EXHIBIT 10.04
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
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THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this
"Amendment") is made and entered into as of the 13th day of September, 2004, by
and between Roger V. Calarese and A. Richard Calarese, as trustees of the
Franklin Village Trust, dated January 19, 1979, as amended ("Seller"), having an
office at 1000 Franklin Village Drive, Franklin, Massachusetts 02038, and
Cedar-Franklin Village LLC, a Delaware limited liability company ("Buyer"),
having an office c/o Cedar Shopping Centers Partnership, L.P., 44 South Bayles
Avenue, Port Washington, New York 11050.
WHEREAS, Buyer and Seller have entered into that certain Agreement of
Purchase and Sale, dated as of August 2, 2004, as amended by that certain
Amendment to Agreement of Purchase and Sale dated as of September 2, 2004, as
further amended by that certain Second Amendment to Agreement of Purchase and
Sale dated as of September 10, 2004 (as amended, the "Agreement").
WHEREAS, Seller and Buyer desire to amend the terms of the Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment, in consideration of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, Seller and Buyer hereby covenant and agree
as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Agreement.
2. The parties acknowledge that, pursuant to the terms of the Agreement
(i) Seller is obligated to repay the Mortgage Loan at or prior to the Closing
and to convey the Property to Buyer at the Closing free and clear of the
Mortgage, and (ii) Buyer is obligated to pay the Prepayment Consideration to the
Mortgagee at the Closing.
3. Seller agrees that, notwithstanding anything to the contrary
contained in the Agreement, Buyer shall have the right, but not the obligation,
to take title to the Property subject to the Mortgage Loan so long as Buyer
shall assume and agree to repay the Mortgage Loan (an "Assumption"), it being
acknowledged by Seller and Buyer that any Assumption shall be entirely subject
to the Mortgagee's approval rights under the terms of the Mortgage Loan
Documents.
4. In connection with the prospective Assumption, Seller shall (i)
request an estoppel certificate ("Mortgagee Estoppel") duly executed by
Mortgagee to be dated not more than thirty (30) days prior to the Closing Date,
certifying as to (A) the outstanding principal balance of the Mortgage Loan, (B)
the interest rate, (C) the date through which interest on the loan has been
paid, (D) the value of any escrows held by Mortgagee on Seller's account, and
(E) that the Mortgagee (a) has not delivered any notice of default under the
Mortgage Loan Documents that remains uncured, and (b) does not have knowledge of
any default under the Mortgage Loan Documents, and (ii) use good faith and
diligent efforts to obtain a consent, duly executed by Mortgagee (the "Mortgagee
Consent"), to be dated not more than thirty (30) days prior to the Closing Date,
authorizing the Assumption and the sale of the Property to Buyer. Seller shall
promptly deliver the original executed Mortgagee Estoppel and the Mortgagee
Consent to Buyer as and when each is received by Seller. Seller shall not be
responsible for the payment of any fees payable to the Mortgagee on account of
the prospective Assumption. Buyer shall, at its own cost and expense, cooperate
with Seller by providing Mortgagee with information and documents and all fees
and cost reimbursements (including, if applicable, all processing and Mortgagee
counsel fees) required by Mortgagee in connection with the Mortgagee Consent and
Mortgagee Estoppel and prospective Assumption.
5. In the event of the Assumption (i) Section 4.2.17 and Section 6.1.2
of the Agreement shall be deemed to be modified to eliminate Seller's obligation
to repay the Mortgage Loan and eliminate the Mortgage at or prior to the
Closing, (ii) Section 7.4.2, Section 8.8, the second sentence of Section 2.1,
and the last two sentences of Section 7.1.1 shall be deemed to be omitted from
the Agreement, (iii) Buyer shall be responsible for the payment to the Mortgagee
of any fees contemplated by the Loan Documents to be payable in connection with
the Assumption, (iv) the amount of the Balance shall be reduced by the
outstanding principal balance of the Mortgage Loan as of the Closing Date, as
adjusted by the amount of any escrows deposited by Seller with Mortgagee to the
extent that Seller's interest therein is transferred to Buyer in connection with
the Assumption, and (v) interest on the Mortgage Loan for the calendar month in
which the Closing occurs shall be prorated as of the Proration Date. In the
event the Assumption occurs, unless Seller is released by Mortgagee from
liability in connection with the Mortgage Loan, Buyer shall and does hereby
agree to hold harmless and indemnify Seller, the Partnership, and all partners
of the Partnership (as partners and individually) from and against any and all
obligations, liabilities, damages, costs and expenses (including reasonable
attorneys' fees) in connection with the Mortgage Loan or any document or
agreement evidencing or given in connection with the Mortgage Loan (including,
without limitation, obligations under that certain Environmental Indemnity
Agreement, dated as of November 5, 1997, given in connection with the Mortgage
Loan). The indemnity and hold harmless herein contained shall survive the
Closing and shall remain in full force and effect until the expiration of the
periods required by applicable statutes of limitations with respect to all
obligations arising in connection with the Mortgage Loan.
6. The parties acknowledge that the Purchase Price was agreed upon on
the basis that (a) Enviro Supply was and would continue to be a tenant in good
standing at the Property occupying approximately one thousand two hundred
(1,200) square feet of space in Building J at the Property (the "Enviro Space")
and paying approximately twenty dollars ($20) per square foot per annum in rent
plus additional rent on account of its occupancy of the Enviro Space and (b)
Golf USA was and would continue to be a tenant in good standing at the Property
occupying approximately two thousand (2,000) square feet of space in Building J
at the Property (the "Golf USA Space") and paying approximately twenty dollars
($20) per square foot per annum in rent plus additional rent on account of its
occupancy of the Golf USA Space. The parties further acknowledge that Enviro
Supply is not in occupancy at the Property and that Golf USA is not in good
standing at the Property and is expected to vacate its premises at the Property
prior to the Closing. The parties have agreed that on the first day of each of
the first twenty-four (24) full calendar months following the Closing commencing
with the first full calendar month following the month in which the Closing
occurs, Seller shall pay to Buyer to compensate Buyer for lost rental for the
Enviro Space and the Golf USA Space the amount of $5,333.33 plus estimated pro
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rata charges on account of taxes, insurance, and common area maintenance at the
Property (the "Enviro/Golf Payment Amount"). From and after the commencement and
receipt by Buyer of regularly scheduled rent from replacement tenants under
replacement leases for the Golf USA Space and the Enviro Space, in each calendar
month during such twenty-four (24) month period, the Enviro/Golf Payment Amount
shall be reduced by any rent required to be paid in such calendar month by such
replacement tenants then occupying the Enviro Space and the Golf USA Space, it
being understood and agreed that to the extent either of the Enviro Space or
Golf USA Space have been re-leased after Closing, from and after the
commencement and receipt by Buyer of regularly scheduled rent under such
replacement leases, Seller's obligation with respect to the Enviro/Golf Payment
Amount shall cease except to the extent that the aggregate base monthly rent
provided for in the applicable replacement leases is less than the Enviro/Golf
Payment Amount. Buyer agrees to work diligently to attempt to re-lease the
Enviro Space and the Golf USA Space and to reasonably lease such spaces to
comparable convenience-oriented "non-credit" "niche" tenants. Except as
expressly modified or amended by this Amendment, all of the terms, covenants and
conditions of the Agreement are hereby ratified and confirmed.
7. The New Management Agreement shall provide that the failure of
Seller to pay to Buyer the Enviro/Golf Payment Amount shall constitute a default
under the New Management Agreement and entitle Buyer to offset any unpaid
portion of the Enviro/Golf Payment Amount against amounts payable under the New
Management Agreement.
8. Attached hereto as Attachment A is a revised rent roll for the
Property dated as of August 19, 2004 (the "Revised Rent Roll"). The parties
agree that the Revised Rent Roll shall replace the Rent Roll appearing as
Exhibit I to the Agreement and shall be deemed the Rent Roll referred to in the
Agreement for all purposes.
9. The parties agree that the Due Diligence Period shall be deemed to
expire on Monday, September 13, 2004, and that notwithstanding anything
contained in Section 7.1 of the Agreement, the Scheduled Closing Date shall be
November 1, 2004.
10. Except insofar as reference to the contrary is made in any such
instrument, all references to the "Agreement" in any future correspondence or
notice shall be deemed to refer to the Agreement as modified by this Amendment.
11. This Amendment may be signed in any number of counterparts, each of
which shall be deemed to be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
12. Delivery of this Amendment by facsimile by any party shall
represent a valid and binding execution and delivery of this Amendment by such
party.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
FRANKLIN VILLAGE TRUST
By:
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Name: Roger V. Calarese
Title: Trustee
By:
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Name: A. Richard Calarese
Title: Trustee
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By:
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Name:
Title:
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ATTACHMENT A
Rent Roll