Exhibit 10.2
SECOND AMENDMENT TO
WEST SHORE PLAZA
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW
INSTRUCTIONS (the "Agreement") is made by and between AMERICAN FREEHOLDS, a
Nevada general partnership ("Seller") and GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Buyer"), this 26th day of August,
2003.
Recital of Fact
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Seller and Buyer have entered into that certain WestShore Plaza
Purchase and Sale Agreement and Escrow Instructions dated June 30, 2003 as
amended by that certain First Amendment dated August 5, 2003 ("Purchase
Agreement"), with respect to WestShore Plaza, Tampa, Florida ("Property").
Seller and Purchaser wish to amend the Purchase Agreement as set forth
herein.
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
Capitalized terms not otherwise defined in this Agreement shall have
the meanings therefor set forth in the Purchase Agreement.
1. Buyer engaged KPMG to conduct due diligence with
regard to the Property. KPMG analyzed the Real Property, the Improvements,
Leases, Service Agreements, the Personal Property and the Intangible Assets and
concluded that the purchase price and the allocation of the Purchase Price to
the components of the Property should be revalued and adjusted. A copy of the
KPMG appraisal and analysis is attached hereto as Exhibit A. Accordingly,
Section 1.2 (a) and (b) of the Purchase Agreement is deleted in its entirety and
the following is substituted in its place:
1.2 Purchase Price.
(a) The total purchase price for the Property
("Purchase Price") shall be One Hundred Fifty-Two Million and
no/100 Dollars ($152,000,000.00).
(b) Allocation of Purchase Price. The Purchase
Price is allocated as follows:
Real Property Interests $116,800,000.00
Non-Realty Interests
Operating Covenants 21,460,000.00
Management Rights 6,730,000.00
Administrative Service
Rights 2,120,000.00
Profit Centers 4,330,000.00
Development Rights 560,000.00
TOTAL: $152,000,000.00
The Buyer and Seller agree (i) to jointly complete and
separately file Form 8594 with its respective federal income
tax return for the tax year in which the Close of Escrow (as
hereinafter defined) occurs, and (ii) that no party will take
a position on any return, information statement or writing
relating to any tax, before any governmental agency charged
with the collection of any such tax or in any judicial
proceeding that is in any manner inconsistent with the terms
of such allocation, without the written consent of the other
party which consent shall not be unreasonably withheld or
delayed.
2. Section 2.3(o) is deleted in its entirety and the
following is substituted in its place:
(o) Recordation; Escrow Fees. The cost of any
municipal, state, and county transfer taxes including the
applicable documentary stamp tax assessment required to be
paid in connection with the recording of the deed required
herein, and recording fees shall be paid by Buyer. Buyer shall
prepare, execute and file Florida Department of Revenue form
DR-219. Escrow fees of Escrow Holder shall be divided and paid
equally by Buyer and Seller.
Buyer agrees to assume all responsibility for, and shall
defend, indemnify and hold harmless Seller and its partners
with respect to all claims, losses, damages, liabilities,
costs and expenses including, without limitation, reasonable
attorneys' fees and disbursements incurred by Seller and its
partners, relating to:
(i) the payment or underpayment of any
municipal, state, or county sales, use, or transfer taxes
including documentary stamp taxes with respect to the transfer
of the Property, including all interest and penalties;
(ii) the filing of a Florida Department
of Revenue form DR-219 and any sums due in connection
therewith; and
(iii) any audit, proceeding or action
initiated by any municipal, county or state authority
regarding the KPMG appraisal, the allocation of the Purchase
Price, the assessment of the Property for property tax
purposes, the payment of transfer taxes or any other state or
local tax, or regarding the assessment or valuation of the
Property.
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This indemnity shall survive the Close of Escrow and the
recording of the Deed for four (4) years and shall continue to
apply to any claims initiated during the four year period
following the Close of Escrow.
3. Seller has contracted for the painting of the
catalogue entrance to the ▇▇ ▇▇▇▇▇ store and the replacement and installation of
approximately thirty (30) ceiling tiles in the ▇▇ ▇▇▇▇▇ space ("▇▇▇▇▇ Repair
Work"). Buyer and Seller acknowledge that the ▇▇▇▇▇ Repair Work may be completed
after the Close of Escrow. Seller agrees to pay all costs of the completion of
the ▇▇▇▇▇ Repair Work and provide final lien waivers all persons providing labor
or materials for such work.
4. (a) Seller has assigned to Buyer that certain Sponsor
Agreement dated November 19, 2002 with Media General Operations, Inc. d/b/a The
Tampa Tribune ("Sponsor") relating to the construction and operation of a child
play area. Seller constructed the improvements in the child's play area at
Seller's expense at a cost of approximately $200,000.00. Pursuant to the Sponsor
Agreement, Media General Operations is obligated to reimburse Seller for the
cost of the construction of the play area. Buyer agrees that all payments
received from Sponsor under the Sponsor Agreement will be promptly paid to
Seller after receipt. Buyer will have no responsibility to collect delinquent
payments owed by Sponsor provided Seller will have the right to collect the
payment of such delinquent sums from the Sponsor in accordance with the
procedures of Section 2.3(g)(iv)(A) of the Purchase Agreement.
(b) Seller agrees to give Buyer a credit at
Closing for the following matters:
Parking Deck Contract: $800,000.00
Aerosoles: Construction Deposit $ 5,000.00
Fast Fix Jewelry: Construction Deposit $ 5,000.00
TOTAL: $810,000.00
(c) Seller shall pay when due all Tenant
Improvement Allowances, Lease Commissions and Tenant Coordination Fees
(collectively "Seller Costs") listed on Schedule 1 attached hereto. Buyer and
Seller will hold back in escrow the sums necessary to pay such costs pursuant to
a separate agreement.
5. Exhibit "C" to the Agreement is deleted in its
entirety and Exhibit "C" attached hereto is substituted in its place.
6. Exhibit "E" to the Agreement is deleted in its
entirety and Exhibit "E" attached hereto is substituted in its place.
7. Exhibit "J" to the Agreement is deleted in its
entirety and Exhibit "J" attached hereto is substituted in its place.
8. Exhibit "R" to the Agreement is deleted in its
entirety and Exhibit "R" attached hereto is substituted in its place.
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9. Exhibit "S" to the Agreement is deleted in its
entirety and Exhibit "S" attached hereto is substituted in its place.
10. Exhibit "T" to the Agreement is deleted in its
entirety and Exhibit "T" attached hereto is substituted in its place.
11. Exhibit "W" to the Agreement is deleted in its
entirety and Exhibit "W" attached hereto is substituted in its place.
12. Except as expressly modified herein, the Purchase
Agreement shall remain unmodified and in full force and effect.
13. This Agreement may be executed by the exchange of
copies bearing the facsimile signatures of the parties.
14. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, and their successors and assigns.
[Signatures on following page]
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SELLER:
AMERICAN FREEHOLDS,
a Nevada general partnership
By: GROSVENOR INTERNATIONAL
(AMERICAN FREEHOLDS) LIMITED,
a Nevada corporation
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Assistant Secretary
BUYER:
GLIMCHER PROPERTIES LIMITED PARTNERSHIP
a Delaware limited partnership
By: GLIMCHER PROPERTIES CORPORATION, a
Delaware corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Executive Vice President
ESCROW HOLDER APPROVES THE ESCROW
PROVISIONS AND SPECIFIC INSTRUCTIONS
TO ESCROW HOLDER SET FORTH IN THE
FOREGOING AGREEMENT AND AGREES TO
ACT IN ACCORDANCE THEREWITH.
FLAGLER TITLE COMPANY
By: ______________________________
Its: ______________________________
Date: August _____, 2003
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