EXHIBIT 10.2
AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
OF PARTNERSHIP INTERESTS IN EASTPOINT PARTNERS, L.P.
This Amendment to Agreement of Purchase and Sale of
Partnership Interests in Eastpoint Partners, L.P., dated as of
October 28, 1997 (this "Amendment"), among Shopco Advisory Corp.,
a New York corporation (together with its permitted successors
and assigns, the "Buyer"), and Eastpoint Mall Limited
Partnership, a Delaware limited partnership ("Eastpoint"), and
Eastern Avenue Inc., a Delaware corporation ("Eastern"; Eastern
and Eastpoint being sometimes referred to herein individually as
a "Seller" and collectively as the "Sellers").
W I T N E S S E T H:
WHEREAS, Buyer and Sellers are parties to that certain
Agreement of Purchase and Sale of Partnership Interests in
Eastpoint Partners, L.P., dated as of July 31, 1997, as amended
by those certain letter agreements among Buyer and Sellers dated
August __, 1997, September 5, 1997, September 11, 1997, September
19, 1997, September 29, 1997, and October 6, 1997, respectively
(collectively, the "Agreement"); and
WHEREAS, Buyer and Sellers desire to amend the Agreement on
the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Amendment, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Amendment, intending
to be legally bound, hereby agree as follows:
SECTION 1. Amendments to Article I. Section 1.01 of the
Agreement is hereby amended as follows:
(a) The following new defined terms are hereby added to
Section 1.01 in the appropriate alphabetical order:
"Defeasance Amount" means the aggregate amount of cash
and/or United States Treasury obligations necessary to
defease the Existing Deed of Trust in full as of the Closing
Date in accordance with the terms and conditions of Section
7.06(b) of the Existing Deed of Trust and the terms and
conditions of the GECAM Agreement.
"First Permitted Prepayment Date" shall have the
meaning set forth in the Existing Deed of Trust.
"GECAM" means GE Capital Asset Management Corporation,
in its capacity as master servicer of the Existing Loan.
"GECAM Agreement" means that certain letter agreement,
dated October 20, 1997, between the Owner Partnership and
GECAM.
"Loan Reserve" shall have the meaning set forth in the
Existing Deed of Trust.
"New Borrower" shall have the meaning and shall conform
to the requirements contained in the GECAM Agreement.
(b) The definition of "Existing Lender" is hereby amended
to read in its entirety as follows:
"Existing Lender" means CBA Conduit, Inc., and its
successors and assigns.
SECTION 2. Amendments to Article II. Article II of the
Agreement is hereby amended as follows:
(a) Section 2.02(a)(iii) is hereby amended in its entirety
as follows:
(iii) on the Closing Date, Buyer shall deliver to
Sellers the Purchase Price;
(A) plus the following amounts:
(w) the amount due to Sellers pursuant to
Section 3.04;
(x) any cash amounts due to Sellers pursuant
to Sections 7.02(b) and 8.01(k);
(y) $97,282.50 in partial payment of the
underwriting fee to be paid by the Owner
Partnership to GECAM pursuant to Step Two,
Paragraph 3 of the GECAM Agreement; and
(z) GECAM's attorneys' fees incurred in
connection with the transaction described in the
GECAM Agreement as required by the Existing Deed
of Trust, including, without limitation,
attorneys' fees incurred in connection with the
rendering of the opinion of counsel from Xxxxxxx &
Xxxxx L.L.P. referred to in Step Two, Paragraph 2
of the GECAM Agreement, and to be paid by the
Owner Partnership pursuant to the GECAM Agreement;
(B) less the following amounts:
(u) $77,350, in payment by Sellers of
certain environmental investigation and
remediations costs relating to the Mall;
(v) $84,630, in payment by Sellers of
certain repairs and replacements performed or to
be performed at the Mall;
(w) the Initial Deposit and the Closing
Deposit previously delivered to Escrow Agent;
(x) 91 percent of any accrued but unpaid
interest and all other amounts payable under the
Existing Loan as of the Closing Date (other than
principal);
(y) 91 percent of one-half of the mortgage
tax, if any, paid by Buyer with respect to the
principal amount of the mortgage(s) placed on the
Mall by Buyer's lenders; and
(z) any credit to which Buyer is entitled
pursuant to Sections 7.02(b), 8.01(i) and 8.01(k).
(b) Section 2.02(b) is hereby deleted.
(c) Section 2.03(c) is hereby deleted.
SECTION 3. Amendments to Article III. Article III of the
Agreement is hereby amended as follows:
(a) Section 3.03(f) is hereby deleted.
(b) Section 3.04 is hereby amended in its entirety as
follows:
3.04 Payment in Respect of Loan Reserve. Buyer and
Sellers acknowledge and agree that, pursuant to the terms of
the GECAM Agreement, in connection with the transfer of the
Substitute Collateral to the New Borrower, the New Borrower
will have the right to receive, or direct the payment of,
the Loan Reserve. In consideration of the transfer to the
New Borrower of such right from the Owner Partnership (prior
to its reconstitution as contemplated under the GECAM
Agreement), Buyer shall pay to Sellers at the Closing an
amount equal to 71.65 percent of the amount in the Loan
Reserve on the Closing Date, provided that in no event shall
such payment exceed $1,015,000.
(c) The following Section is hereby added at the end of
Article III:
3.08 Additional Deliveries of Buyer and Sellers.
(a) At or prior to the Closing, Buyer agrees to cause
the New Borrower to be formed as a single-purpose S-
corporation in all respects in accordance with terms and
conditions of the Existing Deed of Trust and the terms and
conditions of the GECAM Agreement.
(b) At the Closing, Buyer and Sellers shall deliver or
cause to be delivered the following:
(i) Immediately prior to the transfer of the
Interests from Sellers to Buyer, Buyer shall pay the
Defeasance Amount to Sellers, which amount shall be
deemed an additional deposit by Buyer under this
Agreement but shall not be credited against the
Purchase Price.
(ii) Upon receipt of the Defeasance Amount,
Sellers shall pay the Defeasance Amount to the Existing
Lender to defease the Existing Loan in accordance with
Section 7.06(b) of the Existing Deed of Trust and the
GECAM Agreement.
(iii) Sellers shall cause the Owner
Partnership (as the "Existing Borrower" as defined in
the GECAM Agreement) to exercise its right under
Section 2.32(b) of the Existing Deed of Trust to
transfer the Substitute Collateral (as defined in the
GECAM Agreement) to the New Borrower in accordance with
Step Two, Paragraph 1 of the GECAM Agreement, such
transfer to be effected pursuant to an instrument of
transfer reasonably acceptable to Sellers and Buyer.
Sellers and Buyer hereby agree that such transfer shall
be, and such transfer instrument shall provide that
such transfer is, made by Owner Partnership to New
Borrower "AS IS, WHERE IS," without representation or
warranty, express or implied, and without recourse to
Sellers or the Owner Partnership.
(iv) Buyer and Sellers shall, and Buyer shall
cause the New Borrower to, take such actions and to
execute and deliver such documents, as necessary or
appropriate to cause the transactions set forth in the
GECAM Agreement to occur, including, without
limitation, the following:
(A) Buyer shall cause the New Borrower to
deliver to GECAM, and to the Trustee and Co-
Trustee of the Loan and the Certificate Holders of
the Loan (as such terms are defined in the GECAM
Agreement), the indemnity agreement referred to in
Step 2, Paragraph 1 of the GECAM Agreement, in
form reasonably acceptable to New Borrower, and
the Indemnity Collateral (as such term is defined
in the GECAM Agreement), in accordance with the
terms and conditions of the GECAM Agreement; and
(B) Buyer shall cause Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP to deliver to GECAM
the opinions required by Step 2, Paragraphs 1 and
2 of the GECAM Agreement.
(v) Provided that Buyer pays Sellers the amounts
set forth in Section 2.02(a)(iii)(A)(y) and (z),
Sellers shall cause the Owner Partnership to pay GECAM
the underwriting fee of $178,500 pursuant to Step Two,
Paragraph 3 of the GECAM Agreement and GECAM's
attorneys' fees as described in Section
2.02(a)(iii)(A)(z).
SECTION 4. Amendment to Article VII. Article VII of the
Agreement is hereby amended by deleting the first sentence of
Section 7.05 thereof and substituting in lieu thereof the
following:
Promptly after the execution and delivery by Buyer and
Sellers of the Amendment, Eastern shall direct the Manager
to request estoppel certificates (the "Estoppel
Certificates") from all tenants of the Mall, in each case in
the form approved by Buyer's mortgage lender.
SECTION 5. Amendments to Article VIII. Article VIII of the
Agreement is hereby amended as follows:
(a) Section 8.01(l) is hereby amended in its entirety as
follows:
(l) At Closing, Buyer and Sellers shall have
received a statement from the Existing Lender
confirming the outstanding principal balance of the
Existing Loan and the amount in the Loan Reserve on the
Closing Date.
(b) The following section is hereby added at the end of
Section 8.01:
(p) As of the Closing Date, all of the
transactions described in the GECAM Agreement shall
have occurred.
(c) The following section is hereby added at the end of
Section 8.02:
(l) As of the Closing Date, all of the
transactions described in the GECAM Agreement shall
have occurred.
SECTION 6. Amendments to Article IX. Article IX of the
Agreement is hereby amended as follows:
(a) Section 9.02 is hereby amended to add the
following at the end of the first sentence thereof:
(v) any claim of the Existing Lender or GECAM
against Buyer pursuant to clause (iv) of the
second paragraph on page 7 of that certain Amended
and Restated Promissory Note, dated as of December
1, 1993, among the Owner Partnership and the
Existing Lender and/or Section 7.16(iv) of the
Existing Deed of Trust, to the extent such losses,
claims, damages, liabilities or expenses arise out
of or are based upon events that occurred prior to
the Closing. The indemnification obligation set
forth in clause (v) of the immediately preceding
sentence shall also extend to the Owner
Partnership and the New Borrower, as indemnitees.
(b) Section 9.03 is hereby amended to add the
following clause at the end thereof:
(vi) any claim of the Existing Lender or GECAM
against such Seller pursuant to clause (iv) of the
second paragraph on page 7 of that certain Amended
and Restated Promissory Note, dated as of December
1, 1993, among the Owner Partnership and the
Existing Lender and/or Section 7.16 of the
Existing Deed of Trust, to the extent such losses,
claims, damages, liabilities or expenses arise out
of or are based upon events that occur on or after
the Closing.
SECTION 7. Amendment to Article X. Section 10.01 of the
Agreement is hereby amended by adding the following sentence
after the third sentence thereof:
Notwithstanding anything to the contrary set forth in this
Agreement, in no event shall Buyer be entitled to a return
of the Initial Deposit or the Closing Deposit if this
Agreement is terminated because the condition set forth in
Section 8.02(l) is not satisfied solely as a result of a
default by Buyer under, or breach by Buyer of, a
representation, warranty or covenant of this Agreement;
provided, however, that if the condition set forth in
Section 8.02(l) is not satisfied for any other reason, Buyer
shall be entitled to receive one-half of the Initial Deposit
and one-half of the Closing Deposit, together with one-half
of the interest earned thereon, if any, and Sellers shall be
entitled to receive the remainder of the Initial Deposit and
the Closing Deposit and the remainder of any interest
thereon.
SECTION 8. Amendment to Article XI. Section 11.02 is
hereby amended by adding the following subsections at the end
thereof:
(g) Notwithstanding anything to the contrary set forth
in this Agreement, including, without limitation, Section
11.02(b), in satisfaction of the Sellers' rights to receive
Percentage Rents after the Closing pursuant to Section
11.02, the Buyer shall cause the Owner Partnership to pay to
the Sellers the following amounts:
(i) 91 percent of the Percentage Rents as and
when received by the Owner Partnership from Sears and
Value City with respect to Sears' and Value City's
respective fiscal years, for purposes of Percentage
Rents, expiring in 1997; and
(ii) 91 percent of any other Percentage Rents
allocable to the period through and including the
Closing Date, as and when received by the Owner
Partnership during the six month period after the
Closing Date or, if earlier, until such date as Eastern
and Eastpoint shall have dissolved; provided, however,
that in no event shall the amount paid by the Owner
Partnership under this clause (ii) exceed $100,000 in
the aggregate.
(h) Buyer shall cause the Owner Partnership to make
reasonable efforts in the ordinary course to collect the
amounts set forth under Section 11.02(g) above promptly
after such amounts become due and payable from the
respective tenants; provided, however, this sentence shall
not obligate Buyer to cause the Owner Partnership to
commence litigation against any such tenant.
SECTION 9. Certain Acknowledgments of Buyer and Sellers.
(a) Buyer hereby acknowledges and agrees that the
conditions set forth in Section 4.05 have been fulfilled and
Buyer hereby waives its right to terminate the Agreement as a
result of any such matter.
(b) Sellers hereby acknowledge and agree that the condition
set forth in Section 8.02(k) has been fulfilled and Sellers
hereby waive the right to terminate the Agreement as a result of
such matter.
SECTION 10. Miscellaneous.
(a) Defined Terms. Capitalized terms used herein without
definition shall have the meaning ascribed to them in the
Agreement.
(b) Reference to and Effect on the Agreement. On and after
the date hereof, each reference in the Agreement to "this
Agreement", "hereunder", "herein", "hereto", "hereof", or words
of like import shall mean and be a reference to the Agreement, as
amended by this Amendment. Except as specifically amended above,
all of the terms of the Agreement shall remain unchanged and in
full force and effect.
(c) Governing Law. This Amendment shall be governed by,
and construed and interpreted in accordance with, the laws of the
State of New York.
(d) Counterparts; Effectiveness. This Amendment may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
(e) Entire Agreement. This Amendment constitutes the
entire agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes all prior
agreements, understandings and negotiations, both written and
oral, between the parties with respect to the subject matter of
this Amendment, including but not limited to that certain letter
agreement between the Sellers and the Buyer, dated October 15,
1997.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
SHOPCO ADVISORY CORP.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Chairman
EASTPOINT MALL LIMITED
PARTNERSHIP
By: EASTERN AVENUE INC.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
EASTERN AVENUE INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
