EXHIBIT 10.2
TWELFTH AMENDMENT TO AGREEMENT
OF SALE AND PURCHASE
THIS TWELFTH AMENDMENT TO AGREEMENT OF SALE AND PURCHASE (the "Twelfth
Amendment") is made as of this 22 nd day of December, 1998, by and between the
persons and entities that are signatories to this Twelfth Amendment
(collectively, "Seller") and AMERICAN REAL ESTATE INVESTMENT, L.P., a Delaware
limited partnership ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into that certain Agreement of
Sale and Purchase, dated as of August 7, 1998, with respect to certain real
property situated in the State of South Carolina (the "Agreement"); and
WHEREAS, the Agreement was amended by that certain First Amendment,
dated as of September 24, 1998 (the "First Amendment"); and
WHEREAS, the Agreement was further amended by that certain Second
Amendment, dated as of October 1, 1998 (the "Second Amendment"); and
WHEREAS, the proposed Third Amendment to the Agreement was never
executed; and
WHEREAS, the Agreement was further amended by that certain Fourth
Amendment, dated as of October ____, 1998 (the "Fourth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Fifth
Amendment, dated as of October ____, 1998 (the "Fifth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Sixth
Amendment, dated as of October 23, 1998 (the "Sixth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Seventh
Amendment, dated as of October 30, 1998 (the "Seventh Amendment"); and
WHEREAS, the Agreement was further amended by that certain Eighth
Amendment, dated as of November 6, 1998 (the "Eighth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Ninth
Amendment, dated as of November 20, 1998 (the "Ninth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Tenth
Amendment, dated as of December __, 1998 (the "Tenth Amendment"); and
WHEREAS, the Agreement was further amended by that certain Eleventh
Amendment, dated as of December 18, 1998 (the "Eleventh Amendment"); and
WHEREAS, the terms which have a defined meaning in the Agreement, the
First Amendment, the Second Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the
Ninth Amendment, the Tenth Amendment and the Eleventh Amendment shall have the
same meaning when used in this Twelfth Amendment; and
WHEREAS, Seller and Buyer desire to further amend the Agreement in the
following respects.
NOW, THEREFORE, each of Seller and Buyer, intending legally to be
bound hereby, agrees as follows:
1. Section 1(a) of the Agreement is hereby amended and restated to
provide as follows:
(a) REAL PROPERTY. All those certain tracts of land designated on
Schedule 1 hereto known as the Whitehorse Road Industrial Park, Buncombe Road
Industrial Park, Piedmont Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx Xxxx Xxxxxxxxxx Xxxx,
Xxxxx Weve Building, Rocky Creek Business Park, and Xxxxx Xxxxxxx 00 Xxxxxxxxxx
Xxxx (except for the building located at 0000 Xxxxx Xxxxxxx, 00 Xxxxxxxxxx Xxxx,
the "Jotan Real Property"), which are more fully described by metes and bounds
on Exhibit A-1 to Exhibit A-7 hereto (herein collectively called the "Land");
together with all improvements on the Land, including, without limitation, the
26 buildings containing in the aggregate containing approximately 2,000,000
square feet of enclosed floor area and each containing the number of square feet
of enclosed floor area which is designated on Schedule 1 herein; together with
all appurtenances thereto (including, without limitation, all easements, rights
of way, water rights, mineral and timber rights, development rights, privileges,
licenses and other rights and benefits belonging to, running with the owner of,
or in any way relating to the Land); and together with all rights, title and
interest of Seller in and to all land lying in the bed of any street, open or
proposed, abutting the Land, and all right, title and interest of Seller in and
to any unpaid award for the taking by eminent domain of any part of the Land or
for damages to the Land by reason of a change of grade of any street (all of the
property, rights and privileges described in this Section 1(a) herein being
collectively called the "Real Property"). Provided, the condemnation award on
Xxxxxxxx 0 - Xxxxxxxx Xxxx - of approximately Nine Thousand and 00/100 Dollars
($9,000.00) shall remain the property of Seller.
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2. Section 1(d) of the Agreement is hereby inserted as follows:
(d) (i) Buyer shall have the option to purchase the Standing
Springs Industrial Park in accordance with the terms of this Section 1(d),
consisting of five (5) buildings, which are more fully described by metes and
bounds on Exhibit A-9 hereto (herein collectively called the "Standing Springs
Land") containing in the aggregate approximately _____ square feet of enclosed
floor area and containing the number of square feet of enclosed floor area which
is designated on Schedule 1A hereto; together with all appurtenances thereto
(including, without limitation, all easements, rights of way, water rights,
mineral and timber rights, development rights, privileges, licenses and other
rights and benefits belonging to, running with the owner of, or in any way
relating to the Standing Springs Land); and together with all rights, title and
interest of Seller in and to all land lying in the bed of any street, open or
proposed, abutting the Standing Springs Land, and all right, title and interest
of Seller in and to any unpaid award for the taking by eminent domain of any
part of the Standing Springs Land or for damages to the Standing Springs Land by
reason of a change of grade of any street (all of the property, rights and
privileges described in this Section 1(d) herein being collectively called the
"Standing Springs Real Property").
(ii) All fixtures, equipment and other personal property
attached or appurtenant to the Standing Springs Real Property; all furniture,
supplies, and other unattached items of personal property located in or on, or
used in connection with, the Standing Springs Real Property which are not owned
by Tenants (as defined below); and all intangible personal property used in the
ownership, operation or maintenance of the Standing Springs Real Property, which
is not owned by the Tenants; including, without limitation, the items set forth
on Exhibit B-1 hereto (all of the foregoing items of property being herein
collectively called "Standing Springs Personal Property").
(iii) PROPERTY. The Standing Springs Real Property and the
Standing Springs Personal Property are sometimes collectively called the
"Standing Springs Property" or the "Standing Springs Properties"; and the
Standing Springs Real Property and the Standing Springs Personal Property with
respect to each individual property listed on Schedule 1A hereto are sometimes
individually called the "Standing Springs Property". No Standing Springs
Property may be deleted from this sale without mutual consent of the parties.
(iv) For the one (1) year period following the Closing,
Buyer shall have the option to purchase the Standing Springs Property at the
Allocation Amount (as defined in the Agreement), provided that the South
Carolina Department of Health and Environmental Control ("DHEC") has issued a No
Further Action Letter ("NFA") with respect to the Standing Springs Property
within that period. If DHEC fails to issue the NFA within one (1) year following
the Closing, Buyer shall retain the option to purchase the Standing Springs
Property at the Allocation Amount within two (2) years of the date of Closing,
provided DHEC has issued the NFA in that second year. Seller shall utilize its
best efforts to obtain the NFA. Buyer shall cooperate with Seller as reasonably
necessary. If Seller timely obtains the NFA as provided herein and Buyer
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elects to purchase the Standing Springs Property pursuant to the terms herein,
Buyer shall so notify Seller of its intent to exercise its option within the
respective time periods provided herein. Buyer shall thereafter have a thirty
(30) day inspection period; and Buyer shall have the right to elect not to
purchase the Standing Springs Property by giving written notice of such election
to Seller on or prior to the expiration of the thirty (30) day inspection
period. If Buyer elects not to purchase said property or fails to so timely
notify Seller, the option shall expire.
(v) Buyer's option shall survive Closing and delivery of the
deeds. Buyer shall have the right to record a memorandum in form satisfactory to
it in order to memorialize its rights hereunder.
3. Section 1(e) of the Agreement is hereby inserted as follows:
(e) (i) Buyer shall have the option to purchase the Jotan
Property, which is more fully described by metes and bounds on Exhibit A-10
(herein collectively called the "Jotan Land"); together with all improvements on
the Jotan Land, including, without limitation, the building containing in the
aggregate approximately 45,000 square feet of enclosed floor area and containing
the number of square feet of enclosed floor area which is designated on Schedule
1A hereto; together with all appurtenances thereto (including, without
limitation, all easements, rights-of-way, water rights, mineral and timber
rights, development rights, privileges, licenses and other rights and benefits
belonging to, running with the owner of, or in any way relating to the Jotan
Land); and together with all rights, title and interest of Seller in and to all
land lying in the bed of any street, opened or proposed, abutting the Jotan Land
and all right, title and interest of Seller in and to any unpaid award for the
taking by eminent domain of any part of the Jotan Land or for damages to the
Jotan Land by reason of a change of grade of any street (all of the property,
rights and privileges described in this Section 1(e) herein being collectively
called the "Jotan Real Property").
(ii) All fixtures, equipment and other personal property
attached or appurtenant to the Jotan Real Property; all furniture, supplies, and
other unattached items of personal property located in or on, or used in
connection with, the Jotan Real Property which are not owned by Tenants (as
defined below); and all intangible personal property used in the ownership,
operation or maintenance of the Jotan Real Property, which is not owned by the
Tenants; including, without limitation, the items set forth on Exhibit B-2
hereto (all of the foregoing items of property being herein collectively called
"Jotan Personal Property").
(iii) PROPERTY. The Jotan Real Property and the Jotan
Personal Property are sometimes collectively called the "Jotan Property" or the
"Jotan Properties"; and the Jotan Real Property and the Jotan Personal Property
are sometimes individually called the "Jotan Property".
(iv) For the one (1) year period following the Closing,
Buyer shall have the option to purchase the Jotan Property at the Allocation
Amount (as defined in the Agreement). If Buyer elects to purchase the Jotan
Property within said option period, Buyer shall give written
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notice to Seller prior to the expiration of the one (1) year period and Buyer
shall thereafter have a thirty (30) day inspection period. Buyer shall have the
right to elect not to purchase the Jotan Property by giving written notice of
such election to Seller on or prior to the expiration of the thirty (30) day
inspection period. If Buyer elects not to purchase said property or fails to so
timely notify Seller, the option shall expire.
(v) Buyer's option shall survive Closing and delivery of the
deeds. Buyer shall have the right to record a memorandum in form satisfactory to
it in order to memorialize its rights hereunder.
4. Section 2 of the Agreement is hereby amended and restated to
provide as follows:
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for the Property,
subject to adjustments and allocation as provided in this
Agreement, shall be Forty Nine Million Six Hundred Twelve
Thousand Dollars ($49,612,000) and shall be paid as follows:
(i) One Hundred Thousand Dollars ($100,000) (such sum,
plus all interest which accrues thereon, being herein called
the "Deposit") shall be paid by Buyer to Commonwealth Land
Title Insurance Company ("Title Company") on or prior to the
third business day to occur after the date on which the
Inspection Period (as defined below) ends. The Deposit shall
be held by the Title Company in one or more
federally-insured money market accounts acceptable to both
Seller and Buyer, or in short-term United States Government
obligations having a maturity date which is not later than
the Closing Date (as defined below); plus
(ii) Seven Million Five Hundred Thousand Dollars
($7,500,000) of Series B Preferred Units of limited
partnership interest in Buyer (the "Preferred Units") at a
price per Preferred Unit of $25, with such rights,
preferences and designations as are set forth in Schedule I
to the Preferred Unit Recipient Agreement (as defined
below), shall be issued by Buyer to, and in the name of, T.
Xxxxxx Xxxxxxxx (the "Preferred Unit Recipient"), in lieu of
the payment of cash in such amount to Seller, at the
Closing; plus
(iii) The balance of the Purchase Price shall be paid
in cash at Closing by wire transfer of immediately available
funds to the account or accounts designated by Seller.
(b) The Purchase Price shall be allocated among each respective
Property as set forth on Schedule 1 hereto (each of the allocated
amounts set forth on Schedule 1
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being herein called an "Allocation Amount"). Provided, however,
Seller retains the right to change allocations (in reasonable
amounts) by giving written notice of such change to Buyer at
least ten (10) days prior to the Closing Date.
5. Section 13 of the Agreement is hereby amended to include the
following:
(ix) Buyer shall have received a duly executed Preferred Unit
Recipient Agreement and such other documents as may be required
under the Partnership Agreement and the Preferred Unit Recipient
Agreement in connection with the admission of the Preferred Unit
Recipient as an additional limited partner of Buyer.
6. Section 15(a) of the Agreement is hereby amended to include the
following as Item (xiii), and the prior Item (xiii) shall be renumbered as Item
(xiv):
(xiii) A Preferred Unit Recipient Agreement, in substantially the
form of EXHIBIT A attached hereto (the "Preferred Unit Recipient
Agreement"), such Preferred Unit Recipient Agreement to be duly
executed by the Preferred Unit Recipient.
7. Section 15(b) of the Agreement, is hereby amended to include the
following as Items (i) and (ii), and the prior Item (i) shall be deleted and the
prior Items (ii) and (iii) shall be renumbered as Items (iii) and (iv),
respectively:
(i) The portion of the Purchase Price payable in Preferred Units,
which Preferred Units shall be issued in the name of the
Preferred Unit Recipient pursuant to Section 2(a)(ii).
(ii) The portion of the Purchase Price payable in cash to Seller
pursuant to Section 2(a)(iii).
8. Schedule 3 of the Agreement is hereby revised in the form attached
hereto as EXHIBIT B and Schedule 5 of the Agreement is hereby revised in the
form attached hereto as EXHIBIT C.
9. In the event of a conflict between the terms of this Twelfth
Amendment and the terms of the Agreement, the First Amendment, the Second
Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the
Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Tenth
Amendment and/or the Eleventh Amendment with respect to the matters set forth
herein, the terms of this Twelfth Amendment shall control.
10. Except as modified by the terms and provisions of this Twelfth
Amendment, the Agreement, as previously amended, shall remain in full force and
effect in accordance with its terms and provisions.
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IN WITNESS WHEREOF, intending to be legally bound, the parties have executed
this Twelfth Amendment as a sealed instrument as of the day and year first above
written.
Witness/Attest SELLERS:
/S/ XXXXXXXX XXXXXXXX /S/ T. XXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: T. Xxxxxx Xxxxxxxx
/S/ XXXXXXXX XXXXXXXX /S/ XXXXXX XXXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx Xxxxxxxx
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Witness/Attest HOPEWELL PROPERTIES, INC.
/S/ XXXXXXXX XXXXXXXX By:/S/ T. XXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: T. Xxxxxx Xxxxxxxx
Title: President
TTT PARTNERSHIP
/S/ XXXXXXXX XXXXXXXX By: /S/ XXXXX XXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx Xxx Xxxxxxxx
Title: General Partner
STONELEDGE, INC.
/S/ XXXXXXXX XXXXXXXX By: /S/ T. XXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: T. Xxxxxx Xxxxxxxx
Title: President
/S/ XXXXXXXX XXXXXXXX /S/ XXXXXXX XXXXXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx Xxxxxx
/S/ XXXXXXXX XXXXXXXX /S/ XXXXX XXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx Xxxxx Xxxxxx
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Witness/Attest
KIDCO
/S/ XXXXXXXX XXXXXXXX By: /S/ XXXXX XXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx Xxx Xxxxxxxx
Title: Managing Partner
/S/ XXXXXXXX XXXXXXXX /S/ XXXXXX XXXXXX XXXXXXXX, XX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxx Xxxxxxxx, Xx.
/S/ XXXXXXXX XXXXXXXX /S/ XXXXX X. XXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxx
/S/ XXXXXXXX XXXXXXXX /S/ XXXXX XXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx Xxx Xxxxxxxx
BUYER:
AMERICAN REAL ESTATE
INVESTMENT, L.P.
By: American Real Estate Investment
Corporation, its General Partner
By:/S/ XXXXXXX X. BUTTE
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Name: Xxxxxxx X. Butte
Title: Vice President
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