<PAGE>
EXECUTION COPY
AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (this "Agreement")
is made as of June 20, 2000, by PHILIPS INTERNATIONAL REALTY, L.P., a Delaware
limited partnership, having an office at 417 Fifth Avenue, Third Floor, New
York, New York 10016 ("Operating Partnership"), PHILIPS LAKE WORTH CORP., a New
York corporation, having an office at c/o Philips International Realty Corp.,
417 Fifth Avenue, Third Floor, New York, New York 10016 (individually, "Lake
Worth GP" and, together with Operating Partnership, jointly and severally,
"Seller"), and PHILIP PILEVSKY, an individual having a residence at 41
Harborview West, Lawrence, New York 11559, or his designee (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Operating Partnership owns a 99.99% limited partnership interest
(the "LP Interest") in Philips Lake Worth, L.P., a New York limited partnership
("Limited Partnership");
WHEREAS, Lake Worth GP owns a 0.01% general partnership interest (the "GP
Interest" and, together with the LP Interest, the "Interest") in Limited
Partnership;
WHEREAS, Limited Partnership owns that certain tract, piece or parcel of
land, situated in the Village of Palm Springs, County of Palm Beach, State of
Florida, and more particularly described on Exhibit A attached hereto and made a
part hereof (the "Property");
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract, dated as of April 28, 2000 (the "Original Agreement"), in connection
with the sale and purchase of the Property;
WHEREAS, Seller and Purchaser desire to amend and restate the Original
Agreement in its entirety to modify certain provisions thereof; and
WHEREAS, subject to the terms, covenants, conditions and agreements
hereinafter set forth, Seller desires to sell, transfer, convey, assign and
deliver to Purchaser the Interest, which Interest represents its entire interest
in Limited Partnership, and Purchaser desires to purchase, acquire and accept
from Seller the Interest.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and the mutual
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
<PAGE>
1. Sale of Interest; Purchase Price.
1.01 Subject to the terms and conditions of this Agreement, Seller hereby
agrees to sell, transfer, convey, assign and deliver to Purchaser,
and Purchaser hereby agrees to purchase, acquire and accept from
Seller, the Interest, at the Closing (as defined in Section 2).
1.02 The purchase price for the Interest shall be Seller's net cost of
owning and operating the Property, which the parties acknowledge and
agree to be approximately Six Million Six Hundred Thousand and
00/100 ($6,600,000.00) Dollars as of April 28, 2000 (the "Purchase
Price"), subject to adjustment as more particularly set forth in
Section 1.03, which shall be due and payable at the Closing by bank,
certified or attorney trust check or by wire transfer of immediately
available funds to such bank account or accounts as shall be
designated by Seller in writing two (2) days prior to the Closing.
1.03 Notwithstanding anything in this Agreement to the contrary, in the
event that the Seller's actual net cost of owning and operating the
Property as of the Closing Date is more than the estimated Six
Million Six Hundred Thousand and 00/100 ($6,600,000.00) Dollars, the
estimated Purchase Price shall be increased by an amount equal to
the difference between (a) the Seller's actual, total net cost of
owning and operating the Property as of the Closing Date, as
established by evidence reasonably acceptable to Purchaser, and (b)
Six Million Six Hundred Thousand and 00/100 ($6,600,000.00) Dollars
(the "Additional Cost Adjustment")
2. Closing. The consummation of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Pryor Cashman Sherman & Flynn
LLP, 410 Park Avenue, 10th Floor, New York, New York 10022, on that date and at
the time prescribed for such Closing as set forth in Section 6.2 of the Group B
Agreement (as defined below)(the "Closing Date").
3. Representations, Warranties and Covenants.
3.01 Seller hereby represents and warrants to Purchaser as follows:
(a) (i) Operating Partnership is a duly formed and validly
existing partnership organized and in good standing under the
laws of the State of Delaware, and Lake Worth GP is a duly
formed and validly existing limited partnership organized and
in good standing under the laws of the State of New York, and
(ii) this Agreement and Seller Documents (as defined in
Section 5.01) do not and will not contravene any provision of
any by-laws or limited partnership agreement to which Seller
is bound.
2
<PAGE>
(b) Seller has or shall have by the Closing Date the full legal
right, power and authority to execute and deliver this
Agreement and Seller Documents to consummate the transaction
contemplated hereby and to perform its obligations hereunder
and under Seller Documents.
(c) This Agreement and Seller Documents do not and will not
contravene any judgment, order, decree, writ or injunction
issued against Seller, or materially violate a material
provision of any law or governmental ordinance, rule,
regulation, order or requirement (collectively, "Laws") to
which Seller is or will be subject, except such violations as
would not have a material adverse effect on any of the
transactions contemplated hereby if finally determined
adversely to such party. The consummation of the transactions
contemplated hereby will not result in a breach or constitute
a default or event of default by Seller, under any agreement
to which any of them or any of their assets are or will be
subject or bound and will not result in a violation of any
Laws to which Seller is or will be subject, except such
violations as would not have a material adverse effect on the
transaction contemplated hereby if finally determined
adversely to the Seller.
(d) Seller owns the Interest free and clear of any and all liens
and encumbrances.
(e) At the Closing, upon Seller's delivery of an assignment of the
Interest in substantially the form set forth on Exhibit "B"
annexed hereto (the "Assignment") and all of the other Seller
Documents, good and valid title to the Interest will pass to
Purchaser.
(f) There are no statutory or contractual preemptive rights,
rights of refusal or options with respect to the transfer
and/or assignment of any portion of the Interest.
(g) No representation or warranty by Seller in this Agreement and
no statement contained herein or in any document, certificate,
or other writing furnished or to be furnished by Seller to
Purchaser pursuant to the provisions hereof or in connection
with the transactions contemplated hereby contains or will
contain any untrue statement of material fact or omits or will
omit to state any material fact necessary in order to make the
statements herein or therein not misleading. Seller has
disclosed to Purchaser all facts known or reasonably available
to Seller that are material to the transactions contemplated
herein.
3.02 Purchaser hereby represents and warrants to Seller as follows as to
itself:
3
<PAGE>
(a) Purchaser has the full legal right, power and authority to
execute and deliver this Agreement and Purchaser's Documents
to consummate the transactions contemplated hereby, and to
perform his obligations hereunder and under Purchaser's
Documents.
(b) This Agreement and Purchaser's Documents do not and will not
contravene any judgment, order, decree, writ or injunction
issued against Purchaser, or materially violate a material
provision of any Laws to which Purchaser is or will be
subject, except such violations as would not have a material
adverse effect on any of the transactions contemplated hereby
if finally determined adversely to Purchaser. Purchaser hereby
represents and warrants that the consummation of the
transactions contemplated hereby will not result in a breach
or constitute a default or event of default by Purchaser under
any agreement to which Purchaser or any of his assets is
subject or bound and will not result in a violation of any
Laws applicable to Purchaser, except such violations as would
not have a material adverse effect on the transactions
contemplated hereby if finally determined adversely to
Purchaser.
(c) No representation or warranty by Purchaser in this Agreement
and no statement contained herein or in any document,
certificate, or other writing furnished or to be furnished by
Purchaser to Seller pursuant to the provisions hereof or in
connection with the transactions contemplated hereby contains
or will contain any untrue statement of material fact or omits
or will omit to state any material fact necessary in order to
make the statements herein or therein not misleading.
Purchaser has disclosed to Seller all facts known or
reasonably available to Purchaser that are material to the
transaction contemplated herein.
4. Conditions Precedent to Closing.
4.01 Seller's obligation under this Agreement to consummate the
transaction contemplated herein is subject to the fulfillment of
each of the following conditions.
(a) The representations and warranties of Purchaser contained
herein shall be true, accurate and correct in all material
respects as of the Closing Date, except to the extent they
expressly relate only to an earlier date.
(b) All consents and approvals of governmental authorities and
parties to agreements to which Purchaser is a party or by
which any asset owned by Purchaser is bound that are required
with respect to the consummation of the transactions
contemplated by this Agreement shall have been obtained and
copies thereof shall have been delivered to Seller at or prior
to the Closing.
4
<PAGE>
(c) On or prior to the Closing Date, (i) Purchaser shall not have
applied for or consented to the appointment of a receiver,
trustee or liquidator for himself or any of his assets unless
the same shall have been discharged prior to the Closing Date,
and no such receiver, liquidator or trustee shall have
otherwise been appointed, unless same shall have been
discharged prior to the Closing Date, (ii) Purchaser shall not
have admitted in writing an inability to pay his debts as they
mature, (iii) Purchaser shall not have made a general
assignment for the benefit of creditors, (iv) Purchaser shall
not have been adjudicated a bankrupt or insolvent, or had a
petition for reorganization granted with respect to Purchaser,
(v) Purchaser shall not have filed a voluntary petition
seeking reorganization or an arrangement with creditors or
taken advantage of any bankruptcy, reorganization, insolvency,
readjustment or debt, dissolution or liquidation law or
statute, or filed an answer admitting the material allegations
of a petition filed against him in any proceeding under any
such law or statute, or had any petition filed against him in
any proceeding under any such law or statute unless the same
shall have been dismissed, canceled or terminated prior to the
Closing Date.
(d) This Agreement shall not have been terminated, if expressly
permitted herein.
(e) The closing of title (the "Group A Closing") under and
pursuant to that certain Purchase and Sale Agreement, dated
April 28, 2000 (as amended, the "Group A Agreement"), by and
among Munsey Park Associates, LLC, North Shore Triangle, LLC,
Philips Yonkers, LLC, Philips Henry, LLC, Philips Shopping
Center Fund, L.P. and Philips Lake Mary Associates, L.P.,
collectively as Seller, and Kimco Income Operating
Partnership, L.P., as Purchaser, for each Property or Ground
Lease (each as defined in the Group A Agreement) shall have
occurred or the properties to be conveyed thereunder shall
have been excluded or postponed pursuant to the terms of the
Group A Agreement.
(f) All of the material conditions to and under the Group B
Agreement required to have been satisfied as of immediately
before the sale described in Section 1 above shall have been
satisfied or waived. For the purposes of this Agreement, the
"Group B Agreement" shall mean that certain Asset
Contribution, Purchase and Sale Agreement dated April 28, 2000
(as amended), by and among Operating Partnership, Philips
International Realty Corp. ("Philips Corp."), Certain
Affiliated Parties Signatory Thereto, KIR Acquisition, LLC,
and Kimco Income Operating Partnership, L.P.
4.02 Each Purchaser's obligation under this Agreement to consummate the
transaction contemplated herein is subject to the fulfillment of
each of the following conditions.
5
<PAGE>
(a) The representations and warranties of Seller contained herein
shall be true, accurate and correct in all material respects
as of the Closing Date, except to the extent they relate only
to an earlier date.
(b) All consents and approvals of governmental authorities and
parties to agreements to which Seller is a party or by which
any asset of Seller is bound that are required with respect to
the consummation of the transactions contemplated by this
Agreement shall have been obtained and copies thereof shall
have been delivered to Purchaser at or prior to the Closing.
(c) On or prior to Closing Date, (i) Seller shall not have applied
for or consented to the appointment of a receiver, trustee or
liquidator for itself or any of its assets unless the same
shall have been discharged prior to the Closing Date, and no
such receiver, liquidator or trustee shall have otherwise been
appointed, unless same shall have been discharged prior to the
Closing Date, (ii) Seller shall not have admitted in writing
an inability to pay its debts as they mature, (iii) Seller
shall not have made a general assignment for the benefit of
creditors, (iv) Seller shall not have been adjudicated a
bankrupt or insolvent, or had a petition for reorganization
granted with respect to itself, (v) Seller shall not have
filed a voluntary petition seeking reorganization or an
arrangement with creditors or taken advantage of any
bankruptcy, reorganization, insolvency, readjustment or debt,
dissolution or liquidation law or statute, or filed an answer
admitting the material allegations of a petition filed against
it in any proceedings under any such law or statute, or had
any petition filed against it in any proceeding under any of
such law or statute unless the same shall have been dismissed,
canceled or terminated prior to the Closing Date.
(d) This Agreement shall not have been terminated, if expressly
permitted herein.
(e) The Group A Closing under and pursuant to the Group A
Agreement for each Property or Ground Lease (each as defined
in the Group A Agreement) shall have occurred or the
properties to be conveyed thereunder shall have been excluded
or postponed pursuant to the terms of the Group A Agreement.
(f) All of the material conditions to and under the Group B
Agreement required to have been satisfied as of immediately
before the sale described in Section 1 above shall have been
satisfied or waived.
6
<PAGE>
5. Delivery of Documents at Closing.
5.01 Deliveries by Seller. Seller agrees to deliver (or cause to be
delivered) to Purchaser at the Closing the following agreements and
documents ("Seller Documents"), all satisfactory in form and
substance to Purchaser:
(a) The Assignment, duly executed by Seller.
(b) A certificate of good standing and/or subsistence, dated not
more than thirty (30) days prior to the Closing Date, issued
by the Secretary of State of the State of Delaware with
respect to Operating Partnership, of the State of Maryland
with respect to Philips Corp., and of the State of New York
with respect to Lake Worth GP.
(c) Certified copy of a consent duly adopted by Philips Corp.
authorizing the execution, delivery and performance of this
Agreement and of each of Seller Documents.
(d) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this Agreement
and to comply with the terms hereof.
5.02 Deliveries by Purchaser. Purchaser agrees to deliver (or cause to be
delivered) to Seller at the Closing the following agreements and
documents ("Purchaser's Documents"), all satisfactory in form and
substance to Seller:
(a) The Purchase Price.
(b) The Assignment, duly executed by Purchaser.
(c) Such other consents, documents and instruments as may be
reasonably required to effectuate the terms of this Agreement
and to comply with the terms hereof.
5.03 Further Assurances. After the Closing, at the request of either
party hereto, and without further conditions or consideration, each
party shall execute and deliver from time to time such other
instruments, documents, agreements and/or take such other actions as
the other party may reasonably request in order to more effectively
consummate the transactions contemplated herein. This Section 5.03
shall survive the Closing.
6. Remedies. If any party hereto shall be in default of or breach any of his
respective obligations hereunder, then each party shall have such rights or
remedies available at law and/or in equity, including, without limitation, the
right of specific performance.
7
<PAGE>
7. Notices. All notices, requests, demands, consents or waivers and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered by (i) hand, (ii) facsimile (with
immediate confirmation), (iii) a nationally recognized overnight courier for
next business day delivery (charges prepaid), or (iv) certified or registered
mail, return receipt requested (postage prepaid):
If to any Seller, to:
c/o Philips International Realty Corp.
417 Fifth Avenue, Third Floor
New York, New York 10016
Attention: Louis J. Petra
Facsimile: (212) 545-1355
With a copy to:
Pryor Cashman Sherman & Flynn, LLP
410 Park Avenue
New York, New York 10022
Attention: Jonathan A. Bernstein, Esq.
Stephen G. Epstein, Esq.
Facsimile: (212) 326-0806
If to Purchaser, as follows:
Philip Pilevsky
41 Harborview West
Lawrence, New York 11559
Facsimile: (516) 239-3687
With a copy to:
McDermott Will & Emery
50 Rockefeller Plaza
New York, New York 10020-1605
Attention: Keith M. Pattiz, Esq.
Facsimile: (212) 547-5444
or, in each case, to such other person or address as any party shall
furnish to the other parties in writing. Notices shall be deemed to be
delivered upon receipt or rejection.
8. Confidentiality.
8.01 (a) Seller, on behalf of itself and its Representatives (as defined
in Section 8.03(a)), agrees that, prior to the Closing, all
information relating to this Agreement
8
<PAGE>
shall be kept strictly confidential by Seller and its
Representatives and shall not, without the prior written consent of
Purchaser, be disclosed by Seller or its Representatives, in any
manner whatsoever, in whole or in part, and will not be used by
Seller or its Representatives, directly or indirectly, for any
purpose other than evaluating the transactions contemplated
hereunder. The provisions of this Section 8.01(a) shall in no event
apply to any information which is a matter of public record and
shall not prevent Seller, Philips Corp. or any of their Affiliates
or Representatives (i) from complying with any Law to which any of
them is subject and (ii) from making any disclosure required to be
made by any of them which any of them deem appropriate to the
public, the shareholders of Philips Corp. or any other person or
persons pursuant to any Securities and Exchange Law or other Law.
(b) Purchaser, on behalf of himself and his Representatives, agrees
that, prior to the Closing, all information relating to this
Agreement shall be kept strictly confidential by Purchaser and his
Representatives and shall not, without the prior written consent of
the Seller, be disclosed by Purchaser or his Representatives in any
manner whatsoever, in whole or in part, and will not be used by
Purchaser or his Representatives, directly or indirectly, for any
purpose other than evaluating the transactions contemplated
hereunder. The provisions of this Section shall in no event apply to
any information which is a matter of public record and shall not
prevent a Purchaser or any of his Representatives from complying
with any Law to which Purchaser or any such Representative is
subject.
8.02 (a) Seller shall indemnify and hold Purchaser and his
Representatives harmless from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by such Purchaser or any
Affiliate of Purchaser or any Representative of Purchaser and
arising out of or in connection with a breach by any Seller or any
Affiliate or Representative of any Seller of any provision of this
Section 8.
(b) Purchaser shall indemnify and hold Seller and its
Representatives harmless from and against any and all claims,
demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees
and disbursements) suffered or incurred by the Seller, any Affiliate
and arising out of or in connection with a breach by Purchaser or
any Affiliate or Representative of Purchaser of any provision of
this Section 8.
8.03 As used in this Agreement, the following terms shall have the
following meanings:
(a) "Representative" shall mean with respect to Seller or Purchaser,
any member, shareholder, partner, manager, director, officer,
trustee, principal, agent, employee, contractor, broker, and/or
other representative of Seller or Purchaser,
including, the attorneys, accountants and financial advisors of
Seller or Purchaser.
9
<PAGE>
(b) "Affiliate" shall mean, with respect to Seller or Purchaser, a
parent, subsidiary or other affiliate of Seller or Purchaser.
8.04 The provisions of this Section 8 shall survive the Closing.
9. Miscellaneous.
9.01 This Agreement shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and
no consent or approval required pursuant to this Agreement shall be
effective, unless the same shall be in writing and signed by or on
behalf of the party to be affected thereby.
9.02 This Agreement may not be assigned by any party hereto.
Notwithstanding the preceding sentence, Seller shall have the right,
without the prior consent of Purchaser, to assign this Agreement to
Philips Corp. or its designee. Notwithstanding anything to the
contrary contained in this Section 9.02, Purchaser shall have the
right, without the prior consent of Seller, to assign this Agreement
to any entity in which Purchaser owns at least 51% of the
outstanding interests of such entity and controls such entity,
provided, however, that Purchaser shall deliver a true and complete
copy of any such assignment to Seller not more than five (5) days
after the earlier of the execution of such assignment by the parties
thereto or the effective date thereof, which assignment shall
provide that the assignee of Purchaser assumes all of Purchaser's
obligations and liabilities under this Agreement. If Purchaser
assigns this Agreement pursuant to this Section 9.02, Purchaser
shall not be released from any of its obligations or liabilities
hereunder. Any assignment of this Agreement by Purchaser which does
not comply with the terms and conditions of this Section 9.02 shall
be null and void.
9.03 This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and to their respective heirs, executors,
administrators, successors and permitted assigns.
9.04 All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged
into this Agreement, which alone fully and completely expresses the
agreement between them in connection with this transaction and which
is entered into after full investigation, neither party relying upon
any statement, understanding, representation or agreement made by
the other not embodied in this Agreement. This Agreement shall be
given a fair and reasonable construction in accordance with the
intentions of the parties hereto, and without regard to or aid of
canons requiring construction against the party drafting this
Agreement.
10
<PAGE>
9.05 Except as otherwise expressly provided herein, all of the parties'
representations, warranties, covenants and agreements herein shall
merge into the documents and agreements executed at the Closing and
shall not survive the Closing.
9.06 No failure or delay of either party in the exercise of any right or
remedy given to such party hereunder or the waiver by any party of
any condition hereunder for his benefit (unless the time specified
herein for exercise of such right or remedy has expired) shall
constitute a waiver of any other or further right or remedy nor
shall any single or partial exercise of any right or remedy preclude
other or further exercise thereof or any other right or remedy. No
waiver by any party of any breach hereunder or failure or refusal by
any other party to comply with his obligations shall be deemed a
waiver of any other or subsequent breach, failure or refusal to so
comply.
9.07 Neither this Agreement nor any memorandum thereof shall be recorded
by either party hereto and any attempted recordation hereof shall be
void and shall constitute a default under this Agreement.
9.08 This Agreement may be executed in one or more counterparts, each of
which so executed and delivered shall be deemed an original, but all
of which taken together shall constitute but one and the same
instrument.
9.09 The caption headings in this Agreement are for convenience only and
shall not be construed to modify, explain or alter any of the terms,
covenants or conditions herein contained. Any and all schedules and
exhibits referenced herein are by this reference hereby made a part
hereof and incorporated herein.
9.10 This Agreement shall be interpreted and enforced in accordance with
the laws of the State of New York, without reference to its
conflicts of law principles and, in the event of any dispute in
connection with this Agreement, venue shall be in the federal and
state courts located in New York County.
9.11 If the last day of the period prescribed herein for the giving of
any notice, election, consent, approval, demand, objection or
request or the submission of any documents by any party hereunder
shall fall on a Saturday, Sunday or any day observed as a public
holiday by the federal government or the State of New York, then
such period shall be deemed to be extended to the immediately
following day which is not a Saturday, Sunday or such public
holiday. The term "business day" as used in this Agreement shall
mean any day other than Saturday, Sunday or any day observed as a
public holiday by the federal government or the State of New York.
9.12 Unless otherwise specified herein, for purposes of this Agreement
(a) references to persons or parties include their permitted
successors and assigns; (b) references to modifications or
amendments shall in all events mean modifications and
11
<PAGE>
amendments; (c) references to statutes are to be construed as
including all rules and regulations adopted pursuant to the statute
referred to and all statutory provisions consolidating, amending or
replacing the statute referred to; (d) references to agreements and
other contractual instruments shall be deemed to include all
subsequent amendments and other modifications thereto entered into
from time to time after the date hereof; (e) the words "include" or
"including", and words of similar import, shall be deemed to be
followed by the words "but not limited to" or "without limitation";
(f) the words "hereto", "herein", "hereof' and "hereunder", and
words of similar import, refer to this Agreement in its entirety;
and (g) unless otherwise specified herein, all references to
Sections are to Sections of this Agreement. Terms defined herein may
be used in the singular or the plural; when used in the singular and
preceded by "a", "an" or "any", such term shall be taken to
indicated one or more members of the relevant class; and when used
in the plural, such term shall be taken to indicate all members of
the relevant class.
9.13 If any provision of this Agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this
Agreement and to this end the provisions of this Agreement are
intended to be and shall be severable.
9.14 The parties hereto hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on
any matter arising out of or in any way connected with this
Agreement.
9.15 This Agreement shall not be binding upon any party unless and until
each of the parties shall have executed and delivered a fully
executed original of this Agreement to the other parties.
9.16 All schedules attached hereto are hereby incorporated herein by
reference and made a part hereof.
9.17 In the event that any party hereto brings an action or proceeding
for a declaration of the rights of the parties under this Agreement,
for injunctive relief, or for an alleged breach or default of this
Agreement, or any other action arising out of this Agreement or the
transactions contemplated hereby, the prevailing party in any such
action shall be entitled to an award of reasonable attorneys' fees,
disbursements and any court costs incurred in connection with such
action or proceeding, in addition to any other damages or relief
awarded, regardless of whether such action proceeds to final
judgment.
10. As Is
10.01 Purchaser expressly acknowledges and agrees that, subject to and in
accordance with the terms and conditions of this Agreement, in connection with
Purchaser's acquisition of
12
<PAGE>
the Interest in Limited Partnership, Purchaser accepts the Property on an
"as-is-where-is and with all faults" basis.
10.02 This Agreement, as written, contains all the terms of the agreement
entered into between the parties as of the date hereof, and Purchaser
acknowledges that neither Seller nor any of its Affiliates or Representatives,
has made any representations or held out any inducements to Purchaser, and
Seller hereby specifically disclaims any representation, oral or written, past,
present or future, other than those specifically set forth in this Agreement.
Without limiting the generality of the foregoing, Purchaser has not relied on
any representations or warranties, and neither Seller nor any of its Affiliates
or Representatives has or is willing to make any representations or warranties,
express or implied, other than as may be expressly set forth herein, as to: (a)
the status of title to the Property; (b) the current or future real estate tax
liability, assessment or valuation of the Property; (c) the potential
qualification of the Property for any and all benefits conferred by any Laws
whether for subsidies, special real estate tax treatment, insurance, mortgages
or any other benefits, whether similar or dissimilar to those enumerated; (d)
the compliance of the Property in its current or any future state with
applicable Laws or any violations thereof, including, without limitation, those
relating to access for the handicapped, environmental or zoning matters, and the
ability to obtain a change in the zoning or a variance in respect to the
Property's non-compliance, if any, with zoning Laws; (e) the nature and extent
of any right-of-way, lease, possession, lien, encumbrance, license, reservation,
condition or otherwise; (f) the availability of any financing for the purchase,
alteration, rehabilitation or operation of the Property from any source,
including, without limitation, any government authority or any lender; (g) the
current or future use of the Property; (h) the present and future condition and
operating state of any personal property and the present or future structural
and physical condition of the buildings or other improvements located on the
Property, their suitability for rehabilitation or renovation, or the need for
expenditures for capital improvements, repairs or replacements thereto; (i) the
viability, financial condition or continued occupancy of any tenant; (j) the
status of the leasing market in which any Property is located; or (k) the actual
or projected income or operating expenses of the Property.
10.03 Purchaser or anyone claiming by, through or under Purchaser, hereby
fully and irrevocably releases Seller, its Affiliates and Representatives, from
any and all claims that it may now have or hereafter acquire against Seller, its
Affiliates or Representatives for any cost, loss, liability, damage, expense,
action or cause of action, whether foreseen or unforeseen, arising from or
related to any construction defects, errors or omissions on or in the Property,
the presence of environmentally hazardous, toxic or dangerous substances, or any
other conditions (whether patent, latent or otherwise) affecting the Property.
Purchaser further acknowledges and agrees that this release shall be given full
force and effect according to each of its expressed terms and provisions,
including, but not limited to, those relating to unknown and suspected claims,
damages and causes of action.
10.04 This Section 10 shall survive the Closing or sooner termination of
this Agreement.
13
<PAGE>
11. Transfer to Philips Corp. The parties hereto agree and acknowledge that, in
the event that the Closing contemplated hereunder has not occurred prior to the
closing scheduled under the Group B Agreement, then Seller shall have the right,
but not the obligation, to distribute (as a non-liquidating distribution) the
Interest to Philips Corp., which shall, by its execution of this Agreement, be
and hereby agrees to assume all of the rights, liabilities and obligations of
Sellers hereunder and be bound by the provisions of this Agreement as if Philips
Corp. were the Seller hereunder, and Sellers shall thereafter be released from
any and all liabilities and obligations arising under or relating to this
Agreement.
[The remainder of this page is intentionally left blank.]
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered all on the day and year first above written.
SELLER:
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware
limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By: /s/ Louis J. Petra
-------------------------------
Name: Louis J. Petra
Title: President
PHILIPS LAKE WORTH CORP., a New York
corporation
By: /s/ Louis J. Petra
-------------------------------
Name: Louis J. Petra
Title: President
PURCHASER:
/s/ Philip Pilevsky
-----------------------------------
PHILIP PILEVSKY
<PAGE>
SOLELY FOR THE PURPOSE OF
AGREEING TO BE BOUND BY THE
TERMS AND CONDITIONS OF
SECTION 11 OF THIS AGREEMENT:
PHILIPS INTERNATIONAL REALTY CORP.,
A Maryland corporation
BY: /s/ Louis J. Petra
-------------------------------
Name: Louis J. Petra
Title: President
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
<PAGE>
EXHIBIT "B"
ASSIGNMENT OF PARTNERSHIP INTEREST
IN PHILIPS LAKE WORTH, L.P.
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (this "Assignment") is made
as of this ___ day of ___________, 2000, by PHILIPS INTERNATIONAL REALTY, L.P.,
a Delaware limited partnership, having an office at 417 Fifth Avenue, Third
Floor, New York, New York 10016 ("Operating Partnership"), PHILIPS LAKE WORTH
CORP., a New York corporation, having an office at c/o Philips International
Realty, L.P., 417 Fifth Avenue, Third Floor, New York, New York 10016
(individually, "Lake Worth GP" and, together with Operating Partnership, jointly
and severally, "Assignor"), and PHILIP PILEVSKY, an individual having a
residence at 41 Harborview West, Lawrence, New York 11559, or his designee (the
"Assignee").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into that certain Purchase and Sale
Agreement dated as of June __, 2000 for the purchase and sale of the Interest
(as hereinafter defined);
WHEREAS, Operating Partnership owns a 99.99% limited partnership interest
(the "LP Interest") in Philips Lake Worth, L.P., a New York limited partnership
("Limited Partnership");
WHEREAS, Lake Worth GP owns a 0.01% general partnership interest (the "GP
Interest" and, together with the LP Interest, the "Interest") in Limited
Partnership;
WHEREAS, Limited Partnership owns that certain tract, piece or parcel of
land, situated in the Village of Palm Springs, County of Palm Beach, State of
Florida, and more particularly described on Schedule "A" attached hereto and
made a part hereof (the "Property"); and
WHEREAS, Assignor desires to assign the Interest which represents its
entire interest in Limited Partnership to Assignee, and Assignee desires to
accept the assignment of the Interest, and to assume, fulfill, perform and
discharge all of Assignor's obligations and liabilities with respect to the
Interest.
NOW, THEREFORE, for Ten ($10) Dollars and other good and valuable
consideration, the mutual receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. All of the recitals set forth above are incorporated herein as if fully
set forth below.
2. Assignor represents and warrants to Assignee that: (a) Assignor is the
record owner of the Interest, and the Interest is free and clear of any
lien, claim or encumbrance; (b) Assignor has
<PAGE>
full right, power and authority to perform the terms of this Assignment;
and (c) Assignor has not heretofore sold, assigned, transferred,
encumbered, pledged or hypothecated all or any part of the Interest.
3. Assignor hereby sells, grants, assigns, transfers and conveys to Assignee
all of its legal and beneficial right, title and interest in and to the
Interest which shall include, without limitation, all right, title and
interest, if any, of Assignor in and to the assets of Limited Partnership,
the corresponding amount of Assignor's capital account, and Assignor's
right to receive any past, present or future profits, gains, losses and
distributions of any nature from Limited Partnership, to be allocated to
Assignee as set forth on Schedule "B" annexed hereto.
4. Assignee hereby accepts the Assignment of the Interest and agrees to
assume, fulfill, perform and discharge all the obligations and liabilities
of Assignor with respect to the Interest, accruing or obligated to be
performed from and after the date hereof.
5. This Assignment shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns.
6. This Assignment is the final expression of, and contains the entire
agreement between, the parties with respect to the subject matter hereof,
and supersedes all prior understandings with respect thereto.
7. This Assignment may not be modified, changed, supplemented or terminated,
nor may any obligations hereunder be waived, except by written instrument,
signed by the party to be charged or by its agent duly authorized in
writing, or as otherwise expressly permitted herein.
8. This Assignment shall be interpreted and enforced in accordance with the
laws of the State of New York without reference to principles of conflicts
of laws.
9. This Assignment may be executed in one or more counterparts, each of which
shall be deemed to be an original Assignment, but all of which, taken
together, shall constitute but one and the same Assignment.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed and delivered all on the day and year first above written.
WITNESSES: ASSIGNOR:
PHILIPS INTERNATIONAL REALTY, L.P., a Delaware
limited partnership
By: Philips International Realty Corp., a
Maryland corporation, its general partner
By:
------------------------ -------------------------------
Print Name: Name:
------------- Title:
Print Name:
-------------
PHILIPS LAKE WORTH CORP.
By:
------------------------ -------------------------------
Print Name: Name:
------------- Title:
Print Name:
-------------
ASSIGNEE:
------------------------- -----------------------------------
Print Name: PHILIP PILEVSKY
-------------
-------------------------
Print Name:
-------------
<PAGE>
SCHEDULE A
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
<PAGE>
SCHEDULE B
ALLOCATION OF THE INTEREST
ASSIGNEE: PERCENTAGE INTEREST (GP INTEREST)
--------- ---------------------------------
Philip Pilevsky* .01%
ASSIGNEE: PERCENTAGE INTEREST (LP INTERESTS)
--------- ----------------------------------
Philip Pilevsky* 99.99%
TOTAL: 100.00%
=======
-----------------------------------------------------
* Or his designee
