First Amendment to Asset Contribution, Purchase and Sale Agreement among Philips International Realty, L.P., Philips International Realty Corp., KIR Acquisition LLC, and Kimco Income Operating Partnership, L.P.

Summary

This amendment extends the due diligence period under the original Asset Contribution, Purchase and Sale Agreement between Philips International Realty, L.P., Philips International Realty Corp., various related entities, KIR Acquisition LLC, and Kimco Income Operating Partnership, L.P. The new deadline for due diligence is June 15, 2000. All other terms of the original agreement remain unchanged. The amendment is effective as of May 31, 2000, and is binding upon all parties who have signed it.

EX-10.5 6 0006.txt FIRST AMENDMENT Exhibit 10.5 FIRST AMENDMENT TO ASSET CONTRIBUTION, PURCHASE AND SALE AGREEMENT THIS FIRST AMENDMENT TO ASSET CONTRIBUTION, PURCHASE AND SALE AGREEMENT (this "First Amendment") is made and entered into as of this 31st day of May, 2000, by and among: PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited partnership ("Contributor"), PHILIPS INTERNATIONAL REALTY CORP., a Maryland corporation ("Contributor Parent"), THOSE CERTAIN PARTIES IDENTIFIED AS A "PHILIPS QRS" or a "LOWER TIER ENTITY" ON THE SIGNATORY PAGES HERETO (such parties, Contributor and Contributor Parent, collectively, the "Seller Parties"); the Seller Parties each having an address at 417 Fifth Ave., New York, NY 10016, KIR ACQUISITION LLC, a Delaware limited liability company ("General Partner") and KIMCO INCOME OPERATING PARTNERSHIP, L.P. ("Limited Partner"), a Delaware limited partnership; General Partner and Limited Partner each having an address at 3333 New Hyde Park Rd., P.O. Box 5020, New Hyde Park, NY 11042-0020. All capitalized terms not specifically defined herein shall have the meanings ascribed to them by that certain Asset Contribution, Purchase and Sale Agreement, dated as of April 28, 2000 (the "Agreement") by and between the parties hereto. RECITALS A. The parties hereto entered into the Agreement. B. Purchaser has requested and Seller has agreed to grant an extension of the Due Diligence Period for a period of two (2) weeks. C. The parties hereto desire to amend the Agreement as more particularly set forth herein. NOW, THEREFORE, in consideration of Ten Dollars (US$10.00), the mutual promises contained herein, and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Due Diligence Period. The Due Diligence Period shall be deemed extended until 7:00 p.m., June 15, 2000, and all references in the Agreement to the Due Diligence Period shall be deemed to reference such amended expiration date. 2. Miscellaneous. Except as expressly set forth herein, all other provisions of the Agreement shall remain in full force and effect. This First Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute a single instrument. Facsimile signatures shall be binding for the purposes of the execution and delivery of this First Amendment, provided that original signatures are delivered to all parties promptly following the execution of this First Amendment. [ SIGNATURES APPEAR ON THE FOLLOWING PAGE ] 2 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment the 31st day of May, 2000. Contributor: PHILIPS INTERNATIONAL REALTY, L.P. BY: Philips International Realty Corp., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President Contributor Parent: PHILIPS INTERNATIONAL REALTY CORP. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President General Partner: KIR ACQUISITION LLC BY: Kimco Income Operating Partnership, L.P., sole member By: Kimco Income REIT, general partner By: /s/ Bruce M. Kauderer -------------------------------------- Name: Bruce M. Kauderer Title: Vice President Limited Partner: KIMCO INCOME OPERATING PARTNERSHIP, L.P., a Delaware limited partnership BY: Kimco Income REIT, general partner By: /s/ Bruce M. Kauderer -------------------------------------- Name: Bruce M. Kauderer Title: Vice President Lower Tier Entities: PHILIPS BRANHAVEN ASSOCIATES, L.P. BY: PHILIPS BRANHAVEN SUB-III, INC., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS ENFIELD ASSOCIATES L.P. BY: PHILIPS ENFIELD SUB-IV, INC. general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President FOXBOROUGH SHOPPING L.L.C. BY: FOXBOROUGH SUB-IX, INC., managing member By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President DELRAN SHOPPING, L.L.C. BY: PHILIPS DELRAN SHOPPING, SUB-X, INC., managing member By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS AVENUE U ASSOCIATES, L.P. BY: PHILIPS AVENUE U SUB-VI, INC., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS MEADOWBROOK ASSOCIATES, L.P. BY: PHILIPS MEADOWBROOK SUB-V, INC., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS MERRICK ASSOCIATES L.P. BY: PHILIPS MERRICK SUB-II, INC., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS FOREST ASSOCIATES, L.P. BY: PHILIPS FOREST SUB-I, INC., general partner By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President Philips QRSs: PHILIPS BRANHAVEN SUB-III, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS ENFIELD SUB-IV, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS FOXBOROUGH SUB-IX, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS DELRAN SHOPPING SUB-X, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS AVENUE U SUB-VI, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS MEADOWBROOK SUB-V, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS MERRICK SUB-II, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President PHILIPS FOREST SUB-I, INC. By: /s/ Louis J. Petra ---------------------------- Name: Louis J. Petra Title: President