REINSTATEMENT AGREEMENT AND
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
REINSTATEMENT AGREEMENT AND FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT (this "First
Amendment"), dated as of the 22nd day of December,
2000, by and between Deptford Crossing Associates,
L.P., a Delaware limited partnership, having an
office c/o Xxxx Xxxxxx Realty Inc., Two World Trade
Center, 64th Floor, New York, New York 10048, (the
"Seller"), and The Hutensky Group, LLC, a
Connecticut limited liability company, having an
office at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000-0000 (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller and the Purchaser entered
into that certain Purchase and Sale Agreement, dated
as of October 4, 2000 (the "Purchase Agreement")
pursuant to which the Seller agreed to sell and the
Purchaser agreed to purchase the property known as
Deptford Crossing in Deptford Township, New
Jersey (the "Property");
WHEREAS, the Purchase Agreement was terminated
pursuant to the Purchaser's Termination Notice
dated November 15, 2000 and the Escrow Agent
subsequently returned the Letter of Credit to the
Purchaser;
WHEREAS, capitalized terms used herein and
not otherwise defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement;
and
WHEREAS, the parties desire to reinstate,
ratify and amend the Purchase Agreement in the
manner hereinafter set forth.
NOW, THEREFORE, in consideration of the
foregoing recitals and other good and valuable
consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as
follows:
1. The Purchaser hereby withdraws and
rescinds the Purchaser's Termination Notice dated
November 15, 2000 (the "Purchaser's Termination
Notice") attached hereto as Exhibit 1 and such
termination notice shall be of no force and effect
and void ab initio. The Seller and the Purchaser
covenant and agree that the Purchase Agreement shall
be and hereby is reinstated and ratified as though
the Purchaser's Termination Notice was not
delivered and shall be deemed to be in full force and
effect from the original date of execution, as
amended hereby.
2. The Purchaser hereby acknowledges
that the Due
Diligence Period has expired and that it has
irrevocably waived its right to terminate the
Purchase Agreement pursuant to Section 4.2 thereof.
3. The Purchaser hereby acknowledges that all
Unacceptable Encumbrances previously objected to by
the Purchaser have either
been eliminated or waived.
4. To the Seller's Knowledge, nothing has
occurred since
the date set forth in any Tenant Estoppel
Certificate delivered to the Purchaser that would
effect the truth, accuracy or correctness of such
Tenant Estoppel Certificate both as of the date
made and as of the date hereof. This representation
shall survive the Closing for six (6) months.
5. Notwithstanding anything to the contrary
in Section
3.2.1 of the Purchase Agreement, any Rents received
by the Seller from any tenant during the period
commencing on the Closing through and including
January 31, 2001 shall be applied to amounts due
and payable by such tenant in the manner specified by
such tenant in writing at the time such payment is
made, provided that if such tenant does not so
specify, such Rents shall be paid over and belong
to the Purchaser. All Rents received by the Seller
after such period shall be promptly applied in
accordance with the priorities set forth in Section
3.2.1 of the Purchaser Agreement.
6. Within a reasonable time following
December 31, 2000,
subject to time frames, if any, contained in any
tenant lease, the Seller will reconcile the CAM
charges paid by the tenants for the fiscal year
ended December 31, 2000 to the actual CAM
expenses incurred by the Seller for such fiscal
year. The
Seller's CAM reconciliation shall be subject to
the prior reasonable approval of the Purchaser prior
to being billed to the tenants. The Purchaser shall
use reasonable efforts to collect
any underpayments of CAM charges within three (3)
months of the date that Seller provides such
CAM reconciliation to the
Purchaser. The Purchaser hereby agrees to pay
over such CAM underpayments to the Seller upon
receipt. If there are any overpayments of CAM
charges, the Seller shall promptly pay the amount
of such CAM overpayments to the Purchaser. The
Purchaser shall hold such CAM overpayments in trust
for the tenants owed such overpayments and the
Purchaser shall promptly forward such overpayments
to the applicable tenants. Any deductions taken by
the tenants related to the 2000 CAM
reconciliation will be treated as CAM
overpayments and the Seller shall promptly pay over
an amount equal to such sums to the Purchaser
and the Purchaser shall be entitled to keep the
same.
7. For a period of three (3) months following
the Closing, the Seller shall, upon Purchaser's
request, reasonably assist the Purchaser in its
efforts to have any party, other than the
Seller, to any of the contracts and warranties listed
on Schedule 2 to the Assignment and Assumption of
Contracts and Licenses (executed at closing by the
Seller and the Purchaser) consent to the assignment
of such contracts and warranties to the Purchaser and
the Purchaser shall promptly reimburse the Seller
for all reasonable costs incurred by the Seller
in providing such assistance.
8. The Seller hereby agrees to credit the
Purchase Price
at the Closing in the amount of (i) One Hundred
Eighty Nine Thousand Dollars ($189,000) for unpaid
tenant allowances owed by the Seller to ULTA3
Cosmetics & Salon, Inc. ("ULTA"), and (ii) Five
Thousand Nine Hundred Sixty-seven Dollars and Sixty-
three Cents ($5,967.63) for a CAM short payment
by Marshalls of Deptford NJ, Inc.
9. The Seller hereby agrees to credit the
Purchase Price
at the Closing in the amount of Twelve Thousand
Dollars ($12,000) for repair work to address water
infiltration at the OfficeMax space suggested by
Land Dimensions in its December 19, 2000
memorandum. To fund repairs in excess of the
aforementioned Twelve Thousand Dollars ($12,000), if
any, the Seller agrees to deposit Fifty Thousand
Dollars ($50,000) with the Escrow Agent at the
Closing, which sum shall be held pursuant to the
terms of the escrow agreement (the
"Escrow Agreement for Repair Work")
attached hereto as Exhibit 2. The Purchaser hereby
agrees that the Seller's liability with regard to
the repair shall in no event exceed the Fifty
Thousand Dollar ($50,000) placed in escrow and that
the Purchaser shall indemnify the Seller for
any liabilities in excess thereof arising out
of the Seller's obligation as landlord under the
Leases. The Purchaser hereby agrees that the
existence of the Escrow Agreement for Repair Work
shall be kept strictly confidential (provided that
the Purchaser may disclose its existence to the
Purchaser's Representatives) and shall not, without
the prior written consent of the Seller, be
disclosed by the Purchaser or the Purchaser's
Representatives, in any manner whatsoever, in whole
or in part. The provisions of this paragraph shall
survive the Closing.
10. The Seller agrees to deposit Two
Hundred Thousand
Dollars ($200,000) (the "Escrow Amount") with the
Escrow Agent at the Closing to settle an exclusivity
claim made by Xxxxx Beauty Company, Inc. ("Xxxxx"),
which sum shall be held pursuant to the terms of
the escrow agreement (the "Escrow Agreement for
Tenant Claim") attached hereto as Exhibit 3. The
Purchaser hereby agrees that it will, at all
times, use good faith efforts to resolve Sally's
exclusivity claim. The Purchaser may draw down up
to Fifty Thousand Dollars ($50,000) of the Escrow
Amount to settle the exclusivity claim with Xxxxx.
If the Purchaser and Xxxxx xxxxxx for less than
Fifty Thousand Dollars ($50,000), the Purchaser
shall be entitled to receive fifty percent (50%) of
the difference between the settlement amount and
Fifty Thousand Dollars ($50,000) from the Escrow
Amount. The Seller and the Purchaser shall both
be entitled to draw down the Escrow Amount for
costs associated with claims made by ULTA under
Section 7.1(b) of the ULTA lease. If Xxxxx
brings an exclusivity claim against the Purchaser,
the Purchaser may draw down the Escrow Amount
for legal expenses associated with defending or
settling such claim. Purchaser shall also be
entitled to draw down the Escrow Amount (i) to
reimburse the Purchaser for rent owed but not paid
by Xxxxx prior to Xxxxx vacating its space,
provided that, any sums subsequently recovered by
the Purchaser shall be promptly remitted to the
Seller, (ii) to reimburse the Purchaser for rent
that would have been paid by Xxxxx during the period
between Xxxxx vacating its space and the installment
of a replacement tenant in Sally's space, provided
that, any sums subsequently recovered by the
Purchaser shall be promptly
remitted to the Seller (such draw down shall not
exceed Thirtyfive Thousand Dollars ($35,000)), (iii)
for the cost of refitting Sally's space for a
replacement tenant (such draw down shall not exceed
Sixty Thousand Dollars ($60,000)), and (iv) to pay
any judgment or penalty or any other costs related to
any judgment or penalty for the Xxxxx claim,
provided that all appeals, if any, have been
exercised. The Purchaser hereby agrees that it
will promptly exercise its rights under the Xxxxx
lease upon a payment default by Xxxxx. The unused
portion of the escrow shall be promptly returned
to the Seller on June 30, 2001, provided,
however, that such unused portion shall not be
returned until the Tenant's claim has been
resolved. So long as the Escrow Agreement for
Tenant Claim is outstanding, the Purchaser shall
promptly provide the Seller copies of all
correspondence between Xxxxx and the Purchaser,
including, without limitation, all monthly sales
reports for Xxxxx, provided that the Purchaser's
failure to deliver such correspondence shall not be
a default hereunder. The Purchaser hereby
agrees that the Seller's
liability with regard to the exclusivity claim
made by Xxxxx
shall in no event exceed the Two Hundred
Thousand Dollar ($200,000) placed in escrow and
that the Purchaser shall indemnify the Seller
for any liabilities in excess thereof arising
out of the Seller's obligation as landlord under
the Xxxxx and ULTA leases. The Seller will not
initiate any contact with Xxxxx or respond to any
contact from Xxxxx without the prior consent of the
Purchaser, provided, however, that no consent of the
Purchaser shall be required if the Seller's
failure to respond would prejudice any legal
rights of the Seller. The
Seller shall promptly provide the Purchaser
copies of all correspondence between Xxxxx and the
Seller, provided that the Purchaser's failure to
deliver such correspondence shall not be a default hereunder. The
Purchaser hereby agrees that the
existence of the Escrow Agreement for Tenant Claim
shall be kept strictly confidential (provided that
the Purchaser may disclose its existence to the
Purchaser's Representatives) and shall not, without
the prior written consent of the Seller, be disclosed
by the Purchaser or the Purchaser's Representatives,
in any manner whatsoever, in whole or in part.
The provisions of this paragraph shall survive the
Closing.
11. The Seller hereby agrees that it will only
attempt to collect base rent, not holdover rent,
from holdover tenant M.E.E. Enterprises, Inc.
(Future Rest) owing to the Seller for the period
prior to the Closing.
12. The Purchase Agreement is hereby
further amended as follows:
(a) The Table of Defined Terms to
the Purchase
Agreement is hereby amended by deleting the
definitions of "Deposit" and "Escrow Agent"
and substituting in lieu thereof the
following new definitions in proper alphabetical
sequence:
"Deposit" shall mean zero dollars ($0).
"Escrow Agent" shall mean the Title Company.
(b) The definitions "Additional
Downpayment", "Cash
Downpayment", "Clearing House Bank", "Escrow
Agreement" and "Letter of Credit" in the
Table of Defined Terms to the Purchase
Agreement are hereby deleted in their entirety.
(c) The text of Section 1.2 of the
Purchase Agreement
is hereby deleted in its entirety and
replaced with the following:
"The delivery of the Deed and the
consummation of the transactions
contemplated by this Agreement (the
"Closing") shall take place at the offices
of Dechert, 4000 Xxxx Atlantic
Tower, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000 on
Friday, December 22, 2000 (the "Closing
Date").
(d) The text of Section 2 of the Purchase
Agreement is hereby deleted in its entirety
and replaced with the following:
"The purchase price to be paid by the
Purchaser to the Seller for the Property
(the "Purchase Price") is Eleven
Million Five Hundred Thousand Dollars
($11,500,000). The Purchase Price, plus or
minus the apportionments set forth in
Section 3, shall be paid at the Closing
by bank wire transfer of immediately
available funds to the Seller's account
or to the
account or accounts of such other party or
parties as may be designated by the
Seller on or before the Closing Date.
(e) Section 6(g) of the Purchaser
Agreement is hereby
deleted in its entirety and replaced with the
following:
"(g) The marketing fund for the
Property has a zero balance and there is
no merchant's association for the
Property."
(f) Section 15 of the Purchase Agreement
is hereby
deleted in its entirety and replaced with the
following:
"15. Intentionally Deleted."
(g) Section 17.3 of the Purchase
Agreement is hereby
amended by adding the words ", lenders
providing or considering financing for the
Property, investors" after the words
"consultants, engineers".
(h) The text of Section 21 of the
Purchase Agreement
is hereby deleted in its entirety and
replaced with the following:
"Except for those obligations,
liabilities, representations and
warranties expressly made to survive
herein and except
as otherwise expressly
provided herein or in the Conveyance
Documents, the Purchaser's acceptance of
the Deed shall be deemed a discharge of
all of the obligations of the Seller and
the Purchaser hereunder and all of the
Seller's and the Purchaser's
representations, warranties, covenants and
agreements herein shall merge in the
documents and agreements executed at
the Closing and shall not survive the
Closing."
(i) Exhibit I and Exhibit K to the
Purchase Agreement
are hereby deleted in their entirety.
(j) Schedule 3 to the Purchaser Agreement
is hereby
amended by deleting therefrom the contract with
(i) Xxxxxxxx Landscape for Landscaping, and
(ii) Xxxxxx Creative Mktg Center for
Promotion.
13. Except as stated herein the Purchase
Agreement is hereby reinstated, ratified, confirmed
and shall remain in full force and effect.
14. This First Amendment shall be interpreted
and enforced in accordance with the laws of the
State of New Jersey without reference to principles
of conflicts of laws.
15. This First Amendment may be executed and
delivered in any number of counterparts, each of
which when so executed and delivered shall be
deemed to be an original and all of which shall
constitute one and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, this First Amendment
has been duly executed by the parties hereto as of
the day and year first above written.
SELLER:
DEPTFORD CROSSING
ASSOCIATES, L.P.
By: LS Deptford Crossing, L.P.,
its general partner
By: LS Deptford, Inc., its
general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PURCHASER:
THE HUTENSKY GROUP, LLC
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Member
