Exhibit 5.8
May 6, 1998
The Village Shopping Center, A Limited Partnership
0000 X. Xxxx Xxxxxx, #0000
Xxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx, General Partner
Re: Contribution Agreement for The Village Shopping Center
dated March 24, 1998 as amended by Letter Amendments
dated April 23, 1998 and April 29, 1998 between First
Washington Realty Limited Partnership and The Village
Shopping Center, A Limited Partnership
Gentlemen:
This letter is intended to serve as an amendment to the Contribution
Agreement described above. Notwithstanding any other terms or conditions of the
Contribution Agreement to the contrary, it is expressly agreed as follows: 1.
Pursuant to its due diligence rights under the Contribution Agreement, First
Washington Realty Limited Partnership ("FWRLP") contracted with EMG for, among
other matters, a "Phase II Environmental Assessment" dated April 24, 1998 (the
"Phase II") of The Village Shopping Center (the "Property"). The Phase II
identified the following items of concern: (a) Five out of service heating oil
underground storage tanks (the "Petroleum USTs"); (b) Two out of service dry
cleaning solvent underground storage tanks (the "Solvent USTs"); (c) A release
of petroleum and additives thereto and constituents thereof in the soil on the
Property from one or more of the Petroleum USTs (the "Petroleum Contamination");
and (d) A release of dry cleaning solvents and constituents and break down
products thereof and additives thereto in the soil from one or more of the
Xx. Xxxxxx Xxxxx, General Partner
The Village Shopping Center, A Limited Partnership
May 6, 1998
Page 2
Solvent USTs or the dry cleaning operations on the Property (the "Solvent
Contamination"). The Petroleum USTs, Solvent USTs, Petroleum Contamination, the
Solvent Contamination and any petroleum, hazardous substances and constituents
and break down products thereof and additives thereto related to the Petroleum
USTs, the Solvent USTs, the Petroleum Contamination and/or the Solvent
Contamination and discovered in the course of the performance of the
Contributor's obligations hereunder are hereinafter referred to collectively as
the "Environmental Concerns". 2. The Village Shopping Center, A Limited
Partnership (the "Contributor") has agreed to take the following actions with
regard to the Environmental Concerns: (a) Petroleum USTs -- The Contributor
shall, within thirty (30) days hereof, subject to reasonable delay for
regulatory approvals or other force majeure, cause the Petroleum USTs and the
contents thereof to be removed from the Property in compliance with all
applicable laws, regulations and ordinances. In the event that any applicable
governmental authority determines that one or more of the Petroleum USTs should
be closed in place due to concerns for the structural integrity of a building or
unreasonable costs to relocate utility lines or otherwise, then any such
Petroleum USTs may be closed in place in compliance with all applicable laws,
regulations and ordinances using concrete slurry or structural foam as the fill
material. (b) Solvent USTs -- The Contributor shall, within thirty (30) days
hereof, subject to reasonable delay for regulatory approvals or other force
majeure, cause the contents of the Solvent USTs to be removed and disposed of
and the Solvent USTs to be closed in place using concrete slurry or structural
foam as the fill material in compliance with all applicable laws, regulations
and ordinances, including sampling requirements and completion of the proper
closure notification and reporting to the Virginia Department of Environmental
Quality ("DEQ"). (c) Petroleum Contamination -- The Contributor has notified DEQ
of the Petroleum Contamination and DEQ will advise the Contributor that a
"pollution complaint number" will be assigned in connection with the Petroleum
Contamination. The Contributor agrees to perform such actions as required by DEQ
pursuant to assess, and remediate and monitor if necessary, the Petroleum
Contamination and other Environmental
Xx. Xxxxxx Xxxxx, General Partner
The Village Shopping Center, A Limited Partnership
May 6, 1998
Page 3
Concerns related thereto until the issuance of a typical "no further
action" letter by DEQ. (d) Solvent Contamination -- The Contributor has notified
DEQ of the Solvent Contamination, but it is unknown at this time under which
regulatory program DEQ, or EPA if applicable, will accept the release of the
solvents. Regardless of the regulatory program under which the Solvent
Contamination is assessed, and remediated and monitored if necessary, the
Contributor shall assess, remediate and monitor the Solvent Contamination as
required by the applicable regulatory authority until such regulatory authority
issues a typical "no further action" letter, certificate of satisfactory
completion or the equivalent thereof with regard to the Solvent Contamination
and other Environmental Concerns related thereto. (e) The Contributor shall
diligently pursue the actions required hereunder at all times until the
Contributor's obligations are complete at the Contributor's sole cost and
expense. Copies of all correspondence or other documentation received by the
Contributor from DEQ or EPA regarding the Environmental Concerns shall be sent
to FWRLP promptly upon receipt. In the event that the Contributor is not
diligently pursuing its obligations hereunder after fifteen days' written notice
from FWRLP, then, at its option, and upon written notice to the Contributor,
FWRLP shall have the right to take all steps reasonably necessary to complete
the Contributor's obligations hereunder. FWRLP agrees to promptly advise the
Contributor of the steps taken and the progress being made after exercising its
rights pursuant to this Paragraph 2(e). If FWRLP exercises its rights pursuant
to this Paragraph 2(e), the Contributor shall pay all reasonable invoices
received from FWRLP for Costs (as defined in Paragraph 3 below) within twenty
(20) days of receipt thereof. The election by FWRLP under this Paragraph 2(e)
shall not affect or modify the extent of the Contributor's liability hereunder
for the Costs as described below. (f) Each of the parties hereto acknowledges
that (i) Contributor has entered into a Proposal/Contract for Services dated
May 1, 1998 with Apex Environmental, Inc. for the performance of certain work
related to the Petroleum USTs and Solvent USTs, and (ii) Contributor has
received a supplemental letter dated May 1, 1998 from Apex which briefly
summarizes the "likely course of action." The foregoing are subject in
Xx. Xxxxxx Xxxxx, General Partner
The Village Shopping Center, A Limited Partnership
May 6, 1998
Page 4
their entirety to the terms and conditions of Paragraphs 1 through 4 of
this Amendment to the Contribution Agreement. 3. The Contributor agrees to
indemnify and hold harmless FWRLP and its representatives, agents, successors
(including, without limitation, successors in title to the Property), assigns,
and nominees, from and against all Costs (as hereinafter defined) associated
with addressing the Environmental Concerns as required by Contributor hereunder.
The "Costs" covered by this Agreement shall be deemed to mean all reasonable
attorneys' and consultants' fees, and other costs and expenses reasonably
necessary or appropriate for completing the Contributor's obligations hereunder
for addressing the Environmental Concerns; provided, however, that such costs
shall also include those fees, costs and expenses incurred by FWRLP, but only
those fees, costs and expenses incurred by FRWLP in the event FWRLP exercises
its rights pursuant to Paragraph 2(e) hereof. If the Contributor fails to pay
any invoices for Costs within twenty (20) days of receipt from FWRLP in
accordance with Paragraph 2(e) hereof, FWRLP and/or FWRT shall have the right to
recover any Costs incurred by FWRLP under Paragraph 2(e), dollar-for-dollar,
from the Partnership Units, any stock exchanged for the Partnership Units, and
any distributions or dividends due thereunder. 4. Paragraphs 1, 2 and 3 of this
amendment to the Contribution Agreement (a) shall survive closing thereunder
without limitation and shall terminate upon completion of the Contributor's
obligations hereunder, with the exception of the rights of FWRLP under Paragraph
3 hereof which shall terminate upon the complete payment of all Costs by the
Contributor, and (b shall be binding upon and inure to the benefit of the
parties hereto, and their respective heirs, executors, administrators, personal
and legal representatives, successor and assigns. 5. This will serve as notice
to Contributor that the Board of Directors of First Washington Realty Trust,
Inc. ("FWRT") has approved the Contribution Agreement and the transactions
contemplated thereby as required in Section 8(a)(viii) of the Contribution
Agreement. 6. The outside Closing Date under Section 4 of the Contribution
Agreement is hereby amended to be May 29, 1998, subject to extension as provided
in Section 4; provided, however, that all settlement adjustments under
Section 11 of the Contribution Agreement shall be made effective June 1, 1998.
7. FWRLP hereby acknowledges that its right to terminate the Contribution
Agreement before the end of the Feasibility Period as provided for in
Section 13(b) of the Contribution Agreement has expired.
Xx. Xxxxxx Xxxxx, General Partner
The Village Shopping Center, A Limited Partnership
May 6, 1998
Page 5
8. Any capitalized term used herein but not otherwise defined herein shall
have the meaning as set forth in the Contribution Agreement. 9. Except as
expressly amended hereby, the Contribution Agreement remains unmodified and
continues in full force and effect. If the foregoing is satisfactory, please
execute and return the enclosed counterpart original of this letter to me as
soon as possible.
Sincerely,
FIRST WASHINGTON REALTY LIMITED
PARTNERSHIP
a Maryland limited partnership
By: First Washington Realty Trust, Inc.,
Its general partner
By:/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
ACKNOWLEDGED AND AGREED
as of May 7, 1998:
THE VILLAGE SHOPPING CENTER,
A LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
General Partner
cc: Xxxx X. Xxxxxx, Esquire (via facsimile 202-537-5505)
Xx. Xxx Xxxxxxxx (via facsimile 301-495-9452)
Xxxxxxx X. Xxxxxxxxxx, Esquire
Ms. Xxxxxx Xxx
