UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 31, 2006
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ONE LIBERTY PROPERTIES, INC.
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(Exact name of Registrant as specified in charter)
Maryland 001-09279 13-3147497
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(State or other (Commission file No.) (IRS Employer
jurisdiction of I.D. No.)
incorporation)
60 Cutter Mill Road, Suite 303, Great Neck, New York 11021
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code 516-466-3100
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
-- Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
-- Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
-- Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
-- Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
On July 31, 2006, registrant announced that a contract of sale to sell nine
properties previously executed by eight entities, which are wholly-owned by two
joint ventures of the registrant (the registrant holds a 50% equity interest in
each joint venture), and a wholly-owned subsidiary of the registrant, with a
buyer has been amended to afford the buyer an additional due diligence period
ending on August 9, 2006. The buyer may terminate the contract within the due
diligence period, for any reason. A press release announcing the extension of
the due diligence period through August 9, 2006 is filed as an Exhibit to this
form 8-K.
Reference is made to the registrant's 8-Ks filed on June 16, 2006 and June 19,
2006 with respect to the contract of sale.
Item 9.01. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired. Not applicable.
(b) Pro Forma Financial Information. Not applicable.
(c) Shell Company Transactions. Not applicable.
(d) Exhibits.
Exhibit 10.1 First Amendment to Contract of Sale
Exhibit 10.2 Amendment to Contract of Sale
Exhibit 99.1 Press release dated July 31, 2006.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ONE LIBERTY PROPERTIES, INC.
Date: August 1, 2006 By: /s/ Simeon Brinberg
-----------------------
Simeon Brinberg
Senior Vice President
Exhibit 10.1
FIRST AMENDMENT TO CONTRACT OF SALE
This FIRST AMENDMENT TO CONTRACT OF SALE (this "First Amendment") is
made and entered into as of the 20th day of July, 2006 by and among OLP Chula
Vista Corp. ("OLP Chula Vista"), OLP Norwalk LLC ("OLP Norwalk"), OLP Austell
("OLP Austell"), OLP Beavercreek LLC ("OLP Beavercreek"), OLP Southlake, LLC
("OLP Southlake"), OLP Roanoke, LLC ("OLP Roanoke"), OLP Lubbock Venture Limited
Partnership ("OLP Lubbock"), OLP Live Oak Limited Partnership ("OLP Live Oak")
and OLP Henrietta, LLC ("OLP Henrietta") each having an office at 60 Cutter Mill
Road, Suite 303, Great Neck, New York 11021, severally, but not jointly, the
"Seller", and ECM Diversified Income & Growth Fund, LLC, a Delaware limited
liability company, having an office at 150 North Wacker Drive, Suite 800,
Chicago, Illinois 60606, as the "Purchaser" and is an amendment to that certain
Contract of Sale among Seller and Purchaser dated June 14, 2006 (the
"Contract"). Capitalized terms not otherwise defined herein shall have the
meaning given to them in the Contract.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has completed some, but not all of the due
diligence it desires to complete under the Contract, and
WHEREAS, Purchaser and Seller wish to extend the Due Diligence Period
for certain matters identified by Purchaser to Seller, and
WHEREAS, each Seller wishes to sell its Respective Property and
Purchaser wishes to acquire the Premises in accordance with the terms of the
Contract as modified by this First Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the sufficiency of which being hereby acknowledged, the parties
hereto do hereby agree as follows:
1. Second Earnest Money Payment. Paragraph 1(B) of the Contract is hereby
modified to read as follows:
"Two Million Dollars ($2,000,000.00) on or before 5:00 p.m.
(local New York time) on July 27, 2006 as the second
installment of the nonrefundable (except as specifically set
forth herein) Downpayment (the "Second Earnest Money
Payment"), by wire transfer or other immediately available
funds payable to Escrow Agent, which sum shall be held in
escrow pursuant to the terms hereof; and"
2. Due Diligence Period. Paragraph 7(B) of the Contract is hereby modified to
read as follows:
"Purchaser shall have through 5:00 p.m. (local New York time)
on July 26, 2006 (the "Due Diligence Period") to notify
Sellers' Representative of its election not to proceed with
the acquisition of the Premises solely based on any one or
more of the matters described on Schedule 2 hereto ("Open Due
Diligence Items"). If Purchaser shall timely notify Sellers'
Representative of its election not to proceed with the
acquisition of the Premises on the good faith basis that one
or more of the Open Due Diligence Items are not acceptable to
Purchaser, then Purchaser shall be entitled to simultaneously
with such notice terminate this Contract, in which event the
Downpayment and interest thereon shall be returned to
Purchaser and the parties shall have no other liability to
each other. If Purchaser shall fail to notify Sellers'
Representative of its desire to terminate this Contract as
aforesaid, then Purchaser shall be deemed to be satisfied with
the Premises and the contingencies set forth in this Paragraph
7.B. shall be deemed satisfied. Purchaser acknowledges and
agrees that excepting the Open Due Diligence Items, it has had
sufficient time and opportunity to inspect, examine, review
and investigate all matters relating to the Property and this
Contract. Excepting the Open Due Diligence Items and excepting
items expressly provided by the Contract to be post-Due
Diligence Period determinations or notifications, Purchaser
expressly deems itself satisfied with all due diligence
matters relating to the Premises, including without limitation
all title, survey, environmental and all other investigations
and reviews of every kind or nature with respect to the
Premises (collectively, the "Completed Due Diligence").
Purchaser hereby waives any and all rights to make objection
to any matters on the basis of the Completed Due Diligence,
and Purchaser hereby waives any and all rights to extend the
Closing Date, Due Diligence Period or terminate the Contract
on the basis of the Completed Due Diligence."
3. Schedule A-6. Schedule A-6 is hereby deleted in its entirety and the First
Amended Schedule A-6 attached hereto is substituted therefor.
4. Miscellaneous.
A. This First Amendment amends and modifies certain provisions of the Contract,
and the terms and provisions of this First Amendment are hereby deemed part of
the Contract for all purposes. Except as modified hereby, the Contract will
remain in full force and effect as written.
B. If any party shall be required to employ an attorney to enforce or defend the
rights of such party related to this First Amendment, the prevailing party shall
be entitled to recover reasonable attorneys' fees and costs. This Paragraph 4.B
shall survive the Closing or earlier termination of the Contract.
C. This First Amendment contains the complete agreement between the parties as
to the matters described herein, supersedes all prior agreements (oral or
written) as to the matters described herein and no term hereof may be waived or
amended except by the written agreement of the party to be charged by such
waiver or amendment. This First Amendment has been negotiated and shall not be
construed against its drafter. The parties agree that there are no oral
agreements, understandings, representations or warranties which are not
expressly set forth herein.
D. This First Amendment shall not be binding until executed and delivered by
Seller and Purchaser. Once fully executed and delivered, this First Amendment
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted assigns.
E. This First Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
F. If any provision hereof shall be deemed unenforceable, the remaining terms of
this First Amendment shall be unaffected thereby and shall remain in full force
and effect.
G. The headings herein are for reference purposes only and shall not be deemed
to affect the interpretation of this First Amendment.
H. SELLER AND PURCHASER HEREBY WAIVE ANY AND ALL RIGHTS THAT EITHER MAY HAVE TO
A JURY TRIAL IN RESPECT OF ANY DISPUTE CONCERNING THIS FIRST AMENDMENT OR THE
PREMISES.
I. Each Seller and Purchaser expressly understands and agrees and acknowledges
that neither party would have entered this First Amendment without the express
provisions of this Subparagraph 4.I. Subject to the continuing effectiveness of
Subparagraph 20.K of the Contract, except as specifically permitted under
Subparagraph 4.J of this First Amendment, in no event shall either party ever be
liable to the other party for consequential, compensatory or any other monetary
damages in respect of the matters contained in this First Amendment. In
addition, each party hereby agrees that in no event shall either party make or
bring any claim for any matter whatsoever against any member, shareholder,
partner, officer, director, trustee, employee, agent, representative or counsel
of or for the other party. Each party acknowledges that it agrees to this 4.I
and that it has consulted with counsel of its own choosing in so agreeing. This
Subparagraph 4.I shall survive the Closing or earlier termination of the
Contract.
J. Purchaser understands and agrees that it shall not be permitted to record
this First Amendment or a memorandum hereof and any breach of this provision
shall constitute a default by Purchaser under this First Amendment in which
event Seller shall be entitled to the Downpayment, the Contract shall be
terminated and Seller shall (notwithstanding any other provisions of this First
Amendment or the Contract) be entitled to such remedies as are available in law
or equity.
K. Time is of the essence hereunder.
[signature page(s) follow]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
First Amendment as of the date first hereinabove written.
OLP Chula Vista Corp., as Seller OLP Roanoke, LLC, as Seller
Tax ID # Tax ID #
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By: By:
------------------------------- ---------------------------
Its: [Member/Manager]
Print Name:
---------------------- By:
---------------------------
Title: Print Name:
--------------------------- -------------------
Title:
------------------------
OLP Norwalk LLC, as Seller OLP Henrietta, LLC, as Seller
Tax ID # Tax ID #
------------------------- ----------------------
By: By:
------------------------------- ---------------------------
Its: [Member/Manager] Its: [Member/Manager]
By: By:
------------------------- --------------------------
Print Name: Print Name:
----------------- -------------------
Title: Title:
---------------------- -----------------------
OLP Austell LLC, as Seller OLP Lubbock Venture Limited
Partnership, as Seller
Tax ID # Tax ID #
------------------------ ---------------------
By: ---------------------------- By:
--------------------------
Its: [Member/Manager] Its: [Member/Manager]
By: By:
------------------------ -------------------------
Print Name: Print Name:
----------------- -------------------
Title: Title:
----------------------- ------------------------
OLP Beavercreek, LLC, as Seller OLP Live Oak Limited Partnership,
as Seller
Tax ID # Tax ID #
----------------------- ---------------------
By: By:
---------------------------- -------------------------
Its: [Member/Manager] Its: [Member/Manager]
By: By:
----------------------- -------------------------
Print Name: Print Name:
---------------- -----------------
Title: Title:
---------------------- ----------------------
OLP Southlake LLC, as Seller
Tax ID #
By:
-----------------------------
Its: [Member/Manager]
By:
------------------------
Print Name:
-----------------
Title:
---------------------
One Liberty Properties, Inc., ECM Diversified Income & Growth
a Maryland corporation,solely Fund, LLC, as Purchaser
for the purpose of agreeing to Tax ID #
be responsible for any post-Closing By:
liabilities of the Sellers, -----------------------------
as provided in Subparagraph 20.N Its: [Member/Manager]
of the Contract, as such Contract
is modified hereby
By: By:
------------------------ ---------------------------
Print Name: Print Name:
----------------- --------------------
Title: Title:
--------------------- ------------------------
Schedule 2 to First Amendment
Not provided
First Amended Schedule A-6
Not provided
Exhibit 10.2
AMENDMENT TO CONTRACT OF SALE
This AMENDMENT TO CONTRACT OF SALE (this "Amendment") is made and
entered into as of the 26th day of July, 2006 by and among OLP Chula Vista Corp.
("OLP Chula Vista"), OLP Norwalk LLC ("OLP Norwalk"), OLP Austell ("OLP
Austell"), OLP Beavercreek LLC ("OLP Beavercreek"), OLP Southlake, LLC ("OLP
Southlake"), OLP Roanoke, LLC ("OLP Roanoke"), OLP Lubbock Venture Limited
Partnership ("OLP Lubbock"), OLP Live Oak Limited Partnership ("OLP Live Oak")
and OLP Henrietta, LLC ("OLP Henrietta") each having an office at 60 Cutter Mill
Road, Suite 303, Great Neck, New York 11021, severally, but not jointly, the
"Seller", and ECM Diversified Income & Growth Fund, LLC, a Delaware limited
liability company, having an office at 150 North Wacker Drive, Suite 800,
Chicago, Illinois 60606, as the "Purchaser" and is an amendment to that certain
Contract of Sale among Seller and Purchaser dated June 14, 2006 (as such
Contract of Sale may have been previously amended from time to time, the
"Contract"). Capitalized terms not otherwise defined herein shall have the
meaning given to them in the Contract.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has completed some, but not all of the due
diligence it desires to complete under the Contract, and
WHEREAS, Purchaser and Seller wish to extend the Due Diligence Period
for certain matters identified by Purchaser to Seller, and
WHEREAS, each Seller wishes to sell its Respective Property and
Purchaser wishes to acquire the Premises in accordance with the terms of the
Contract as modified by this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the sufficiency of which being hereby acknowledged, the parties
hereto do hereby agree as follows:
5. Second Earnest Money Payment. Paragraph 1(B) of the Contract is hereby
modified to read as follows:
"Two Million Dollars ($2,000,000.00) on or before 5:00 p.m.
(local New York time) on July 31, 2006 as the second
installment of the nonrefundable (except as specifically set
forth herein) Downpayment (the "Second Earnest Money
Payment"), by wire transfer or other immediately available
funds payable to Escrow Agent, which sum shall be held in
escrow pursuant to the terms hereof; and"
6. Title Notices. Purchaser has timely provided notice to Seller of the
conditions to title Purchaser deems unacceptable as required under Paragraph
5(A) of the Contract. Seller has timely provided notice to the Purchaser of the
conditions that Seller will cure and others that it will not cure ("Seller
Notice"). Pursuant to Paragraph 5(A), unless Purchaser notifies Seller within
ten (10) days of Seller Notice that Purchaser will close on the purchase of the
Premises in accordance with the terms of the Contract (subject to the Seller
Notice) with no abatement or offset, the Contract will automatically terminate.
The foregoing ten (10) day period is hereby replaced by inserting the date,
August 9, 2006.
7. Due Diligence Period. Paragraph 7(B) of the Contract is hereby modified to
read as follows:
"Purchaser shall have through 5:00 p.m. (local New York time)
on August 9, 2006 (the "Due Diligence Period") to notify
Sellers' Representative of its election not to proceed with
the acquisition of the Premises, and Purchaser shall have the
right not to proceed with such acquisition for any reason
whatsoever. If Purchaser shall timely notify Sellers'
Representative of its election not to proceed with the
acquisition of the Premises, then Purchaser shall be entitled
to simultaneously with such notice terminate this Contract, in
which event the Downpayment and interest thereon shall be
returned to Purchaser and the parties shall have no other
liability to each other. If Purchaser shall fail to notify
Sellers' Representative of its desire to terminate this
Contract as aforesaid, then Purchaser shall be deemed to be
satisfied with the Premises and the contingencies set forth in
this Paragraph 7.B.
shall be deemed satisfied."
8. Closing Date. Paragraph 12(A) of the Contract is hereby modified to read as
follows:
"The parties agree that, subject to express provisions
contained herein which allow for an adjustment to the date of
Closing, the closing (the "Closing") shall occur on or before
August 16, 2006 (the "Closing Date"). The Closing shall take
place at the offices of the Escrow Agent. If Purchaser shall
have failed or been unable to close on or by the Closing Date
due to the breach of this Contract by it, then this Contract
shall terminate, neither party shall have any further
obligations to the other and Seller shall be entitled to
retain the entire Downpayment and any interest earned
thereon."
9. Miscellaneous.
A. This Amendment amends and modifies certain provisions of the Contract, and
the terms and provisions of this Amendment are hereby deemed part of the
Contract for all purposes. The parties hereby agree that the Contract has not
been rescinded, terminated or otherwise cancelled and that it remains in full
force and effect as written, except as modified hereby.
B. If any party shall be required to employ an attorney to enforce or defend the
rights of such party related to this Amendment, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs. This Paragraph 5.B
shall survive the Closing or earlier termination of the Contract.
C. This Amendment contains the complete agreement between the parties as to the
matters described herein, supersedes all prior agreements (oral or written) as
to the matters described herein and no term hereof may be waived or amended
except by the written agreement of the party to be charged by such waiver or
amendment. This Amendment has been negotiated and shall not be construed against
its drafter. The parties agree that there are no oral agreements,
understandings, representations or warranties which are not expressly set forth
herein.
D. This Amendment shall not be binding until executed and delivered by Seller
and Purchaser. Once fully executed and delivered, this Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and permitted assigns.
E. This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
F. If any provision hereof shall be deemed unenforceable, the remaining terms of
this Amendment shall be unaffected thereby and shall remain in full force and
effect.
G. The headings herein are for reference purposes only and shall not be deemed
to affect the interpretation of this Amendment.
H. SELLER AND PURCHASER HEREBY WAIVE ANY AND ALL RIGHTS THAT EITHER MAY HAVE TO
A JURY TRIAL IN RESPECT OF ANY DISPUTE CONCERNING THIS AMENDMENT OR THE
PREMISES.
I. Each Seller and Purchaser expressly understands and agrees and acknowledges
that neither party would have entered this Amendment without the express
provisions of this Subparagraph 5.I. Subject to the continuing effectiveness of
Subparagraph 20.K of the Contract, except as specifically permitted under
Subparagraph 5.J of this Amendment, in no event shall either party ever be
liable to the other party for consequential, compensatory or any other monetary
damages in respect of the matters contained in this Amendment. In addition, each
party hereby agrees that in no event shall either party make or bring any claim
for any matter whatsoever against any member, shareholder, partner, officer,
director, trustee, employee, agent, representative or counsel of or for the
other party. Each party acknowledges that it agrees to this 5.I and that it has
consulted with counsel of its own choosing in so agreeing. This Subparagraph 5.I
shall survive the Closing or earlier termination of the Contract.
J. Purchaser understands and agrees that it shall not be permitted to record
this Amendment or a memorandum hereof and any breach of this provision shall
constitute a default by Purchaser under this Amendment in which event Seller
shall be entitled to the Downpayment, the Contract shall be terminated and
Seller shall (notwithstanding any other provisions of this Amendment or the
Contract) be entitled to such remedies as are available in law or equity.
K. Time is of the essence hereunder.
[signature pages to follow]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first hereinabove written.
OLP Chula Vista Corp., as Seller OLP Roanoke, LLC, as Seller
Tax ID # 20-0875446 Tax ID # 11-3637745
By: By:
---------------------------- -----------------------------
Richard M. Figueroa Richard M. Figueroa
Title: Vice President Title:Vice President of the Sole
Member of its Sole Member's Manager
OLP Norwalk LLC, as Seller OLP Henrietta, LLC, as Seller
Tax ID # 11-3637745 Tax ID # 04-3705309
By: By:
------------------------- -----------------------------
Richard M. Figueroa Richard M. Figueroa
Title: Vice President of the Sole Title: Vice President of the Sole
Member of its Sole Member's Manager Member of its Sole Member's Manager
OLP Austell LLC, as Seller OLP Lubbock Venture Limited
Tax ID # 11-3637745 Partnership, as Seller
Tax ID #20-0663194
By: By:
---------------------------- ----------------------------
Richard M. Figueroa Richard M. Figueroa
Title: Vice President of the Sole Title: Vice President of its
Member of its Sole Member's Manager General Partner
OLP Beavercreek, LLC, as Seller OLP Live Oak Limited Partnership,
as Seller
Tax ID # 11-3637745 Tax ID # 20-0663258
By: By:
---------------------------- ------------------------------
Richard M. Figueroa Richard M. Figueroa
Title: Vice President of the Sole Title: Vice President of its
Member of its Sole Member's Manager General Partner
OLP Southlake LLC, as Seller
Tax ID # 11-3637745
By:
-----------------------------
Richard M. Figueroa
Title: Vice President of the Sole
Member of its Sole Member's Manager
One Liberty Properties, Inc., ECM Diversified Income & Growth
a Maryland corporation,solely Fund, LLC, as Purchaser
for the purpose of agreeing to Tax ID #20-1965319
be responsible for any post-Closing By:
liabilities of the Sellers, -----------------------------
as provided in Subparagraph 20.N Shelby E. L. Pruett
of the Contract, as such Contract
is modified hereby Title: Managing Principal
By:
------------------------
Richard M. Figueroa
Title: Vice President
Exhibit 99.1
ONE LIBERTY PROPERTIES, INC.
60 Cutter Mill Road - Suite 303
Great Neck, New York 11021
www.onelibertyproperties.com
Telephone 516.466.3100
Telecopier 516.466.3132
DUE DILIGENCE PERIOD IN CONTRACT TO SELL
NINE MOVIE THEATER PROPERTIES IS EXTENDED
Great Neck, New York - July 31, 2006 - One Liberty Properties, Inc.
(NYSE:OLP) announced that the due diligence period set forth in a contract
entered into by two joint ventures of OLP (in which OLP holds a 50% equity
interest) to sell eight properties to a single buyer, and by a wholly-owned
subsidiary of OLP to sell one property to the same buyer, has been extended
through August 9, 2006. On June 16, 2006 (revised June 19, 2006) the Company
announced that it had entered into this agreement. The Company previously
announced that the buyer may terminate the contract within the due diligence
period, for any reason. The closing is conditioned upon the satisfaction, at or
prior to closing, of specific terms and conditions and delivery of specific
documents, as is customary in transactions of this type. No other material terms
of the agreement have been modified. Because of the continuing right of the
Buyer to terminate the agreement there can be no assurance that this transaction
will be consummated.
One Liberty is a New York-based REIT that specializes in the
acquisition and ownership of a diverse portfolio of real estate properties under
long term net leases. One Liberty's leases generally provide for contractual
rent increases with all operating expenses and most or all other property
related expenses paid by the tenant. For more information on One Liberty, please
visit our website at www.onelibertyproperties.com.
Caution Concerning Forward-Looking Statements: Materials included in
this filing may contain "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors that
could cause actual results to be materially different from historical results or
from any future results expressed or implied by such forward-looking statements.
Statements that include the words "may," "will," "would," "could," "should,"
"believes," "estimates," "projects," "potential," "expects," "plans,"
"anticipates," "intends," "continues," "forecast," "designed," "goal," or the
negative of those words or other comparable words should be considered uncertain
and forward-looking.
Contact: Mark Lundy - 516.466.3100