THIRD AMENDMENT
TO
PURCHASE AND SALE
AGREEMENT
This THIRD
AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “ Third
Amendment ”) is entered into as of the 6 th
day of August, 2008, by and between Brookside Properties, Inc., a
Tennessee corporation (“ Buyer ”), TRB
Chattanooga LLC, a Tennessee limited liability company (the “
Seller ”), and BRT Realty Trust, a Massachusetts
business trust (the “ Entity Owner
”).
R
E
C I T A
L S :
WHEREAS, Seller
and Buyer entered into a Purchase and Sale Agreement dated as of
July 17, 2008, as amended by First Amendment to Purchase and Sale
Agreement dated as of August 1, 2008 and Second Amendment to
Purchase and Sale Agreement dated as of August 5, 2008 (as it may
be amended from time to time, the “ Agreement ”)
with regard to certain real property more particularly described in
the Agreement; and
WHEREAS,
Seller, Buyer and Entity Owner desire to further amend certain
terms and provisions of the Agreement pursuant to the terms
hereof.
NOW, THEREFORE,
for and in consideration of the foregoing premises and other
valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, Seller, Buyer and Entity Owner hereby further
amend the Agreement as follows:
1.
Defined Terms
. Capitalized terms not otherwise
defined herein shall have the meanings set forth in the Agreement.
Entity Owner is hereby added as a party to the
Agreement.
2. Earnest Money . On or by August 8, 2008, Buyer shall deliver
to Escrow Agent the sum of Two Hundred Fifty Thousand and No/100
Dollars ($250,000.00) (the “ Additional Earnest Money
”) which shall be added to and thereafter considered a part
of the already existing Earnest Money as governed by Section
3 of Agreement.. Upon receipt of the Additional Earnest Money,
Escrow Agent shall hold the Additional Earnest Money with the
Earnest Money in an interest bearing account at an FDIC insured
bank. The Earnest Money and the Additional Earnest Money shall be
referred to together as the “ Earnest Money .”
On the Closing Date, the Earnest Money shall be applied as part
payment of the Purchase Price.
3. Closing Date . Section 4 of the Agreement is hereby
deleted in its entirety and the following is hereby inserted in its
place:
“The
closing of the purchase and sale of the Property as described in
this Agreement (the “ Closing ”) shall take
place in escrow through the offices of the Escrow Agent on
September 30, 2008, subject to being extended as set forth herein
(the “ Closing Date ”). This Agreement and such
other agreements or instruments as may be reasonably necessary to
consummate the transaction contemplated hereby shall be
collectively referred to as the “ Closing Documents
.”
4. Amendment . Section 6(a) and Section 6(b) of
the Agreement are hereby deleted in their entirety and the
following is hereby inserted in their place:
“(a) For the purposes of this Agreement, “
good and marketable fee simple title ” shall mean fee
simple ownership that is: (i) free of all claims, liens and
encumbrances of any kind or nature whatsoever other than the
Permitted Exceptions (as defined in this Section 6(a) ), and
(ii) insurable by Escrow Agent, at the then current standard rates
under the standard form of ALTA owner’s policy of title
insurance (ALTA Form B or equivalent), with the standard printed
exceptions therein deleted, without exception other than for the
Permitted Exceptions and containing such coverages and endorsements
as shall be reasonably required by Buyer’s counsel (the
“ Title Policy ”). For the purposes of this
Agreement, the term “ Permitted Exceptions ”
shall mean: (A) current taxes not yet due and payable, (B) tenants
in possession under unrecorded residential leases affecting the
Property, as tenants only without any rights to purchase the
Property, and (C) such other matters not specifically objected to
in writing by Buyer on or before August 8, 2008 (the “
Title and Survey Inspection Period ”).
(b) During the Inspection Period, Buyer shall
obtain a title insurance commitment from Chapman & Rosenthal
Title, Inc., as agent for the Escrow Agent, together with copies of
all of the encumbrances listed therein (the “
Commitment ”). During the Title and Survey Inspection
Period, Buyer shall examine the Commitment and the Survey (as
defined in Section 7 hereof), and give Seller written notice
of objections that render Seller’s title to the Property less
than good and marketable fee simple title and any objections to the
Survey (each a “ Defect ”), except that Buyer
shall not object to liens for real estate taxes not yet due and
payable and shall not be required to object to voluntary mortgage
liens, security interests, tax liens for delinquent taxes or
mechanics liens placed or caused by Seller’s actions,
including without limitation the Redi-Floors Claim (as defined in
Section 12(e) hereof), it being understood and agreed by the
parties the Seller shall be obligated to satisfy such liens, or
cause such exceptions to be removed from the Title Policy by
Closing. Thereafter, Buyer shall have until the Closing Date in
which to reexamine the Commitment and Survey and in which to give
Seller written notice of any additional objections for matters not
existing during the Title and Survey Inspection Period and
disclosed by such reexamination (each a “ Defect
”). Seller shall have until ten (10) days prior to the
Closing Date in which to satisfy all Defects specified in
Buyer’s initial notice of title objections, and until the
Closing Date in which to satisfy the Defects specified in the
subsequent notice by Buyer of title objections first disclosed
during the re-examination provided for in the third sentence of
this Section 6(b) . Seller shall notify Buyer that a Defect
has been cured upon the curing of such Defect. The parties hereto
hereby agree that the letter from Buyer to Seller dated August 5,
2008 regarding Title Objections is hereby rescinded and is of no
further force and effect.”
5. Purchase of the Entity . The following is hereby inserted immediately
following Section 37 of the Agreement.
“38. Purchase of the Entity . (a) At Buyer’s election exercised in
writing, at least seven (7) days prior to Closing, Buyer may elect
to purchase 100% of the membership interest in TRB Chattanooga LLC,
a Tennessee limited liability company (the “ Ownership
Interest ”), as set forth in this Section 38 . In
the event Buyer elects to purchase the Ownership Interest in
Seller, Entity Owner shall deliver at
