THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
[James Center, Tacoma, Pierce County, Washington]
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Third
Amendment") is made as of the ___ day of January, 1999, by and among JS - JAMES
CENTER ASSOCIATES, L. P., a Washington limited partnership, acting herein by and
through its general partner, Johnson Capital Corp. ("Seller") and PACIFIC RETAIL
TRUST, a Maryland real estate investment trust ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser have heretofore entered into that certain
Agreement of Purchase and Sale dated October 6, 1998, as amended by that certain
First Amendment to Agreement of Purchase and Sale dated November 24, 1998 and
that certain Second Amendment to Agreement of Purchase and Sale dated December
__, 1998 (as amended, the "Agreement"), pertaining to the real property located
in Tacoma, Pierce County, Washington, such real property being more particularly
described in the Agreement;
WHEREAS, Seller and Purchaser hereby desire to amend the Agreement as
more particularly set forth below;
NOW THEREFORE, for and in consideration of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, Seller and Purchaser agree as
follows:
1. All capitalized terms used herein shall have the same meaning as
defined in the Agreement, unless otherwise defined in this Third
Amendment.
2. The Due Diligence Period is hereby extended and will expire at 6:00
p.m., Pacific Standard Time on February 8, 1999 (the "Third Extension
Period").
3. As consideration for the Third Extension Period, Purchaser and Seller hereby
agree that $12,500.00 of the Earnest Money shall be released by Escrow Agent
to Seller upon the full execution of this Third Amendment
(the "Third Extension Fee"). Notwithstanding anything to the contrary in
the Agreement, it is understood and agreed that (i) the Extension Fee for
the First Extension Period and Second Extension Period and the Third
Extension Fee (being in the aggregate amount of $37,500.00 and collectively
referred to as the "Extension Fees") shall be treated as Earnest Money and
applied to the Purchase Price in the event Purchaser elects to purchase the
Property and (ii) the Earnest Money (including, but not limited to, the
Extension Fees) shall be fully refunded to Purchaser in the event Purchaser
elects to terminate the Agreement pursuant to any of the termination rights
set forth in Paragraphs 2.3, 2.5, 2.7(c), 2.8 or 3.2 of the Agreement or in
the event that certain Assignment and
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Assumption of Lease and Second Amendment to Lease has not been fully
executed by Fred Meyer and Associated Grocers, the form and content of
which document must be acceptable to Purchaser, prior to the expiration
of the Due Diligence Period.
4. With respect to the termination rights in Paragraph 3.2 of the
Agreement, Purchaser has objected, and continues to object, to numerous
title exceptions which relate to the Real Property. In the event each
of these title exceptions is not resolved to Purchaser's satisfaction
prior to the expiration of the Due Diligence Period and Purchaser
elects to terminate the Agreement, the Earnest Money (including, but
not limited to the Extension Fees) shall be fully refunded to
Purchaser.
5. Except as amended herein, the Agreement shall remain in full force and
effect. In the event of any conflicts or inconsistencies between the
provisions of this Third Amendment and the provisions of the Agreement,
the provisions of this Third Amendment shall control.
6. This Third Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of such
counterparts shall constitute one agreement. To facilitate execution of
this Third Amendment, the parties may execute and exchange facsimile
counterparts of the signature pages, and facsimile counterparts shall
serve as originals.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of the date first above written.
JS - JAMES CENTER ASSOCIATES, L.P.,
a Washington limited partnership
By: JOHNSON CAPITAL CORP.,
its general partner
By: _________________________
Name:_________________________
Title: _______________________
"Seller"
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PACIFIC RETAIL TRUST,
a Maryland real estate investment trust
By: __________________________
Name:__________________________
Title:_________________________
"Purchaser"
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