SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Second Amendment”) is
made as of the 15th day of April, 2005, by and between CAPLEASE, LP
("Purchaser”) and ALISO COMMONS AT TOWN CENTER, LLC
(“Seller”).
BACKGROUND
A. Seller
and Purchaser have entered into a certain
Purchase
and Sale Agreement, dated as of March 1, 2005 (the
“Agreement”), as amended by the First Amendment to Purchase and Sale Agreement
dated March 24, 2005.
B. The
Seller and Purchaser desire to amend the Agreement as set forth
below.
C. Capitalized
terms used herein but not defined herein shall have the meaning ascribed to
such
terms in the Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
1. The
following is added as the second sentence to Section 2(a) of the
Agreement:
Prior
to
the Closing, Seller will obtain a loan in the approximate amount of $42,000,000
from Caplease, LP (the "CLF
Loan").
On
the Closing Date, Purchaser will assume the CLF Loan and receive a credit
against the Purchase Price for the outstanding principal balance of the CLF
Loan
plus accrued interest and all other obligations then due and owing under the
CLF
Loan as of the Closing Date.
2. Section
2(b) is hereby deleted in its entirety and replaced with the
following:
(a) Within
one (1) business day of the date of the Second Amendment, Purchaser shall
deposit with Fidelity National Title Insurance Company (the "Escrow
Agent")
the
sum of Five Hundred Thousand Dollars ($500,000) (the "Deposit")
to be
held as an xxxxxxx money deposit as provided in Section 2(c) below.
2. The
first
sentence of paragraph 1 of Section 7.1(f) is hereby deleted in its entirety
and
replaced with the following:
(f) Estoppel
Certificates.
Seller,
at its sole cost and expense, shall have obtained and delivered to Purchaser,
no
later than five (5) business days prior to the Date of Closing, an original
tenant estoppel certificate (dated no earlier than 10 days prior to the Date
of
Closing) executed by Lowe's and an original guarantor estoppel certificate
(dated no earlier than 10 days prior to the Date of Closing) executed by
Guarantor, substantially in the forms attached hereto as Exhibits F-1 and G,
respectively, with such proposed modifications or additions requested by
Purchaser in accordance with Section 5.1(a) hereof. Seller, at its sole cost
and
expense, shall have obtained and delivered to Purchaser, no later than five
(5)
business days prior to the Date of Closing, an original tenant estoppel
certificate (dated no earlier than 10 days prior to the Date of Closing)
executed by Lowe's and an original guarantor estoppel certificate (dated no
earlier than 10 days prior to the Date of Closing) executed by Guarantor,
substantially in the forms attached hereto as Exhibits F-1 and G, respectively,
with such proposed modifications or additions as may be reasonably requested
by
Purchaser.
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3. The
first
sentence of paragraph 2 of Section 7.1(f) is hereby deleted in its entirety
and
replaced with the following:
Seller,
at its sole cost and expense, shall have obtained and delivered to Purchaser,
no
later than five (5) business days prior to the Date of Closing, an original
tenant estoppel certificate (dated no earlier than 10 days prior to the Date
of
Closing) executed by Michaels Stores substantially in the form attached hereto
as Exhibits F-2, with such proposed modifications or additions as may be
reasonably requested by Purchaser.
4. Exhibit
F
of the Agreement is hereby deleted in its entirety and replaced with Exhibits
F-1 and F-2 attached hereto and incorporated herein by reference.
5. The
following paragraph is added as paragraph (h) to Section 7.1 of the
Agreement:
(h) Declaration
of Covenants.
Seller
and Purchaser shall use good faith efforts to negotiate a declaration of
covenants (the "Declaration")
which
shall be binding upon the Property, the adjacent property known as Parcel 2
of
Lot Line Adjustment No. LLA 04-01, recorded September 16, 2004, as Instrument
No. 04-000835582 ("Parcel
2")
and
currently owned by Aliso Commons Corner, LLC ("Aliso
I"),
and
the adjacent property known as Xxx 0 xx Xxxxx 00000 ("Lot
2")
and
currently owned by Xxxxx LLC and Xxxxx Xxxxxxxxx XX and Xxxxxxx Xxxxxxxxx,
husband and wife ("Xxxxx
and Xxxxxxxxx").
The
Declaration shall be on terms and conditions which are acceptable to Purchaser,
in Purchaser's reasonable discretion, shall be fully executed by Seller, Aliso
I
and Xxxxx and Xxxxxxxxx prior to the Closing Date and shall be delivered to
the
Escrow Agent on the Closing Date for recordation. It will be reasonable for
Purchaser to withhold its consent to the Declaration unless the Declaration
provides that (i) Aliso I will be responsible for any assessments relating
to
the Property that are not paid by any tenant of the Property, and (ii) Parcel
2
and Lot 2 shall be bound by the covenants contained in any lease of the Property
existing as of the Closing Date regarding the use of the Shopping Center and
the
Common Areas (as such terms are defined in the Lowe's Lease).
6. The
following provisions are hereby added to the Agreement as Section
13:
13. ESCROW
PROVISIONS
The
Deposit and any other sums (including, without limitation, any interest earned
thereon) which the parties agree shall be held in escrow (herein collectively
called the “Escrow
Deposits”),
shall
be held by the Escrow Agent, in trust, and disposed of only in accordance with
the following provisions:
(a) The
Escrow Agent shall invest the Escrow Deposits in government insured
interest-bearing instruments reasonably satisfactory to Purchaser, shall not
commingle the Escrow Deposits with any funds of the Escrow Agent or others,
and
shall promptly provide Purchaser with confirmation of the investments made.
Any
interest earned on the Deposit shall be considered a part of the
Deposit.
(b) If
the
Closing occurs, the Escrow Agent shall deliver the Escrow Deposits to, or upon
the instructions of, Seller on the Closing Date.
(c) If
for
any reason the Closing does not occur, the Escrow Agent shall deliver the Escrow
Deposits to Seller or Purchaser only upon receipt of a written demand therefor
from such party, subject to the following provisions of this Subsection
(c).
If for
any reason the Closing does not occur and either party makes a written demand
upon the Escrow Agent for payment of the Escrow Deposits, the Escrow Agent
shall
give written notice to the other party of such demand. If the Escrow Agent
does
not receive a written objection from the other party to the proposed payment
within ten (10) days after the giving of such notice, the Escrow Agent is hereby
authorized to make such payment. If the Escrow Agent does receive such written
objection within such period, the Escrow Agent shall continue to hold such
amount until otherwise directed by written instructions signed by Seller and
Purchaser or a final judgment of a court.
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(d) The
parties acknowledge that the Escrow Agent is acting solely as a stakeholder
at
their request and for their convenience, that the Escrow Agent shall not be
deemed to be the agent of either of the parties, and that the Escrow Agent
shall
not be liable to either of the parties for any action or omission on its part
taken or made in good faith, and not in disregard of this Agreement, but shall
be liable for its negligent acts and for any liabilities (including reasonable
attorneys’ fees, expenses and disbursements) incurred by Seller or Purchaser
resulting from the Escrow Agent’s mistake of law respecting the Escrow Agent’s
scope or nature of its duties. Seller and Purchaser shall jointly and severally
indemnify and hold the Escrow Agent harmless from and against all liabilities
(including reasonable attorneys’ fees, expenses and disbursements) incurred in
connection with the performance of the Escrow Agent’s duties hereunder, except
with respect to actions or omissions taken or made by the Escrow Agent in bad
faith, in disregard of this Agreement or involving negligence on the part of
the
Escrow Agent.
(e) The
Escrow Agent has executed this Agreement in the place indicated on the signature
page hereof in order to confirm that the Escrow Agent has received and shall
hold the Escrow Deposits in escrow, and shall disburse the Escrow Deposits
pursuant to the provisions of this Section 13.
7. The
signature block of the Escrow Agent is hereby deleted in its entirety and
replaced by the following:
FIDELITY
NATIONAL TITLE INSURANCE COMPANY
By:____________________________
Name:
Title:
8. Except
as
specifically amended by the foregoing, all of the terms, conditions, covenants
and agreements in the Agreement shall remain unaltered and of full force and
effect. In the event of any conflict or inconsistency between the terms and
provisions set forth in the Agreement and the terms and provisions set forth
in
this Amendment, the terms and provisions set forth herein shall
control.
9. This
Amendment shall be governed and construed according to the laws of the State
of
New York. This Amendment shall inure to the benefit of, and be binding upon,
the
parties hereto and their respective successors and assigns.
10. This
Amendment may be executed in one or more counterparts, each of which shall
be
deemed to be an original as to any party whose signature appears thereon, and
all of which when taken together shall constitute one and the same instrument.
The parties agree to accept and rely on facsimile copies of signatures on this
Amendment as originals.
[Signatures
on Next Page]
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year
first above written.
ALISO
COMMONS AT TOWN CENTER, LLC, a
California limited liability company
By:
Centrium Associates, LLC, a California limited liability company, its
Member
By:
/s/
Xxxxxxxxxxx Xxxxxx Zahoudanis
Name:
Xxxxxxxxxxx Xxxxxx Zahoudanis
Title:
Manager
By:
Parks
Diversified, L.P., a California limited partnership
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
General Partner
CAPLEASE,
LP,
a
Delaware limited partnership
By:
CLF
OP
General Partner, LLC, a Delaware limited liability company, its general
partner
By:
Capital
Lease Funding, Inc., a Maryland corporation, its sole member
By:
/s/
Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Senior Vice President
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