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EXHIBIT 2.5
FOURTH AMENDMENT TO CONTRACT OF SALE
THIS FOURTH AMENDMENT TO CONTRACT OF SALE (this "Amendment"), made as of
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this 31/st/ day of August, 2000, between CT OPERATING PARTNERSHIP, L.P., CT
RETAIL PROPERTIES FINANCE IV, LLC, CT RETAIL PROPERTIES FINANCE I, LLC AND
CENTER TRUST RETAIL PROPERTIES FINANCE III, LLC (collectively, "Sellers"), and
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KIMCO REALTY CORPORATION ("Buyer").
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W I T N E S S E T H:
A. Sellers and Buyer entered into an Agreement for Purchase and Sale,
dated as of July 12, 2000, as amended by that certain Amendment to Contract of
Sale, dated August 10, 2000 and Second Amendment to Contract of Sale, dated as
of August 25, 2000 and Third Amendment to Contract of Sale, dated as of August
29, 2000 (collectively, the "Original Contract of Sale"), covering the sale of a
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portfolio of six shopping center properties more particularly described in the
Original Contract of Sale (each, a "Property" and collectively, the
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"Properties"). Capitalized terms used but not otherwise defined herein shall
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have the meanings set forth in the Original Contract of Sale;
B. As a result of certain environmental conditions at the Properties
commonly known as Montebello Town Square located in Montebello, California (the
"Montebello Property") and Vista Balboa located in San Diego, California (the
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"Vista Balboa Property") and certain physical conditions at all the Properties,
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Sellers and Buyer wish to amend the Original Contract of Sale on the terms and
conditions hereinafter set forth; and
C. Buyer and Sellers wish to confirm that the Due Diligence Period has
expired and Buyer has completed its inspection and diligence of the Properties
and except as otherwise provided herein, Buyer has forgone its right to
terminate under Section 2.4 of the Original Contract of Sale and is obligated to
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close the acquisition of all Properties, which closing is anticipated to occur
on or about September 15, 2000, subject only to the satisfaction or waiver of
all conditions to Closing set forth in the Original Contract of Sale, as amended
hereby.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, it is agreed as follows:
1. The foregoing recitals are hereby acknowledged as true and correct and
incorporated in this Amendment.
2. The definition of "REA" set forth in Article 1 of the Original
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Contract of Sale is hereby deleted in its entirety and replaced with the
following:
""REA" shall mean, with respect to each of the Properties, those
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certain easement, operating and/or covenant agreements or declarations, as set
forth on the title policies or commitments listed on Schedule 4.1(l) attached
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hereto, or any written updates thereto which have been given to Sellers."
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3. (a) The first sentence of Section 2.2 of the Original Contract of
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Sale is hereby deleted in its entirety and replaced with the following:
"The aggregate purchase price for the Properties (the "Purchase
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Price") shall be One Hundred Fifty-Nine Million Six Hundred and Ten
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Thousand Dollars (U.S. $159,610,000.00), subject to adjustment in
accordance with Sections 3.2 and 6.3 below."
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(b) The parties hereto acknowledge and agree that any termination of
the Tutor Time Lease (hereafter defined) shall not result in any reduction in
the Purchase Price.
4. (a) Section 3.1(a)(iv) of the Original Contract of Sale is hereby
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deleted in its entirety and replaced with the following: "Intentionally
Omitted."
(b) Section 3.1(a)(vi) of the Original Contract of Sale is hereby
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deleted in its entirety and replaced with the following:
"(vi) Sellers' delivery to Buyer of (A) with respect to the
Ground Lease, an estoppel and consent from the ground lessor and (B) with
respect to each party to an REA and from American Multi Cinema, Inc.
regarding its lease of certain property covered by the REA affecting the
Covina Property (the "AMC Lease"), an estoppel certificate, in each case,
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in form and substance reasonably satisfactory to Buyer, dated not more than
thirty (30) days prior to the anticipated Closing; provided, however, that
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the failure to deliver such estoppels and/or consents prior to the Closing
Date shall not be a failure of a closing condition if: (i) Sellers cause
the Title Company to issue the Title Policies including, without exception,
for the Covina Property (together with any affirmative insurance
endorsement(s) reasonably requested by Buyer as a result of Sellers'
failure to obtain the consent of the ground lessor under the Ground Lease
to the assignment and assumption of the Ground Lease by the Closing Date),
and covenants to use good faith efforts to obtain such estoppels and/or
consent post-closing as promptly as reasonably possible; and (ii) with
respect to any missing estoppels and/or consent for an REA party, the AMC
Lease or the Ground Lease, as applicable, Seller provides an estoppel from
Seller in form and substance reasonably satisfactory to Buyer."
5. Exhibit B to the Original Contract of Sale is hereby deleted in its
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entirety and replaced with Exhibit A attached hereto.
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6. Notwithstanding anything to the contrary contained in the Original
Contract of Sale, Buyer's obligation to purchase the Properties shall be subject
to and contingent upon the satisfaction (or waiver by Buyer) of the following
conditions precedent in accordance with the terms hereinafter set forth:
(a) Sellers shall, at Sellers' sole cost and expense (except for the
first twenty thousand dollars of the premium which shall be paid by Buyer),
deliver to Buyer (and Buyer shall reasonably cooperate with Sellers to assure
delivery) at Closing, from Kemper Environmental, Inc., an environmental
insurance policy covering the Montebello Property for all pre-existing
conditions, including all matters related to the methane gas and OII Superfund
site, with a term of not less than ten (10) years following the date of Closing
(which term may be made up of an initial term of five (5) years with an
automatic extension option for five (5)
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additional years subject to the payment of a renewal premium to be paid solely
by Buyer) and a retention amount of not more than twenty-five thousand dollars
($25,000), and specifically provides that any lender of Buyer may be added as an
additional insured at no additional cost, and otherwise in a form, and with
coverage substantially identical to Sellers' blanket environmental insurance
policy with Kemper Environmental, Inc., dated December 14, 1999 (Policy Number
4TG000022), a copy of which has been provided to Buyer prior to the date hereof;
and
(b) On or prior to the Closing Date, Sellers shall take one of the
following actions, at Sellers' sole option and cost: (i) provide either (x) a
written determination from the Department of Toxic Substances Control or other
evidence reasonably satisfactory to Buyer that the Montebello Property is
currently not designated as a border zone property as defined under (S)25220 et.
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seq. of the California Health and Safety Code after disclosure to DTSC that a
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day care center/child care facility is located within 2,000 feet of the OII
Superfund site, or (y) a variance issued by the Department of Toxic Substances
Control as contemplated by (S)25232 et. seq. of the California Health and Safety
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Code; or (ii) terminate that certain Lease Agreement, dated as of January 26,
1995, between Center Trust, as lessor and Lifecare Acquisitions of California,
Inc., as lessee (together with all modifications or supplements thereto, the
"Tutor Time Lease"), with the lessee thereunder having vacated and surrendered
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the premises to Center Trust free and clear of all of such tenant's personal
property, furniture, fixtures and equipment. Notwithstanding the foregoing, in
the event that Sellers have provided written notice to Buyer prior to the
Closing Date of its exercise of the option described in clause "(ii)" of the
preceding sentence (the "Tutor Time Lease Termination Option") and Sellers have
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been unable to completely satisfy the conditions set forth in such clause "(ii)"
by the Closing Date after good faith diligent efforts by Sellers, the parties
hereto agree that the closing of the Montebello Property shall be deferred for a
reasonable period of time after the Closing Date (up to a maximum of ninety (90)
days) and the parties shall be bound to consummate the purchase and sale of the
balance of the Properties in accordance with the terms of the Original Contract
of Sale (as amended by this Amendment). In the event that the closing of the
Montebello Property is deferred as provided in the preceding sentence, the
Purchase Price paid on the Closing Date for the remaining Properties shall be
reduced by an amount equal to the Allocated Purchase Price for the Montebello
Property as set forth on Exhibit A attached. The parties hereto acknowledge and
agree that the conditions precedent described in this Section 6 pertaining to
the Montebello Property shall not constitute an "Intervening Matter" under the
Original Contract of Sale, as amended by this Amendment and in no event shall
the failure to satisfy such conditions be considered a default of either party
but shall only affect the Closing as a failure of a condition to Closing of the
Montebello Property. Nothing contained herein shall be construed as a waiver of
Buyer's rights under 3.2(d) in the event an Intervening Matter does exist on the
Montebello Property.
7. (a) The parties hereto acknowledge and agree that in connection with
certain soil and groundwater contamination at the Vista Balboa Property, Sellers
are currently in the process of preparing a remediation action plan (the
"Remediation Plan") for submission to the applicable governmental authority or
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agency having jurisdiction over such contamination (the "Agency"). Sellers
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agree to use good faith commercially reasonable efforts to design a Remediation
Plan that minimizes any disruption or interference with the shopping center
operations at the Vista Balboa Property. On the Closing Date, Sellers and Buyer
shall enter into an escrow arrangement with Chicago Title Insurance Company (the
"Escrow Agent") pursuant to which the Escrow Agent shall withhold (the "Holdback
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Fund") from the amounts to be distributed to Sellers on the
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Closing Date, the amount of Seven Hundred Fifty Thousand Dollars ($750,000)(the
"Holdback Amount") to be held in escrow and disbursed in
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accordance with the terms of this Section 7 and a separate escrow agreement to
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be entered into among Sellers, Buyer and
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Escrow Agent.
(b) On the Closing Date, Sellers and Buyer shall each designate an
environmental consultant (each, an "Environmental Consultant") to assist it in
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connection with the Remediation Plan. Sellers and Buyer agree to cooperate in
good faith after consultation with one another to negotiate and obtain the
Agency's approval of the Remediation Plan, provided, that, Sellers shall, at all
times, be the lead negotiator and liaison with the Agency and Buyer shall not be
permitted to deal directly with such Agency without the presence of a
representative of Sellers and/or their consultants, and provided, further, that,
Sellers shall keep Buyer informed of all actions in the development of the
Remediation Plan and shall provide, or cause to be provided, to Buyer, copies of
all reports and data generated in connection therewith. Sellers agree to use
good faith efforts to mitigate the amount of such costs and expenses. Nothing
contained in this paragraph shall be deemed to prevent Buyer from responding
(after consultation with Sellers) to inquiries or written requests made by the
Agency that were uninitiated by Buyer regarding factual issues related to the
Vista Balboa Property, provided, that, Sellers have been given an opportunity to
participate in any meetings or other proceedings with the Agency and receives a
written copy of all such inquiries or requests. Upon the approval of the
Remediation Plan by the Agency, Sellers and Buyer shall use good faith efforts
within ten (10) business days after such approval to (i) mutually agree upon the
environmental contractor responsible for implementing such approved Remediation
Plan (the "Cleanup Contractor"), provided, that, in the event that the parties
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are unable to agree on such Cleanup Contractor, Sellers' selection of the
Cleanup Contractor, subject to the Agency's approval, if required, shall
control; and (ii) cause their applicable Environmental Consultant to agree,
after consultation with one another and the Cleanup Contractor, on the estimated
costs for implementing and completing such Remediation Plan, including, all
costs and expenses related to the purchasing and installation of the remediation
system, long-term monitoring, legal and consulting fees and all other expenses
necessary to obtain a "no-further action" letter or similar certification from
the Agency (collectively, the "Estimated Remediation Costs"). Within five (5)
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business days after the Remediation Plan has been approved by the Agency and the
remediation system required by the Agency has been installed and is certified by
the Agency to be working properly, the Escrow Agent shall release to Sellers
from the Holdback Fund, an amount equal to (x) the costs of purchasing and
installing the remediation system plus (y) the difference between (1) the
Holdback Amount (plus any interest earned thereon) after deducting therefrom any
amounts released pursuant to the preceding clause "(x)"; and (2) one hundred
twenty-five percent (125%) of the Estimated Remediation Costs remaining after
deduction for the amounts covered in the preceding clause "(x)". Upon the
release of such funds to Sellers, Buyer shall become the lead negotiator and
liaison with the Agency in its efforts to obtain a "no further action" letter or
similar certification. Any funds remaining in the Holdback Fund after such
distribution shall be held in escrow by the Escrow Agent and used to pay for the
costs of implementing and completing the Remediation Plan. Sellers and Buyer
agree to cooperate in good faith with one another in connection with the
implementation and completion of the Remediation Plan by the Cleanup Contractor.
(c) Upon the completion of all work set forth in the Remediation Plan
and the receipt of a "no further action" letter or other similar certification
(the "Completion Letter") from the Agency that no further corrective action is
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required (including, no further monitoring or reporting obligations), the
balance of the funds remaining in the Holdback Fund, if any, shall be
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released to Sellers. In the event that the amounts remaining in the Holdback
Fund are insufficient to pay for all costs and expenses actually incurred in
implementing and completing the Remediation Plan and obtaining the Completion
Letter, Sellers shall be responsible for the payment of all such additional
costs and Sellers agree to indemnify, defend, and hold Buyer harmless from any
and all claims, liabilities, and damages with respect to such costs and the
Remediation Plan to the extent that such additional costs do not arise from any
of Buyer's or its assignee's, agent's, contractor's, licensee's or tenant's
negligent actions or violations of the terms of this Amendment and provided,
that, Seller's obligation with respect to such indemnity and costs shall not
exceed $1,000,000 in the aggregate (inclusive of the Estimated Remediation
Costs), and provided, further, that Buyer shall use good faith efforts to
mitigate the amount of such costs and expenses and obtain Seller's reasonable
approval prior to the payment thereof. Buyer expressly acknowledges and agrees
that the indemnity contained in the preceding sentence and the Escrow Agreement
and the Holdback Fund may be assigned by Buyer to any other person or entity
(including its lender or any affiliate of Buyer) without the prior written
consent of Sellers provided, that, such assignee, assumes all of Buyer's
obligations under this Amendment and agrees to be bound by the terms hereof and
provided, further, that in the event of any transfer or assignment to any third
party or any person or entity which is not controlled, directly or indirectly,
by Buyer or Kimco Income Operating Partnership, L.P., (a "Third Party
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Transferee"), notwithstanding anything to the contrary contained in Section 7(b)
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above, Sellers shall be the lead negotiator and liaison with the Agency, and
such Third Party Transferee shall not be permitted to deal directly with the
Agency without the presence of a representative of Sellers and/or their
consultants and Sellers shall control the completion of the Remediation Plan and
the issuance of the Completion Letter so long as Sellers use good faith efforts
to keep the Third Party Transferee reasonably informed of all developments in
connection therewith.
(d) The obligations of the parties contained in this Section 7 shall
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survive the Closing for a period of three (3) months after the Completion Letter
is issued by the Agency.
8. The parties hereto acknowledge and agree that (a) the Original
Contract of Sale, as hereby amended, is in full force and effect in accordance
with its terms and has not been supplemented, modified or otherwise amended,
except pursuant to this Amendment; (b) except as otherwise expressly set forth
herein, this Amendment shall not operate as a waiver of any rights or remedies
of either Sellers or Buyer under the Original Contract of Sale; and (c) the
Original Contract of Sale, as amended hereby, is binding and enforceable against
each of the parties hereto in accordance with its terms. All references to the
"Agreement for Purchase and Sale of Center Trust, Inc, Selected Portfolio" or
any other similar reference to the Original Contract of Sale in the Original
Contract of Sale and any Closing documents shall mean and refer to the Original
Contract of Sale as modified and amended hereby.
9. In the event of any conflict or inconsistency between the terms and
provisions of this Amendment and the terms and provisions of the Original
Contract of Sale, the terms and provisions of this Amendment shall govern and
control.
10. This Amendment may be executed in any number of counterparts (and by
facsimile), each of which when executed shall be deemed an original (including,
any counterparts transmitted by facsimile), and when executed and delivered by
all the parties listed below, shall constitute a single binding agreement.
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11. This Amendment shall be governed by and construed in accordance with
the laws of the State of California, without reference to its conflict of laws
principles.
IN WITNESS WHEREOF, the parties have executed this instrument as of the
date above set forth.
"SELLERS"
CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC., a Maryland
corporation, its general partner
By:
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Name:
Title:
CT RETAIL PROPERTIES FINANCE I, LLC,
a Delaware limited liability company
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC., a Maryland
corporation, its general partner
By:
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Name:
Title:
CENTER TRUST RETAIL PROPERTIES FINANCE III,
LLC, a Delaware limited liability company
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC., a Maryland
corporation, its general partner
By:
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Name:
Title:
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CT RETAIL PROPERTIES FINANCE IV, LLC,
a Delaware limited liability company
By: CT OPERATING PARTNERSHIP, L.P., a
California limited partnership
By: CENTER TRUST, INC., a Maryland
corporation, its general partner
By:
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Name:
Title:
"BUYER"
KIMCO REALTY CORPORATION, a Maryland
corporation
By:
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Name:
Title:
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