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EXHIBIT 10(a)
FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Fifth Amendment"),
is dated as of May 29, 1998, and is entered into by and among between THE
NEWHALL LAND AND FARMING COMPANY (A California limited partnership) ("Seller"),
and XXXXXX X. XXXXXXXX ("Purchaser") and Valencia Marketplace I LLC, a limited
liability company ("VMI"), and Valencia Marketplace II LLC, a limited
liability company ("VMII"), with reference and respect to the following facts
and circumstances:
A. Seller and Purchaser made and entered into that certain Purchase and
Sale Agreement dated as of January 7, 1998 (the "Original Agreement"), as
amended by the First Amendment to Purchase and Sale Agreement dated as of
February 17, 1998, as further amended by the Second Amendment to Purchase and
Sale Agreement dated as of February 27, 1998, as further amended by the Third
Amendment to Purchase and Sale Agreement dated as of March 9, 1998, and as
further amended by the Fourth Amendment to Purchase and Sale Agreement dated as
of March 12, 1998, (collectively, the "Agreement"), with respect to those
certain parcels of real property located in the County of Los Angeles, State of
California and more particularly described in the Agreement (the "Property")
and commonly referred to as Valencia Marketplace.
B. The parties desire to amend, modify and change the Agreement as
provided in this Fifth Amendment.
NOW, THEREFORE, in consideration of the promises, covenants, and
agreements, set forth in this Fifth Amendment and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS. Defined terms are indicated in this Fifth Amendment by
initial capital letters. Except as specifically provided otherwise in this
Fifth Amendment, defined terms shall have the same meaning in this Fifth
Amendment as they do in the Agreement.
2. BIFURCATED ESCROW. The parties hereby agree that the purchase and
sale of the Power/Promotional Center and the Community Center/Triangle shall be
completed through the concurrent Closing of two separate escrows. The
Power/Promotional Center Purchase Price shall be $71,000,000.00 (64.11% of the
total Purchase Price for the entire Property). The Community Center/Triangle
Purchase Price shall be $39,750,000.00 (35.89% of the Purchase Price for the
entire Property). The Deposit plus all accrued interest thereon shall be
credited to the Power/Promotional Center Purchase Price at the Closing. Unless
otherwise instructed by the parties, Escrow Holder shall calculate all fees and
prorations for each Closing separately. Purchaser shall pay for any and all
fees, costs, expenses or exactions of any kind whatsoever arising from the
foregoing bifurcation of the Escrow.
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3. CONSTRUCTION LETTERS OF CREDIT. Purchaser and Seller hereby agree
that Seller shall deliver to Escrow Holder one (1) business day prior to the
Closing Date, letters of credit in the amount equal to the total of the
"Undisbursed Balance of the Construction Budget" columns in the Pro-Formas for
the Power/Promotional Center and Community Center/Triangle attached hereto as
Exhibits "A-1" and "A-2" and incorporated herein by this reference to secure
Seller's obligation to complete construction of the improvements on the
Property. Seller and VMI shall execute the "Construction Holdback Letter of
Credit Agreement" for the Power/Promotional Center in the form of Exhibit "B-1"
and deliver it to Escrow Holder one (1) business day prior to the Closing Date.
Seller and VMII shall execute the Construction Holdback Letter of Credit
Agreement for the Community Center/Triangle in the form of Exhibit "B-2" and
deliver it to Escrow Holder one (1) business day prior to the Closing Date.
Exhibits "B-1" and "B-2" are attached hereto and incorporated by reference
herein. Escrow Holder shall not withhold any funds due Seller from the Purchase
Price to secure Seller's obligation to complete any Space on the Property.
4. 1031 TAX-DEFERRED EXCHANGE. Purchaser has elected to have the
Community Center/Triangle Closing be part of an Internal Revenue Code Section
1031 exchange transaction (the "Exchange"). Pursuant to Section 19(p) of the
Original Agreement, Seller and Purchaser shall cooperate in good faith to
consummate the Exchange; provided, however, (1) Seller shall not be required to
take title to any other property; (2) Seller shall incur no fees, costs,
expenses or exactions of any kind whatsoever arising from the Exchange; (3)
Purchaser shall indemnify Seller in accordance with the Original Agreement; and
(4) the Exchange shall not delay the Closing.
5. PARKING LOT. After the Closing Date, Seller, at Seller's cost shall
complete the repairs to the parking lot as indicated on Exhibit C-1 within sixty
(60) days after the Closing Date. The time for Seller's completion of such work
shall be extended by Events of Force Majeure. Additionally, in consideration
for Purchaser's agreement to seal and restripe the parking lot on or before
October 31, 1998, in the manner recommended in that certain letter of
Xxxxxxx-Xxxxxx to Xx. Xxxxxxx Xxxxxxx dated as of May 22, 1998, a copy of which
is attached hereto as Exhibit C-2 and incorporated by reference herein, Seller
shall pay for the cost of such work provided Seller and Purchaser mutually
approve a bid for such work, which approval shall not be unreasonably withheld,
conditioned or delayed. Purchaser acknowledges that Seller has received a bid
of Sixty-Five Thousand Dollars ($65,000), which bid may be submitted to
Purchaser and Seller for approval after the Closing Date.
6. COMMON AREA EXPENSES. Seller shall cause its property manager to
complete the reconciliation of common area expenses and property taxes for the
1997 calendar year as soon as possible after the Closing Date, but in any event
within twenty (20) days after the Closing Date, subject to any approval rights
of Tenants under Leases and under the REA. The reconciliation of common area
expenses shall be governed by the post-closing proration provisions of Article
13 of the Original Agreement and Section 6.6 of the Amended and Restated Rental
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Subsidy Agreements for the Power/Promotional Center and Community
Center/Triangle. In addition to Seller's obligations under the Amended and
Restated Rental Subsidy Agreements, Seller shall pay up to $50,000 after the
Closing Date to be applied to resolve any Common Area Operating Expense
Pass-Throughs disputes with Tenants. Purchaser and Seller will cooperate with
each other in resolving any such disputes and recovering any such common area
expense reimbursements from Tenants.
7. XXXXXXXXX LEASE. In consideration of Purchaser's approval of the New
Lease for Xxxxxxxxx Nursery dated as of May 18, 1998, Seller shall provide
Purchaser with a credit of $13,500 against the Community Center/Triangle
Purchase Price at the Closing.
8. POST CLOSING ESTOPPELS. Seller will exercise commercially reasonable
efforts to obtain estoppel certificates and agreements of subordination,
nondisturbance and attornment after the Closing Date from any Tenant who has
failed to execute an estoppel certificate or agreement of subordination,
nondisturbance and attornment prior to the Closing Date; provided, however, in
no event will Seller have any liability to Purchaser or the Assignees for any
Tenant's failure or refusal to execute an estoppel certificate or agreement of
subordination, nondisturbance and attornment.
9. EXISTING PUNCHLIST ESTOPPELS. Seller will cause its contractor to
complete the items on the punchlist attached hereto as Exhibit D and
incorporated by reference herein within sixty (60) days after the Closing Date,
subject to extensions for Events of Force Majeure. Seller shall be responsible
for performing Landlord's construction obligations under any Existing Leases,
New Leases and Post-Closing Leases with respect to the initial construction of
Tenant Spaces under the Leases. If any Tenant claims that Seller owes the
Tenant money in the Tenant's estoppel certificate based upon Seller's failure
to perform Landlord's obligation under the any such Lease, Seller will resolve
the claim to the Tenant's and Seller's reasonable satisfaction and Purchaser
and Assignees shall cooperate in good faith with Seller at no expense to
Purchaser or Assignees.
10. EDISON EASEMENT. Purchaser acknowledges that Seller has disclosed to
Purchaser that the Assignees will be required to grant Southern California
Edison ("Edison") an easement for Edison's existing 30 foot underground
electrical transmission line that is located in the parking lot of the Property
and Edison's electrical distribution lines to Tenant's Spaces in the Center.
11. EROSION CONTROL. Seller shall complete at Seller's expense, the
erosion control work on the hillside between the Power/Promotional Center and
Community Center/Triangle as set forth in the scope of work attached hereto as
Exhibit E and incorporated by reference herein within ninety (90) days after
the Closing Date, as such date may be extended by Events of Force Majeure.
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12. PASEO BRIDGE. Seller will cause the paseo bridge referred to in
Article 10 of the Original Agreement to be completed across the Old Road in
accordance with the requirements of the Project approvals for the Property
unless the County of Los Angeles waives the requirement of construction of the
paseo bridge in which case the Seller will comply with the provisions of
Article 10 of the Original Agreement. Upon completion of the paseo bridge, VMII
shall be responsible for maintaining, repairing and insuring the paseo bridge.
13. ASSIGNMENTS. With respect to the Power/Promotional Center, Purchaser
hereby assigns its right, title and interest under the Agreement and this Fifth
Amendment to VMI. With respect to the Community Center/Triangle, Purchaser
hereby assigns its right, title and interest under the Agreement and this Fifth
Amendment to VMII. In accordance with Section 19(l) of the Original Agreement,
the foregoing assignments shall not release Purchaser from liability under the
Agreement and this Fifth Amendment and shall not delay the Closing. Seller
hereby consents to the foregoing assignments, relying upon Purchaser's
representations that VMI and VMII are both entities controlled by or under
common control with Purchaser. VMI and VMII agree to and accept the respective
assignments by executing this Fifth Amendment below and assume the obligations
of Purchaser under the Agreement and this Fifth Amendment with respect to the
Power/Promotional Center and with respect to the Community Center/Triangle, as
applicable, and agree that the Deposit is non-refundable.
14. NONIMPAIRMENT. Except as provided in this Fifth Amendment, the
Agreement is unchanged and shall remain in full force and effect and shall be
binding upon the parties in accordance with its terms. In the event of a
conflict between the Agreement and this Fifth Amendment, this Fifth Amendment
shall prevail.
15. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Fifth Amendment may be
executed in counterparts, each of which shall be deemed to be a part of an
original, and all of which together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Fifth Amendment by
telefacsimile shall be equally as effective as manual delivery of an executed
counterpart of this Fifth Amendment. Any party delivering an executed
counterpart of this Fifth Amendment by telefacsimile also shall manually
deliver an executed counterpart of this Fifth Amendment, but the failure to
manually deliver an executed counterpart shall not affect the validity,
enforceability, and binding effect of this Fifth Amendment.
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IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to be
executed by their duly authorized representatives as of the date first written
above.
"Purchaser" "Seller"
THE NEWHALL LAND AND FARMING COMPANY
(A California Limited Partnership)
By: ___________________________
Xxxxxx X. Xxxxxxxx By: NEWHALL MANAGEMENT LIMITED
PARTNERSHIP, A California Limited
Partnership
Its: Managing General Partner
By: NEWHALL MANAGEMENT CORPORATION
A California Corporation
Its: Managing General Partner
By: ____________________________
Its: _______________________
By: ____________________________
Its: _______________________
IN WITNESS WHEREOF, the Purchaser has caused the assignments under this
Fifth Amendment to be approved and accepted by their duly authorized
representatives as of the date first written above.
Assignee of Power/Promotional Center Assignee of Community Center/Triangle
Valencia Marketplace I, LLC, Valencia Marketplace II, LLC,
A California limited liability A California limited liability
company company
By: Five Five I, Inc., a California By: Five Five II, Inc., a California
corporation corporation
Its: Manager Its: Manager
By: ___________________________ By: ____________________________
Its: President Its: President
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Exhibits X-0, X-0, X-0, X-0, X-0, X-0, X and E omitted in accordance with Item
601(b)(2) of Regulation S-K.
The Newhall Land and Farming Company will furnish supplementally a copy of any
omitted annex, schedule, or exhibit to the Securities and Exchange Commission
upon request; provided, however, that The Newhall Land and Farming Company may
request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for
any annex, schedule or exhibit so furnished.
