Exhibit 2.03
SECOND AMENDMENT TO CONTRACT FOR SALE AND PURCHASE
THIS SECOND AMENDMENT TO CONTRACT FOR SALE AND PURCHASE ("THIS
AMENDMENT"), made as of the 23rd day of June, 2005, by and between, TALLAHASSEE
MALL PARTNERS, LTD., a Florida limited partnership (the "SELLER"), and FMP
TALLAHASSEE LLC, a Delaware limited liability company (the "BUYER"), is based
upon the following
R E C I T A L S:
A. Seller and Buyer are the Seller and Buyer, respectively, under a
certain Contract for Sale and Purchase dated April 20, 2005, (the "ORIGINAL
CONTRACT") relating to the "Tallahassee Mall," so-called, located in
Tallahassee, Florida;
B. Seller and Buyer have previously amended the Original Contract by
that certain Amendment to Contract for Sale and Purchase (the "First Amendment")
dated May 3, 2005.
C. Seller and Buyer have agreed to amend the Original Contract, as
previously amended by the First Amendment, (collectively, the "Contract") in the
manner and to the extent hereinafter set forth,
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby mutually acknowledged, Seller and Buyer do hereby
acknowledge, confirm and memorialize their mutual understandings in the
following
A G R E E M E N T:
1. Paragraph 1(m) of the Original Contract is hereby amended by
deleting the existing paragraph and inserting the following in lieu thereof:
The representations and warranties of Seller to Buyer which are set
forth in Paragraph 6 hereunder shall terminate at Closing and Seller
shall have no liability to Buyer arising from such representations
and warranties after the Closing.
2. Paragraph 7(c)(ii) of the Original Contract is hereby deleted in its
entirety.
3. Seller shall indemnify, defend and hold Buyer harmless following the
Closing Date from any claims by Parisian for damages arising from events
occurring prior to the Closing Date.
4. The Purchase Price is hereby decreased by the sum of $65,000.
5. Except as stated in Paragraph 3 of this Amendment, Buyer accepts the
Tenant Estoppel Letters obtained by Seller pursuant to Paragraph 5(d) of the
Original Contract and acknowledges that, except as to any Tenant Estoppel
Letters containing Negative Tenant Disclosures received by Buyer following the
date of this Amendment, the condition stated in Paragraph 5(d) of the Original
Contract has been satisfied.
6. The first sentence of Paragraph 8(c)(i) is hereby amended by adding
the words "been billed but" in the first sentence thereof, following the words
"With respect to Rent that have" and before "not been collected". Paragraph
8(c)(i) is further amended by adding the following sentence to the end thereof:
"For purposes of this Paragraph 8(c)(i) `Delinquent Rents' shall include all
recurring, monthly charges billed by Seller to Tenants prior to Closing such as,
but not limited to, marketing charges, storage rents, percentage rents in lieu
of fixed rents, construction charges and sprinkler charges. Except as modified
herein, Paragraph 8(c)(i) remains in full force and effect.
7. Paragraph 8(c)(ii) is hereby amended by deleting the existing
paragraph and inserting the following in lieu thereof:
(ii) COST RECOVERY ITEMS: All Cost Recovery Items that have been
billed but not collected by Seller as of the Closing Date and are
allocable to periods prior to Closing shall be treated as Delinquent
Rents pursuant to Paragraph 8(c)(i) above, provided that all
payments by Tenants attributable to Buyer's subsequent annual
reconciliation of the Cost Recovery Items as to calendar year 2005,
which shall take place during early 2006, shall be the sole property
and responsibility of Buyer including, but not limited to (I) the
recovery of real estate taxes from Tenant AMC Theater; (II) payments
by Tenants of excess operating expenses allocable to calendar year
2005; and (III) any credits due to Tenants allocable to amounts paid
in 2005.
8. Paragraph 8(c)(iii) is hereby amended by deleting the existing
paragraphs (A) and (B) and inserting the following in lieu thereof:
(iii) PERCENTAGE RENT: Percentage rents paid or payable by Tenants
under the Leases after the Closing attributable to any part of
calendar year 2005 shall be the sole property of Buyer
notwithstanding that such Percentage rents may be allocable, in full
or in part, to periods during Seller's ownership.
9. Paragraph 8(c)(iv) is hereby deleted in its entirety.
10. Except to the extent amended herein, the Contract is hereby
ratified and confirmed by the parties and declared by them as remaining valid
and binding obligations of each of such parties. All capitalized terms contained
in this Amendment that are not expressly defined herein shall have the same
meanings, if any, as are ascribed to such terms in the Original Contract. In the
event of any conflict or ambiguity between the terms and provisions of this
Amendment and the terms and provisions of the Contract, this Amendment shall
control to the extent of such conflict or ambiguity. Any references in the
Original Contract, the First Amendment, or in this Amendment to "this Agreement"
shall hereafter be deemed to refer collectively to the Original Contract,
together with and as modified by the First Amendment and this Amendment. This
Amendment may be executed by the parties hereto in separate counterparts, all of
which, when taken together, shall constitute one and the same agreement. No
agreement shall exist pursuant to this Amendment unless and until this Amendment
or a separate counterpart hereof is signed by each of the parties hereto.
Facsimile counterparts of this Amendment as executed by such parties shall be
deemed and treated as executed originals for all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
SELLER:
TALLAHASSEE MALL PARTNERS, LTD.
a Florida limited partnership
By: SGT Corp., its general partner
By:
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Name: Gregory R. Greenfield
Title: President
BUYER:
FMP TALLAHASSEE LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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