjustments as provided in the Agreement.
2. The Post-Closing Deposit shall be $2,000,000.00. The Maximum
Amount shall be $2,000,000.00.
3. Paramount and Assignee (i) acknowledge that the reduction in
Purchase Price reflected in this Amendment is allocable (a) to the extent
of $1,553,331.11, to the reduction of the Purchase Price in complete
satisfaction of Seller's obligations pursuant to Section 5.3 (a) of the
Agreement in respect of tenant allowances or uncompleted tenant improvement
work (but not leasing commissions), as listed on Schedule 1 hereto and (b)
to the extent of $1,000,000.00, to Assignee's claims regarding Xxxxxxx Xxxx
& Xxxxx, LLP ("SRZ") including without limitation claims based on any
holdover by SRZ upon expiration of its lease, and (ii) hereby waive any
claims, whenever arising, now or hereafter, known or unknown, from or
relating to any of Seller's representations, warranties, indemnifications,
covenants, obligations, undertakings or other agreements relating to SRZ,
including without limitation a waiver of any claims relating to a holdover
by SRZ, but excluding from such waiver any claims, if any, to the extent
recoverable under Section 30 or 32 of the Agreement relating to overcharges
of rent escalations or other lease charges under the SRZ lease during the
period of Seller's ownership of the Project.
4. Paramount and Assignee hereby acknowledge and agree that the
estoppel certificates in the form and number delivered by Seller prior
hereto shall be deemed to satisfy the requirements of Section 1.9 and
Section 4.2 (1) of the Agreement.
5. If the closing occurs after 12:00 P.M. on November 2, 1999 the
Buyer will pay the Seller an additional adjustment of $22,543.15 and if it
occurs after 2:30 P.M. on November 2, 1999 such amount will increase to
$35,000. The prorations of the income and expense shall remain as of
October 31, 1999 at 12:59 P.M.
Nothing herein contained shall be deemed an admission or
acknowledgment by Seller of the existence or validity of any claim.
Neither SRZ nor any other person or entity not party hereto may relay upon
or shall be deemed a third-party beneficiary of this Amendment.
Except as expressly modified hereby, the Agreement remains in full
force and effect. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which,
taken together, shall constitute a single instrument. Transmission of an
executed copy of this Agreement by facsimile machine shall have the same
legal effect as delivery of the executed original copy.
Nothing herein shall be construed as an admission by Seller that the
Assignment is permitted by the Agreement or a waiver of any rights or
remedies if it is not.
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IN WITNESS WHEREOF, Seller and Buyer have duly executed this
Amendment as of the day and year first above written.
SELLER: ASSIGNEE:
PROGRESS PARTNERS, a New York 000 XXXXX XXXXXX, L.P., a
general partnership New York limited
partnership
By: 000 0XX XXXXXX ASSOCIATES, By: 900 Third GP, LLC,
a General Partner general partner
By:___________________
Name:_________________
By: Carlyle Real Estate Limited Title: President
Partnership - XIV,
a General Partner
By: JMB Realty Corporation,
the Corporate General
Partner
By: /s/ Xxxxxx Xxxxx Xxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxx
Title: Senior Vice President
By: Carlyle Real Estate Limited
Partnership - XV, a General
Partner
By: JMB Realty Corporation
the Corporate General
Partner
By: /s/ Xxxxxx Xxxxx Xxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxx
Title: Senior Vice President
BUYER:
PARAMOUNT GROUP, INC.
a Delaware Corporation
By: ___________________________
Name: _____________________
Title: President
