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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 1517-25 THIRD L.P., a New York limited
partnership, having an office at c/o Philips International Realty Corp., 417
Fifth Avenue, Third Floor, New York, New York 10016 ("Seller"), and PHILIP
PILEVSKY, an individual having a residence at 41 Harborview West, Lawrence, New
York 11559, or his designee ("P.Pilevsky"), SL Florida LLC, a Delaware limited
liability company having an office at c/o Philips International Realty Corp.,
417 Fifth Avenue, Third Floor, New York, New York 10016, or its designee
("SLF"), Allen Pilevsky an individual having a residence at 1282 Marginal Road,
Atlantic Beach, New York 11509, or his designee ("A.Pilevsky"); Fred Pilevsky,
an individual having a residence at 749 Wilson Court, North Woodmere, New York
11581, or his designee ("F.Pilevsky"; and, together with P.Pilevsky, SLF, and
A.Pilevsky, collectively, "Purchasers", and each, a "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller owns a 50% membership interest (the "Interest") in 1517-25
Third Avenue LLC, a New York limited liability company (the "Company");
WHEREAS, the Company owns that certain tract, piece or parcel of land,
situated in the City, County and State of New York, having a street address of
1517-25 Third Avenue, and more particularly described on Exhibit A attached
hereto and made a part hereof (the "Property"); and
WHEREAS, Seller and P.Pilevsky entered into that certain Purchase and Sale
Agreement, dated as of April 28, 2000 (the "Original Agreement"), in connection
with the sale and purchase of the Interest;
WHEREAS, Seller and P.Pilevsky and the other parties hereto desire to
amend and restate the Original Agreement in its entirety to include SLF,
A.Pilevsky, F.Pilevsky, PFDC and MHC (or their respective designees) as
additional Purchasers and to modify certain additional 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 Purchasers the Interest, which Interest represents its entire
interest in Company, and Purchasers desire 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:
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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 Purchasers,
and each 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 Four Million and 00/100 ($4,000,000)
Dollars as of April 28, 2000 (the "Purchase Price"), subject to
adjustment as more particularly set forth in Sections 1.03 and 1.04,
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. Each Purchaser
shall remit to Seller its allocable share of the Purchase Price, in
proportion to the percentage of the Interest that each such
Purchaser is to receive, as set forth in Schedule "1" annexed
hereto.
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 Four
Million and 00/100 ($4,000,000), 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 Purchasers, and (b) Four Million and 00/100
($4,000,000) (the "Additional Cost Adjustment").
1.04 Notwithstanding anything in this Agreement to the contrary, in the
event that Philips International Realty Corp. ("Philips Corp.")
determines that the net amount Philips Corp shall have available to
distribute to its shareholders and unitholders (assuming that no
units have been redeemed) upon the liquidation of Philips Corp.
(which amount shall include, among other items, the equity value of
all of Philips Corp.'s assets (as if none of them had been
distributed or sold pursuant to Philips Corp.'s Plan of Liquidation
and Dissolution) and the Purchase Price) in respect of all
outstanding shares of its stock and all outstanding partnership
units in Operating Partnership (including stock options and
warrants) entitled to receive such liquidating distribution, on a
fully diluted basis (the "Actual Per Share Distribution Amount"),
shall be less than (or greater than) $18.25 (the "Target Per Share
Distribution Amount"), then the Purchase Price payable by the
Purchasers pursuant to Section 1.02 (as adjusted by Section 1.03)
shall be increased (or decreased) by an amount (the "Additional
Purchase Price") equal to the product of (a) 1,870,873 (i.e., the
number of operating units in the Operating Partnership that are held
by Purchasers) multiplied by (b) the difference between (i) the
Target Per Share Distribution Amount and (ii) the Actual Per
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Share Distribution Amount. Each Purchaser shall remit to Seller its
allocable share of the Additional Purchase Price, in proportion to
the percentage of the Interest that each such Purchaser is to
receive, as set forth in Schedule "1" annexed hereto.
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 Purchasers as follows:
(a) (i) Seller 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 limited partnership agreement
to which Seller is bound.
(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 (the
"Assignment") and all of
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the other Seller Documents, good and valid title to the
Interest will pass to Purchasers.
(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
Purchasers 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 Purchasers all facts known or reasonably
available to Seller that are material to the transactions
contemplated herein.
3.02 Each Purchaser hereby represents and warrants to Seller follows:
(a) Such Purchaser has the full legal right, power and authority
to execute and deliver this Agreement and Purchasers'
Documents to consummate the transactions contemplated hereby,
and to perform his obligations hereunder and under Purchasers'
Documents.
(b) This Agreement and Purchasers' Documents do not and will not
contravene any judgment, order, decree, writ or injunction
issued against such Purchaser, or materially violate a
material provision of any Laws to which such 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 such
Purchaser. Such 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 such Purchaser under any agreement to which such
Purchaser or any of his/its assets is subject or bound and
will not result in a violation of any Laws applicable to such
Purchaser, except such violations as would not have a material
adverse effect on the transactions contemplated hereby if
finally determined adversely to such Purchaser.
(c) No representation or warranty by such Purchaser in this
Agreement and no statement contained herein or in any
document, certificate, or other writing furnished or to be
furnished by such 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. Such Purchaser has disclosed
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to Seller all facts known or reasonably available to such
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 Purchasers 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 any Purchaser is a party or by
which any asset owned by a 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.
(c) On or prior to the Closing Date, (i) no Purchaser shall 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) no Purchaser shall
have admitted in writing an inability to pay his debts as they
mature, (iii) no Purchaser shall have made a general
assignment for the benefit of creditors, (iv) no Purchaser
shall have been adjudicated a bankrupt or insolvent, or had a
petition for reorganization granted with respect to Purchaser,
(v) no Purchaser shall 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 (the
"Group A Agreement") dated April 28, 2000, by and among Munsey
Park Associates, LLC, North Shore Triangle, LLC, Philips
Yonkers, LLC, Philips Henry, LLC, Philips
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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 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.
(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 such 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
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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 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.
5. Delivery of Documents at Closing.
5.01 Deliveries by Seller. Seller agrees to deliver (or cause to be
delivered) to Purchasers at the Closing the following agreements and
documents ("Seller Documents"), all satisfactory in form and
substance to Purchasers:
(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 New York.
(c) Certified copy of a consent duly adopted by PL-1515-25 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 Purchasers. Each Purchaser agrees to deliver (or cause
to be delivered) to Seller at the Closing the following agreements
and documents ("Purchaser Documents"), all satisfactory in form and
substance to Seller:
(a) The Purchase Price.
(b) The Assignment, duly executed by such 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.
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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. 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 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 any Purchaser, as follows:
Philip Pilevsky
41 Harborview West
Lawrence, New York 11559
Facsimile: (516) 239-3687
Fred Pilevsky
749 Wilson Court
North Woodmere, New York 11581
Facsimile: (212) 547-5444
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Allen Pilevsky
1282 Marginal Road
Atlantic Beach, New York 11509
Facsimile: (212) 547-5444
SL Florida LLC
c/o Philips International Realty Corp.
417 Fifth Avenue, Third Floor
New York, New York 10016
Attention: Sheila Levine
Facsimile: (212) 545-1355
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 shall be kept strictly
confidential by Seller and its Representatives and shall not,
without the prior written consent of Purchasers, 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) Each 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 such Purchaser and
his Representatives and shall not, without the prior written consent
of the Seller, be disclosed by such Purchaser or his Representatives
in any manner whatsoever, in whole or in part, and will not be
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used by such 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 such Purchaser or any such
Representative is subject.
8.02 (a) Seller shall indemnify and hold each 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 such Purchaser or any Representative of such Purchaser
and arising out of or in connection with a breach by Seller or any
Affiliate or Representative of Seller of any provision of this
Section 8.
(b) Each 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 such Purchaser
or any Affiliate or Representative of such Purchaser of any
provision of this Section 8. Any liability of a Purchaser under this
Section 8.02(b) shall be several, and not joint, liability.
8.03 As used in this Agreement, the following terms shall have the
following meanings:
(a) "Representative" shall mean with respect to Seller or any
Purchaser, any member, shareholder, partner, manager, director,
officer, trustee, principal, agent, employee, contractor, broker,
and/or other representative of Seller or such Purchaser, including,
the attorneys, accountants and financial advisors of Seller or such
Purchaser.
(b) "Affiliate" shall mean, with respect to Seller or any Purchaser,
a parent, subsidiary or other affiliate of Seller or such 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.
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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 Purchasers, to assign this Agreement to
PL-1517-25 Corp., a New York corporation or Philips International
Realty, L.P., a Delaware limited partnership, or any their
respective designees. Notwithstanding anything to the contrary
contained in this Section 9.02, any Purchaser shall have the right,
without the prior consent of Seller, to assign this Agreement to any
entity in which such Purchaser owns at least 51% of the outstanding
interests of such entity and controls such entity, provided,
however, that such 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 such Purchaser assumes all of such
Purchaser's obligations and liabilities under this Agreement. If a
Purchaser assigns this Agreement pursuant to this Section 9.02, such
Purchaser shall not be released from any of its obligations or
liabilities hereunder. Any assignment of this Agreement by a
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.
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.
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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 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.
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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 Each Purchaser expressly acknowledges and agrees that, subject to
and in accordance with the terms and conditions of this Agreement, in connection
with such Purchaser's acquisition of the Interest in Company, such 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 each Purchaser
acknowledges that neither Seller nor any of its Affiliates or Representatives,
has made any representations or held out any inducements to such 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, no Purchaser has 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
13
<PAGE>
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 Each Purchaser or anyone claiming by, through or under such
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. Each 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.
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
Seller hereunder and be bound by the provisions of this Agreement as if Philips
Corp. were the Seller hereunder, and Seller 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:
1517-25 THIRD L.P., a New York limited
partnership
BY: PL-1517-25 Corp., a New York
corporation, its general partner
By: Philips International Realty, L.P.,
its sole shareholder
By: Philips International Realty
Corp., its general partner
By: /s/ Louis J. Petra
-----------------------
Name: Louis J. Petra
Title: President
PURCHASERS:
/s/ Philip Pilevsky
------------------------------------
PHILIP PILEVSKY
/s/ Allen Pilevsky
------------------------------------
ALLEN PILEVSKY
/s/ Fred Pilevsky
------------------------------------
FRED PILEVSKY
<PAGE>
SL FLORIDA LLC,
a Delaware limited liability company
BY: /s/ Sheila Levine
----------------------------------
Name: Sheila Levine
Title: Member
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>
SCHEDULE "1"
ALLOCATION OF THE INTEREST
ASSIGNEE: PERCENTAGE INTEREST
--------- -------------------
Philip Pilevsky* 82.34%
Allen Pilevsky** 5.18%
Fred Pilevsky*** 2.03%
SL Florida LLC+ 10.45%
TOTAL: 100.00%
======
--------------------------------------------------------------------------------
Assuming a total of 1,870,873 units owned in the aggregate,
* Assumes ownership of 1,540,290 units
** Assumes ownership of 96,943 units
*** Assumes ownership of 38,090 units
+ Assumes ownership of 195,550 units
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
<PAGE>
EXHIBIT B
ASSIGNMENT OF MEMBERSHIP INTEREST IN
1517 THIRD AVENUE LLC
THIS ASSIGNMENT OF PARTNERSHIP INTEREST (this "Assignment") is made
as of this ___ day of ___________, 2000, by 1517-25 THIRD L.P., a New York
limited partnership, having an office at c/o Philips International Realty Corp.,
417 Fifth Avenue, Third Floor, New York, New York 10016 ("Assignor"), and PHILIP
PILEVSKY, an individual having a residence at 41 Harborview West, Lawrence, New
York 11559, or his designee ("P.Pilevsky"), SL Florida LLC, a Delaware limited
liability company having an office at c/o Philips International Realty Corp.,
417 Fifth Avenue, Third Floor, New York, New York 10016, or its designee
("SLF"), Allen Pilevsky an individual having a residence at 1282 Marginal Road,
Atlantic Beach, New York 11509, or his designee ("A.Pilevsky"); Fred Pilevsky,
an individual having a residence at 749 Wilson Court, North Woodmere, New York
11581, or his designee ("F.Pilevsky"; and, together with P.Pilevsky, SLF, and
A.Pilevsky, collectively, "Assignees", and each an "Assignee").
W I T N E S S E T H:
WHEREAS, Seller and P.Pilevsky entered into that certain Purchase and Sale
Agreement, dated as of April 28, 2000 (the "Original Agreement"), in connection
with the sale and purchase of the Interest (as hereinafter defined);
WHEREAS, Seller and P.Pilevsky and the other parties hereto desire to
amend and restate the Original Agreement in its entirety to include SLF,
A.Pilevsky, F.Pilevsky, PFDC and MHC (or their respective designees) as
additional Purchasers and to modify certain additional provisions thereof; and
WHEREAS, Assignor owns a 50% membership interest (the "Interest") in
1517-25 Third Avenue LLC, a New York limited liability company ("Company");
WHEREAS, Company owns that certain tract, piece or parcel of land,
situated in the City, County and State of New York, having a street address of
1517-25 Third Avenue, and more particularly described on Exhibit A attached
hereto and made a part hereof (the "Property"); and
WHEREAS, Assignor desires to assign the Interest which represents its
entire interest in Company 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:
<PAGE>
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 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 Company, 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 Company.
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.
[The remainder of this page is intentionally left blank.]
2
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first written above.
ASSIGNOR:
1517-25 THIRD L.P., a New York limited
partnership
BY: PL-1517-25 Corp., a New York
corporation, its general partner
By: Philips International Realty, L.P.,
its sole shareholder
By: Philips International Realty Corp.,
its general partner
By:___________________________
Name: Louis J. Petra
Title: President
ASSIGNEES:
____________________________________
PHILIP PILEVSKY
____________________________________
ALLEN PILEVSKY
____________________________________
FRED PILEVSKY
SL FLORIDA LLC,
a Delaware limited liability company
By:_________________________________
Name:
Title: Managing Member
<PAGE>
SCHEDULE A
LEGAL DESCRIPTION OF THE PROPERTY
[See attached]
