Amendment to Agreement of Sale and Purchase and Joint Escrow Instructions between Glimcher Properties Limited Partnership and Passco Colima, LLC et al.

Summary

This amendment updates the original sale and purchase agreement between Glimcher Properties Limited Partnership (Buyer) and Passco Colima, LLC and related entities (Seller) for the Puente Hills Mall property in California. The amendment confirms the expiration of the inspection period, makes the initial deposit non-refundable (except for seller default), requires an additional deposit, reduces the purchase price, and clarifies certain obligations regarding existing leases and agreements. All other terms of the original agreement remain unchanged.

EX-10.38 3 glimcher_10k-ex1038.txt AMENDMENT TO AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS Exhibit 10.38 AMENDMENT TO AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS This Amendment to Agreement of Sale and Purchase and Joint Escrow Instructions ("Amendment") is made and entered into this 4th day of November, 2005 by and between Glimcher Properties Limited Partnership, a Delaware limited partnership (the "Buyer") and Passco Colima, LLC, a Delaware limited liability company, Passco PHM, LLC, a Delaware limited liability company, PHM-1, LLC, a Delaware limited liability company, PHM-2, LLC, a Delaware limited liability company, PHM-3, LLC, a Delaware limited liability company, PHM-4, LLC, a Delaware limited liability company, PHM-5, LLC, a Delaware limited liability company, PHM-6, LLC, a Delaware limited liability company, PHM-7, LLC, a Delaware limited liability company, PHM-8, LLC, a Delaware limited liability company, PHM-9, LLC, a Delaware limited liability company, PHM-10, LLC, a Delaware limited liability company, PHM-11, LLC, a Delaware limited liability company, PHM-12, LLC, a Delaware limited liability company, PHM-13, LLC, a Delaware limited liability company, PHM-14, LLC, a Delaware limited liability company, PHM-15, LLC, a Delaware limited liability company, PHM-16, LLC, a Delaware limited liability company, PHM-17, LLC, a Delaware limited liability company, PHM-18, LLC, a Delaware limited liability company, PHM-20, LLC, a Delaware limited liability company, PHM-21, LLC, a Delaware limited liability company, PHM-23, LLC, a Delaware limited liability company, PHM-24, LLC, a Delaware limited liability company, PHM-25, LLC, a Delaware limited liability company, PHM-26, LLC, a Delaware limited liability company, PHM-27, LLC, a Delaware limited liability company, PHM-28, LLC, a Delaware limited liability company and PHM-29, LLC, a Delaware limited liability company, each as tenants in common (collectively, the "Seller"). RECITALS -------- A. On or about October 5, 2005, Seller and Buyer entered into that certain Agreement of Sale and Purchase and Joint Escrow Instructions (the "Agreement") pursuant to which Seller agreed to sell to Buyer and Buyer agreed to purchase from Seller an indoor mall commonly known as "Puente Hills Mall", located at 1600 South Azusa Avenue in the City of industry, California (the "Property"). B. Seller and Buyer have agreed to amend the Agreement as set forth in this Amendment. C. Capitalized terms that are used in this Amendment that are not otherwise defined in this Amendment shall have the meanings ascribed in the Agreement. AGREEMENTS ---------- For valuable consideration, the receipt and sufficiency of which are acknowledged, Seller and Buyer agree as follows. 1. Inspection Period; Waiver of Conditions; and Initial Deposit. The Inspection Period has expired, Buyer hereby approves all matters relating to the Property as set forth in Article 3 of the Agreement, and the Initial Deposit is hereby non-refundable (except in the event of Seller's default under the Agreement). 2. Additional Deposit. Buyer shall, within one (1) business day after mutual execution and delivery of this Amendment, deposit with Escrow Holder, by wire transfer of immediately available federal funds, the Additional Deposit. 3. Purchase Price. As full consideration to Buyer for assuming the obligations of Seller under Section 23.17 of Seller's existing lease dated June 1, 1998 with Linens `N Things (the "LNT Reimbursement Obligation"), the Purchase Price is hereby reduced to One Hundred Seventy Million Eighty Thousand Dollars ($170,080,000.00). Buyer agrees that from and after the Closing, Seller shall have no further obligation to Buyer with respect to the LNT Reimbursement Obligation. 4. OPA. Buyer agrees that notwithstanding anything contained in Section 3.8 of the Agreement to the contrary, Seller shall have the option, exercisable at any time prior to the Closing, to retain all obligations of Seller under the OPA. If Seller elects to retain all obligations under the OPA, Seller agrees to execute at Closing a mutually acceptable agreement whereby Seller agrees to indemnify, defend and hold Buyer harmless from and against any and all obligations under the OPA, and agrees not to amend the OPA without Buyer's prior written consent. 5. General Provisions. (a) Other than as expressly set forth in this Amendment, the Agreement is not amended in any manner. (b) From and after the date hereof, all references in the Agreement to the term "Agreement" shall be deemed to refer to the Agreement as modified by this Amendment. (c) This Amendment may be executed in any number of counterparts, whether by original, copy, or telecopy signature, and each counterpart of this Amendment so executed shall, taken together, comprise one and the same original document. (d) Time is of the essence of this Amendment. Executed as of November 4, 2005. BUYER GLIMCHER PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership By: Glimcher Properties Corporation, Its sole general partner By: /s/ George A. Schmidt ------------------------------------ George A. Schmidt, Executive Vice President SELLER PASSCO COLIMA, LLC, a Delaware PASSCO PHM, LLC, a Delaware limited liability company limited liability company By: Passco Real Estate Enterprises, By: Passco Real Estate Enterprises, Inc., a California corporation, Inc., a California corporation, its _____________ its ______________ By: /s/ William H. Winn By: /s/ William H. Winn --------------------------- -------------------------- William H. Winn, President William H. Winn, President 2 PHM-1, LLC, a Delaware limited liability company By: /s/ Paul Vincent ------------------------------------------------- Paul Vincent, married man as sole and separate property, its Sole Member PHM-2, LLC, a Delaware limited liability company By: /s/ Louis R. Favero ------------------------------------------------- Louis R. Favero, Trustee of The Favero Family Trust dated November 21, 1989, its sole member By: /s/ Jane R. Favero ------------------------------------------------- Jane R. Favero, Trustee of The Favero Family Trust dated November 21, 1989, its sole member PHM-3, LLC, a Delaware limited liability company By: /s/ Robert T. Mann ------------------------------------------------- Robert T. Mann, its Sole Member PHM-4, LLC, a Delaware limited liability company By: /s/ Emi Matsuoka ------------------------------------------------- Emi Matsuoka, Trustee of the Survivor's Trust created under the Matsuoka Family Trust dated February 16, 1984, its sole member PHM-5, LLC, a Delaware limited liability company By: /s/ Bradford H. Bodley ------------------------------------------------- Bradford H. Bodley, a single man, its sole member PHM-6, LLC, a Delaware limited liability company By: /s/ Lawana M. Addiego ------------------------------------------------- Lawana M. Addiego, Trustee of the Lawana M. Addiego Living Trust dated January 22, 1990, its sole member PHM-7, LLC, a Delaware limited liability company By: /s/ Richard D. Miller ------------------------------------------------- Richard D. Miller, as community property, its sole member 3 By: /s/ Jane F. Miller ------------------------------------------------- Jane F. Miller, as community property, its sole member PHM-8, LLC, a Delaware limited liability company By: /s/ James F. Watling ------------------------------------------------- James F. Watling, a married man as his sole and separate property, its sole member PHM-9, LLC, a Delaware limited liability company By: /s/ Steven M. Hunt ------------------------------------------------- Steven M. Hunt, Trustee of the Hunt Trust dated March 18, 1993, its sole member By: /s/ Marilyn B. Hunt ------------------------------------------------- Marilyn B. Hunt, Trustee of the Hunt Trust Dated March 18, 1993, its sole member PHM-10, LLC, a Delaware limited liability company By: /s/ Joral Schmalle ------------------------------------------------- Joral Schmalle, its sole member PHM-11, LLC, a Delaware limited liability company By: /s/ David G. Thompson ------------------------------------------------- David G. Thompson, joint tenant with right of survivorship, its sole member By: /s/ Katherine Thompson ------------------------------------------------- Katherine Thompson, joint tenant with right of survivorship, its sole member PHM-12, LLC, a Delaware limited liability company By: /s/ Chau Tran ------------------------------------------------- Chau Tran, as Husband and Wife, its sole member By: /s/ Anh-Dao Bui ------------------------------------------------- Anh-Dao Bui, as Husband and Wife, its sole member 4 PHM-13, LLC, a Delaware limited liability company By: DCK, LLC, a Virginia limited liability company, its sole member By: /s/ Leonard W. Kraisel ------------------------------------------------- Leonard W. Kraisel, Managing Member PHM-14, LLC, a Delaware limited liability company By: GSR Corporation, a California corporation, its sole member By: /s/ Stuart W. Ross ------------------------------------------------- Stuart W. Ross, President PHM-15, LLC, a Delaware limited liability company By: /s/ Barry L. Ross ------------------------------------------------- Barry L. Ross, a single man, its sole member PHM-16, LLC, a Delaware limited liability company By: /s/ Stuart S. Ross ------------------------------------------------- Stuart W. Ross, as community property, its sole member By: /s/ Marybeth Ross ------------------------------------------------- Marybeth Ross, as community property its sole member PHM-17, LLC, a Delaware limited liability company By: /s/ Fred Quock ------------------------------------------------- Fred Quock, Trustee of the Fred Y.T. Quock and Yvette C. Quock 1987 Trust dated May 19, 1987 its sole member By: /s/ Yvette C. Quock ------------------------------------------------- Yvette C. Quock, Trustee of the Fred Y.T. Quock and Yvette C. Quock 1987 Trust dated May 19, 1987, its sole member PHM-18, LLC, a Delaware limited liability company By: /s/ Horace E. Fite ------------------------------------------------- Horace E. Fite, as Trustee of the Fite Family Trust of 1996 dated June 27, 1996, its sole member By: /s/ Helen P. Fite ------------------------------------------------- Helen P. Fite, as Trustee of the Fite Family Trust of 1996 dated June 27, 1996, its sole member 5 PHM-20, LLC, a Delaware limited liability company By: /s/ Jean D. Howe ------------------------------------------------- Jean D. Howe, as Trustee of the Survivor's Trust Created under the Howe Family Trust dated January 12, 1990, its sole member PHM-21, LLC, a Delaware limited liability company By: Garden Lane Associates, LLC, an Arizona limited liability company, its sole member By: /s/ William G. Rogers ------------------------------------------------- William G. Rogers, Member PHM-23, LLC, a Delaware limited liability company By: /s/ Marla Schmalle ------------------------------------------------- Marla Schmalle, its sole member PHM-24, LLC, a Delaware limited liability company By: Roblar, L.L.C., a Nevada limited liability company, its sole member By: /s/ Larry Hass ------------------------------------------------- Larry Haas, Managing Member PHM-25, LLC, a Delaware limited liability company By: /s/ Tyler R. Hunt ------------------------------------------------- Tyler R. Hunt, Trustee of the Hunt Trust dated November 4, 1998, its sole member By: /s/ Patsy O. Hunt ------------------------------------------------- Patsy O. Hunt, Trustee of the Hunt Trust dated November 4, 1998, its sole member PHM-26, LLC, a Delaware limited liability company By: Crist Property Company, a California corporation, its sole member By: /s/ Frank L. Crist III ------------------------------------------------- Frank L. Crist, III, President PHM-27, LLC, a Delaware limited liability company By: /s/ Clayton K. Lee ------------------------------------------------- Clayton K. Lee, Trustee of the Clayton K. Lee Family Living Trust Dated June 29, 1990, its sole member 6 By: /s/ Lorrie Lee ------------------------------------------------- Lorrie Lee, Trustee of the Clayton K. Lee Family Living Trust Dated June 29, 1990, its sole member PHM-28, LLC, a Delaware limited liability company By: /s/ Michael E. Horejsi ------------------------------------------------- Michael E. Horejsi, as Trustee of the Horejsi Family 2002 Revocable Trust dated November 8, 2002, its sole member By: /s/ Patricia H. Horejsi ------------------------------------------------- Patricia H. Horejsi, as Trustee of the Horejsi Family 2002 Revocable Trust dated November 8, 2002, its sole member PHM-29, LLC, a Delaware limited liability company By: /s/ Jerry W. Jordan ------------------------------------------------- Jerry W. Jordan, Trustee of the 1986 JORDAN LIVING TRUST dated June 25, 1986 By: /s/Joan M. Jordan ------------------------------------------------- Joan M. Jordan, Trustee of the 1986 JORDAN LIVING TRUST dated June 25, 1986 7