SECOND AMENDMENT TO REAL ESTATE SALE AGREEMENT
THIS SECOND AMENDMENT TO REAL ESTASTE SALE AGREEMENT ("Agreement") is made
and entered into as of the 5th day of April, 2002 by and between Shasta Outlet
Center Limited Partnership, a Delware limited partnership doing business in the
State of California as Anderson Outlet Center Limited Partnership (the "Xxxxxxxx
Seller"), The Prime Outlets at Xxxxxxx Limited Partnership, a Delaware limited
partnership, (the "Xxxxxxx Seller"), Carolina Factory Shops Limited Partnership,
a Delaware limited partnership (the "Xxxxxxx Seller"), Xxxxxx Factory Stores
Limited Partnership, a Delaware limited partnership (the "Xxxxxx Seller"), The
Prime Outlets at Xxx Limited Partnership, and Prime Xxx Development Limited
Partnershikp, both Delaware limited partnerships, (together, the "Xxx Seller")
and Buckeye Factory Shops Limited Partgnership, a Delaware limited partnership,
("Lodi Seller") (the Xxxxxxxx Seller, the Xxxxxxx Seller, the Xxxxxxx Seller,
the Xxxxxx Seller, the Xxx Seller and the Lodi Seller are collectively referred
to herein as "Seller") and PWG Capital, LLC. a Delaware limited liability
company the ("Purchaser").
RECITALS:
A. The Seller and the Purchaser entered into a Real Estate Sale
Agreemnt date the 9th day of January, 2002, as amended by a First Amendment to
Real Estate Sale Agreement dated the 27th day of March 2002 (the Agreement, as
amended, is hereinafter referred to as the "Agreement").
B. The Seller and the Purchaser now desire to further amend the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties set forth in this Agreement, and for the other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. All terms capitalized herein shall have the same meaning as
provided in the Agreement.
2. The Purchase Price set forth in Section 2(A) of the Agreement is
hereby reduced from $120,250,000 to $118,650,000.
3. The date "April 5, 2002" contained in Section 3(A) of the
Agreement shall be deemed deleted, and the date "April 26, 2002" shall be
substituted therefor.
4. Section 4(B) shall be deleted in its entirety, and the following
shall be substituted therefor: "The Closing shall take place on a date mutually
agreed upon by the parties, which date shall be no later than May 6, 2002."
5. $100,000 of the Xxxxxxx Money shall be released to the Xxxxxx by
the Escrow Holder immediately following the full execution and delivery of this
Amendment. Said $100,000 will be non-refundable to the Purchaser unless Seller
fails to close title in accordance with the Agreement.
6. An additional $100,000 of the Xxxxxxx Money shall be released to
the Seller by the Escrow Holder on April 22, 2002 unless Purchaser terminates
the Agreement on or before April 19, 2002. Said additional $100,000 will be
non-refundable to the Purchaser unless Seller fails to close title in accordance
with the Agreement.
7. Within three (3) business days of the full execution and
delivery hereof, Purchaser shall deposit an additional $500,000 with the Escrow
Holder so that the Xxxxxxx Money shall then total $1,500,000. Said additional
$500,000 (like the original $1,000,000 but for the $100,000 now being released)
shall also be refundable to Purchaser if Purchaser does not elect to proceed
with the transaction at the end of the Feasibility Period.
8. Exhibit T to the Agreement (Form of Management Agreement) shall
be modified by adding a provision stating that, if the overall occupancy of the
portfolio of Properties falls below 75% of the gross leasable square footage of
the portfolio of Properties for a period of six (6) consecutive months, the
Owner may thereafter terminate the Management Agreement on ten (10) days' prior
written notice to Agent, at anytime before the occupancy shall once again exceed
75% of the gross leasable square footage, said termination being without the
payment of any premium or penalty.
9. Exhibit T to the Agreement (Form of Management Agreement) shall
be further modified as follows: In Article VI; Early Termination in Section 6.1
(b) the sentence "Owner sells all, or substantially all, of the Project." shall
be deleted and the sentence "Owner elects in its sole discretion to terminate
this Agreement on 10 days' prior written notice." shall be substituted therefor.
10. The following sentence shall be added to Section 39" "The
affiliate of Seller that shall act as property manager of each Property shall
enter into an Assignment of Management Agreement and Subordination of Management
Fees Agreement with Purchaser's lender, in form and substance reasonably
acceptable to Seller."
11. The parties furthermore agree to enter into a mutually
acceptable escrow agreement at Closing, the terms and conditions of which shall
be agreed upon by Seller and Purchaser on or before the conclusion of the
Feasibility Period, which shall generally provide for the creation of an escrow
account at Closing, to be funded by the Seller, into which account will be
deposited the sum of $650,000 and which will be held by Purchaser's counsel
Xxxxxxx, Xxxxxxxxx LLP. Such escrow shall be for the purpose of implementing
the Optimization Plan agreed upon by Seller and Purchaser and related to "most
favored nation" clauses contained in various
tenant leases.
12. Except as modified hereby all of the terms, covenants and
conditions set forth in the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
ANDERSON SELLER:
SHASTA OUTLET CENTER LIMITED PARTNERSHIP, a Delaware
limited partnership (doing business in California as
Anderson Outlet Center Limited Partnership)
By: Prime Retail, L.P., a Delaware limited partnership.
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
XXXXXXX SELLER:
THE PRIME OUTLETS AT XXXXXXX LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
XXXXXXX SELLER:
CAROLINA FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
XXXXXX SELLER:
XXXXXX FACTORY STORES LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
XXX XXXXXXX:
THE PRIME OUTLETS AT XXX LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
PRIME XXX DEVELOPEMENT LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
LODI SELLER:
BUCKEYE FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: Prime Retail, Inc., a Maryland corporation,
its general partner
By: \s\ Xxxxxx X. Xxxxxxx (SEAL)
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Date: 4/5/02
PURCHASER:
PWG CAPITAL, LLC,
a Delaware limited liability company
By: Prime Retail, L.P., a Delaware limited partnership,
its general partner
By: \s\ Xxxxx X. Xxxxxxx (SEAL)
Name: XXXXX X. XXXXXXX
Title: AUTHORIZED SIGNATORY
Date: 4-5-02
CAROLINA FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
XXXXXX FACTORY STORES LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
BUCKEYE FACTORY SHOPS LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
THE PRIME OUTLETS AT XXXXXXX LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
PRIME RETAIL, L.P., a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
THE PRIME OUTLETS AT XXX LIMITED PARTNERSHIP, a Delaware limited partnership
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer
SHASTA OUTLET CENTER LIMITED PARTNERSHIP, a Delaware limited partnership
(doing business in California as Anderson Outlet Center Limited Partnership)
By: Prime Retail, L.P., a Delaware limited partnership, its general partner
By: Prime Retail, Inc., a Maryland corporation, its general partner
By: \s\ Xxxxx X. Xxxxxxx
Name: XXXXX X. XXXXXXX
Title: President and Chief Executive Officer