EX-2 3 0003.txt REINSTATEMENT AGREEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT REINSTATEMENT AGREEMENT AND FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "First Amendment"), dated as of the 22nd day of December, 2000, by and between Deptford Crossing Associates, L.P., a Delaware limited partnership, having an office c/o Dean Witter Realty Inc., Two World Trade Center, 64th Floor, New York, New York 10048, (the "Seller"), and The Hutensky Group, LLC, a Connecticut limited liability company, having an office at 280 Trumbull Street, 2nd Floor, Hartford, Connecticut 06103-3504 (the "Purchaser"). W I T N E S S E T H WHEREAS, the Seller and the Purchaser entered into that certain Purchase and Sale Agreement, dated as of October 4, 2000 (the "Purchase Agreement") pursuant to which the Seller agreed to sell and the Purchaser agreed to purchase the property known as Deptford Crossing in Deptford Township, New Jersey (the "Property"); WHEREAS, the Purchase Agreement was terminated pursuant to the Purchaser's Termination Notice dated November 15, 2000 and the Escrow Agent subsequently returned the Letter of Credit to the Purchaser; WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement; and WHEREAS, the parties desire to reinstate, ratify and amend the Purchase Agreement in the manner hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. The Purchaser hereby withdraws and rescinds the Purchaser's Termination Notice dated November 15, 2000 (the "Purchaser's Termination Notice") attached hereto as Exhibit 1 and such termination notice shall be of no force and effect and void ab initio. The Seller and the Purchaser covenant and agree that the Purchase Agreement shall be and hereby is reinstated and ratified as though the Purchaser's Termination Notice was not delivered and shall be deemed to be in full force and effect from the original date of execution, as amended hereby. 2. The Purchaser hereby acknowledges that the Due Diligence Period has expired and that it has irrevocably waived its right to terminate the Purchase Agreement pursuant to Section 4.2 thereof. 3. The Purchaser hereby acknowledges that all Unacceptable Encumbrances previously objected to by the Purchaser have either been eliminated or waived. 4. To the Seller's Knowledge, nothing has occurred since the date set forth in any Tenant Estoppel Certificate delivered to the Purchaser that would effect the truth, accuracy or correctness of such Tenant Estoppel Certificate both as of the date made and as of the date hereof. This representation shall survive the Closing for six (6) months. 5. Notwithstanding anything to the contrary in Section 3.2.1 of the Purchase Agreement, any Rents received by the Seller from any tenant during the period commencing on the Closing through and including January 31, 2001 shall be applied to amounts due and payable by such tenant in the manner specified by such tenant in writing at the time such payment is made, provided that if such tenant does not so specify, such Rents shall be paid over and belong to the Purchaser. All Rents received by the Seller after such period shall be promptly applied in accordance with the priorities set forth in Section 3.2.1 of the Purchaser Agreement. 6. Within a reasonable time following December 31, 2000, subject to time frames, if any, contained in any tenant lease, the Seller will reconcile the CAM charges paid by the tenants for the fiscal year ended December 31, 2000 to the actual CAM expenses incurred by the Seller for such fiscal year. The Seller's CAM reconciliation shall be subject to the prior reasonable approval of the Purchaser prior to being billed to the tenants. The Purchaser shall use reasonable efforts to collect any underpayments of CAM charges within three (3) months of the date that Seller provides such CAM reconciliation to the Purchaser. The Purchaser hereby agrees to pay over such CAM underpayments to the Seller upon receipt. If there are any overpayments of CAM charges, the Seller shall promptly pay the amount of such CAM overpayments to the Purchaser. The Purchaser shall hold such CAM overpayments in trust for the tenants owed such overpayments and the Purchaser shall promptly forward such overpayments to the applicable tenants. Any deductions taken by the tenants related to the 2000 CAM reconciliation will be treated as CAM overpayments and the Seller shall promptly pay over an amount equal to such sums to the Purchaser and the Purchaser shall be entitled to keep the same. 7. For a period of three (3) months following the Closing, the Seller shall, upon Purchaser's request, reasonably assist the Purchaser in its efforts to have any party, other than the Seller, to any of the contracts and warranties listed on Schedule 2 to the Assignment and Assumption of Contracts and Licenses (executed at closing by the Seller and the Purchaser) consent to the assignment of such contracts and warranties to the Purchaser and the Purchaser shall promptly reimburse the Seller for all reasonable costs incurred by the Seller in providing such assistance. 8. The Seller hereby agrees to credit the Purchase Price at the Closing in the amount of (i) One Hundred Eighty Nine Thousand Dollars ($189,000) for unpaid tenant allowances owed by the Seller to ULTA3 Cosmetics & Salon, Inc. ("ULTA"), and (ii) Five Thousand Nine Hundred Sixty-seven Dollars and Sixty- three Cents ($5,967.63) for a CAM short payment by Marshalls of Deptford NJ, Inc. 9. The Seller hereby agrees to credit the Purchase Price at the Closing in the amount of Twelve Thousand Dollars ($12,000) for repair work to address water infiltration at the OfficeMax space suggested by Land Dimensions in its December 19, 2000 memorandum. To fund repairs in excess of the aforementioned Twelve Thousand Dollars ($12,000), if any, the Seller agrees to deposit Fifty Thousand Dollars ($50,000) with the Escrow Agent at the Closing, which sum shall be held pursuant to the terms of the escrow agreement (the "Escrow Agreement for Repair Work") attached hereto as Exhibit 2. The Purchaser hereby agrees that the Seller's liability with regard to the repair shall in no event exceed the Fifty Thousand Dollar ($50,000) placed in escrow and that the Purchaser shall indemnify the Seller for any liabilities in excess thereof arising out of the Seller's obligation as landlord under the Leases. The Purchaser hereby agrees that the existence of the Escrow Agreement for Repair Work shall be kept strictly confidential (provided that the Purchaser may disclose its existence to the Purchaser's Representatives) and shall not, without the prior written consent of the Seller, be disclosed by the Purchaser or the Purchaser's Representatives, in any manner whatsoever, in whole or in part. The provisions of this paragraph shall survive the Closing. 10. The Seller agrees to deposit Two Hundred Thousand Dollars ($200,000) (the "Escrow Amount") with the Escrow Agent at the Closing to settle an exclusivity claim made by Sally Beauty Company, Inc. ("Sally"), which sum shall be held pursuant to the terms of the escrow agreement (the "Escrow Agreement for Tenant Claim") attached hereto as Exhibit 3. The Purchaser hereby agrees that it will, at all times, use good faith efforts to resolve Sally's exclusivity claim. The Purchaser may draw down up to Fifty Thousand Dollars ($50,000) of the Escrow Amount to settle the exclusivity claim with Sally. If the Purchaser and Sally settle for less than Fifty Thousand Dollars ($50,000), the Purchaser shall be entitled to receive fifty percent (50%) of the difference between the settlement amount and Fifty Thousand Dollars ($50,000) from the Escrow Amount. The Seller and the Purchaser shall both be entitled to draw down the Escrow Amount for costs associated with claims made by ULTA under Section 7.1(b) of the ULTA lease. If Sally brings an exclusivity claim against the Purchaser, the Purchaser may draw down the Escrow Amount for legal expenses associated with defending or settling such claim. Purchaser shall also be entitled to draw down the Escrow Amount (i) to reimburse the Purchaser for rent owed but not paid by Sally prior to Sally vacating its space, provided that, any sums subsequently recovered by the Purchaser shall be promptly remitted to the Seller, (ii) to reimburse the Purchaser for rent that would have been paid by Sally during the period between Sally vacating its space and the installment of a replacement tenant in Sally's space, provided that, any sums subsequently recovered by the Purchaser shall be promptly remitted to the Seller (such draw down shall not exceed Thirtyfive Thousand Dollars ($35,000)), (iii) for the cost of refitting Sally's space for a replacement tenant (such draw down shall not exceed Sixty Thousand Dollars ($60,000)), and (iv) to pay any judgment or penalty or any other costs related to any judgment or penalty for the Sally claim, provided that all appeals, if any, have been exercised. The Purchaser hereby agrees that it will promptly exercise its rights under the Sally lease upon a payment default by Sally. The unused portion of the escrow shall be promptly returned to the Seller on June 30, 2001, provided, however, that such unused portion shall not be returned until the Tenant's claim has been resolved. So long as the Escrow Agreement for Tenant Claim is outstanding, the Purchaser shall promptly provide the Seller copies of all correspondence between Sally and the Purchaser, including, without limitation, all monthly sales reports for Sally, provided that the Purchaser's failure to deliver such correspondence shall not be a default hereunder. The Purchaser hereby agrees that the Seller's liability with regard to the exclusivity claim made by Sally shall in no event exceed the Two Hundred Thousand Dollar ($200,000) placed in escrow and that the Purchaser shall indemnify the Seller for any liabilities in excess thereof arising out of the Seller's obligation as landlord under the Sally and ULTA leases. The Seller will not initiate any contact with Sally or respond to any contact from Sally without the prior consent of the Purchaser, provided, however, that no consent of the Purchaser shall be required if the Seller's failure to respond would prejudice any legal rights of the Seller. The Seller shall promptly provide the Purchaser copies of all correspondence between Sally and the Seller, provided that the Purchaser's failure to deliver such correspondence shall not be a default hereunder. The Purchaser hereby agrees that the existence of the Escrow Agreement for Tenant Claim shall be kept strictly confidential (provided that the Purchaser may disclose its existence to the Purchaser's Representatives) and shall not, without the prior written consent of the Seller, be disclosed by the Purchaser or the Purchaser's Representatives, in any manner whatsoever, in whole or in part. The provisions of this paragraph shall survive the Closing. 11. The Seller hereby agrees that it will only attempt to collect base rent, not holdover rent, from holdover tenant M.E.E. Enterprises, Inc. (Future Rest) owing to the Seller for the period prior to the Closing. 12. The Purchase Agreement is hereby further amended as follows: (a) The Table of Defined Terms to the Purchase Agreement is hereby amended by deleting the definitions of "Deposit" and "Escrow Agent" and substituting in lieu thereof the following new definitions in proper alphabetical sequence: "Deposit" shall mean zero dollars ($0). "Escrow Agent" shall mean the Title Company. (b) The definitions "Additional Downpayment", "Cash Downpayment", "Clearing House Bank", "Escrow Agreement" and "Letter of Credit" in the Table of Defined Terms to the Purchase Agreement are hereby deleted in their entirety. (c) The text of Section 1.2 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: "The delivery of the Deed and the consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Dechert, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, Pennsylvania, 09103 on Friday, December 22, 2000 (the "Closing Date"). (d) The text of Section 2 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: "The purchase price to be paid by the Purchaser to the Seller for the Property (the "Purchase Price") is Eleven Million Five Hundred Thousand Dollars ($11,500,000). The Purchase Price, plus or minus the apportionments set forth in Section 3, shall be paid at the Closing by bank wire transfer of immediately available funds to the Seller's account or to the account or accounts of such other party or parties as may be designated by the Seller on or before the Closing Date. (e) Section 6(g) of the Purchaser Agreement is hereby deleted in its entirety and replaced with the following: "(g) The marketing fund for the Property has a zero balance and there is no merchant's association for the Property." (f) Section 15 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: "15. Intentionally Deleted." (g) Section 17.3 of the Purchase Agreement is hereby amended by adding the words ", lenders providing or considering financing for the Property, investors" after the words "consultants, engineers". (h) The text of Section 21 of the Purchase Agreement is hereby deleted in its entirety and replaced with the following: "Except for those obligations, liabilities, representations and warranties expressly made to survive herein and except as otherwise expressly provided herein or in the Conveyance Documents, the Purchaser's acceptance of the Deed shall be deemed a discharge of all of the obligations of the Seller and the Purchaser hereunder and all of the Seller's and the Purchaser's representations, warranties, covenants and agreements herein shall merge in the documents and agreements executed at the Closing and shall not survive the Closing." (i) Exhibit I and Exhibit K to the Purchase Agreement are hereby deleted in their entirety. (j) Schedule 3 to the Purchaser Agreement is hereby amended by deleting therefrom the contract with (i) Lipinski Landscape for Landscaping, and (ii) Wilson Creative Mktg Center for Promotion. 13. Except as stated herein the Purchase Agreement is hereby reinstated, ratified, confirmed and shall remain in full force and effect. 14. This First Amendment shall be interpreted and enforced in accordance with the laws of the State of New Jersey without reference to principles of conflicts of laws. 15. This First Amendment may be executed and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. [Signature Page Follows] IN WITNESS WHEREOF, this First Amendment has been duly executed by the parties hereto as of the day and year first above written. SELLER: DEPTFORD CROSSING ASSOCIATES, L.P. By: LS Deptford Crossing, L.P., its general partner By: LS Deptford, Inc., its general partner By: /s/ Robert B. Austin Name: Robert B. Austin Title: Vice President PURCHASER: THE HUTENSKY GROUP, LLC By: /s/ Brad M. Hutensky Name: Brad M. Hutensky Title: Member