FOURTH AMENDMENT
TO
AGREEMENT FOR PURCHASE AND SALE
This Fourth Amendment to Agreement for Purchase and Sale ("FOURTH
AMENDMENT") is entered into effective as of December 13, 2001 by and between
XXXXXXX PACIFIC PROPERTIES, INC., a Maryland corporation ("SELLER"), and POB
APOLLO PACIFIC RETAIL, L.P., formerly known as PACIFIC RETAIL, L.P., a Delaware
limited partnership ("BUYER").
WHEREAS, Seller and Buyer entered into that certain Agreement for
Purchase and Sale dated as of August 29, 2001 (the "INITIAL AGREEMENT"), as
amended by that certain letter agreement dated September 17, 2001 (the "FIRST
AMENDMENT"), that certain Second Amendment to Agreement for Purchase and Sale
dated as of October 2, 2001 (the "SECOND AMENDMENT") and that certain Third
Amendment to Agreement for Purchase and Sale dated as of November 15, 2001 (the
"THIRD AMENDMENT") (the Initial Agreement as amended by the First Amendment, the
Second Amendment and the Third Amendment shall be collectively referred to as
the "AGREEMENT")
WHEREAS, Seller and Buyer desire to further amend the Agreement as
provided herein.
NOW, THEREFORE, for good and valuable consideration, the adequacy and
receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. DEFINED TERMS. Capitalized terms which are not otherwise
defined in this Third Amendment shall have the same meaning ascribed thereto in
the Agreement. An individual Property may be referenced in this Third Amendment
by its common name and such reference shall be deemed to be to that Property
referenced by the same common name listed on Exhibit A of the Agreement and that
is legally described in corresponding Schedule A of the preliminary title report
listed on Exhibit J of the Agreement and the Real Property, Personal Property
and Intangible Property related or appurtenant thereto.
2. CLOSING DATE. Seller and Buyer have agreed to close the
following Properties: Cruces Norte, Farmington Village, Fremont Hub, Greentree
Plaza, Mission Plaza, Park Manor, Plaza de Monterey and Silver Plaza. As to the
balance of the Properties, the Closing Date for such Properties shall be as
provided in this Fourth Amendment and, if not expressly addressed in this Fourth
Amendment, as otherwise provided in the Agreement.
3. PURCHASE PRICE. The definition of "PURCHASE PRICE" set forth
in Article 1 of the Agreement is hereby reduced to One Hundred Forty Nine
Million Four Hundred Seventy Seven Thousand Five Hundred Fifty and 00/100
Dollars ($149,477,550.00). Exhibit Q of the Agreement is hereby amended to
reduce the total Purchase Price to One Hundred Forty Nine Million Four Hundred
Seventy Seven Thousand Five Hundred Fifty and 00/100 Dollars ($149,477,550.00)
and to reduce the Purchase Price allocated to Silver Plaza to Five Hundred Forty
Thousand Five Hundred Fifty and 00/100 Dollars ($540,550.00).
4. XXXX GARDENS MARKETPLACE. Pursuant to Paragraph 8.1 of the
Third Amendment, Buyer (but not Seller) hereby elects to extend the date by
which the lender's requirements may be satisfied
or the amendment to the Ground Lease may be completed for Xxxx Gardens
Marketplace . Notwithstanding anything in the Agreement to the contrary, if
Buyer subsequently elects to terminate the Agreement on or before January 8,
2002 as to Xxxx Gardens Marketplace because Buyer has not satisfied the
requirements of its lender or completed the amendment to the Ground Lease, that
portion of the Option Payment in column A of Exhibit R allocated to Xxxx Gardens
Marketplace shall be deemed released to Seller and that portion of the
Additional Deposit in column B of Exhibit R allocated to Xxxx Gardens
Marketplace shall be returned to Buyer.
4. FAIRWOOD SQUARE AND VILLAGE EAST SHOPPING CENTER. Pursuant to
Section 3.2(c) of the Agreement, Seller and Buyer hereby elect to delay the
Closing to January 8, 2002 to provide Seller and Buyer additional time to obtain
the Lender's Consents. Neither Seller nor Buyer waives its right under Section
3.2(c) of the Agreement, including without limitation, to further delay Closing
for an additional period or periods to obtain the Lender's Consents.
5. XXXXXXXXX XXXXX XXX XXXXX XXXXXXX XXXXX. Pursuant to Paragraph
8.4 of the Third Amendment, Seller hereby exercises its right to extend the date
by which the Ground Lessor's Consents for Brickyard and Xxxxx Village must be
obtained to January 8, 2002. The parties acknowledge that Seller shall have the
right to further extend the date by which the Ground Lessor's Consents must be
obtained as provided in the Agreement.
6 ONTARIO VILLAGE. Pursuant to Section 2.7(a) of the Agreement,
Seller hereby exercises its right to extend the Closing Date for Ontario Village
to January 8, 2002. The parties acknowledge that Seller shall have the right to
further extend the Closing Date for Ontario Village as provided in the
Agreement.
7. CLOSING CREDIT. Buyer shall obtain a credit against the
Purchase Price in the amount of Forty Thousand Five Hundred Fifty and 00/100
Dollars ($40,550.00). Buyer shall be entitled to the credit in connection with
the Closing of Properties occurring concurrently on the date hereof provided
that Buyer consummates the acquisition of Silver Plaza.
8. REAFFIRMATION. The terms of this Fourth Amendment shall govern
and control over any conflicting provisions in the Agreement. Except in the case
of such conflicts and as expressly amended by the Fourth Amendment, the terms
and provisions of the Agreement shall remain unchanged and in full force and
effect.
9. COUNTERPARTS. This Fourth Amendment may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart. Execution and transmission by telecopier is permitted and will
create an effective Fourth Amendment.
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IN WITNESS WHEREOF, the parties execute this Fourth Amendment effective
as of the date first written above.
SELLER:
XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Its: President and CEO
BUYER:
POB APOLLO PACIFIC RETAIL, L.P.,
a Delaware limited partnership
By: POB Pacific Capital L.P.
a Texas limited partnership
Its: General Partner
By: POB Pacific Operating, L.P.,
a Texas limited partnership
Its: General Partner
By: POB Pacific Retail Partner, Inc.
a Delaware corporation
a General Partner
By:
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Name:
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Title:
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By: AP-GP POB IV LLC,
a Delaware limited liability company
a General Partner
By: Kronus Property IV, Inc.,
a Delaware corporation
By:
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Name:
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Title:
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