EXHIBIT 2.9
CLOSING DAY AMENDMENT TO
PURCHASE AGREEMENT
BY AND AMONG
EIG OPERATING PARTNERSHIP, L.P.
AND
NEW PLAN EXCEL REALTY TRUST, INC.
Dated as of December 12, 2002
CLOSING DAY AMENDMENT TO PURCHASE AGREEMENT
This CLOSING DAY AMENDMENT TO PURCHASE AGREEMENT (this "Agreement"), dated
as of December 12, 2002 by and among EIG Operating Partnership, L.P., a Delaware
limited partnership ("Seller") and New Plan Excel Realty Trust, Inc., a Maryland
corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser entered into that certain Purchase Agreement
dated as of October 17, 2002 (as heretofore amended, the "Purchase Agreement").
B. The parties hereto desire to modify certain terms of the Purchase
Agreement.
NOW THEREFORE, in consideration of the terms, covenants and conditions
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
agree as follows:
I. AMENDMENTS
1.1 The definition of the term "Assumed Indebtedness" in the Purchase
Agreement is hereby modified to mean the Indebtedness with respect to the
Properties under the Purchase Agreement described on Schedule 1.1 attached
hereto and made a part hereof.
1.2 Seller agrees that, upon Purchaser's payment in full of any promissory
note made and issued pursuant to Section 2.2 of the Purchase Agreement, Seller
shall promptly cancel said note and return the same to Purchaser. The provisions
of this Section shall survive the Closing.
1.3 The following sentence shall be added to the end of Section 2.4(d):
"In the event of a real estate tax re-assessment relating to a year prior to the
year in which the Closing Date occurs (a "PRIOR YEAR"), whether arising by
reason of a tax appeal, certiorari proceeding or otherwise, which re-assessment
increases the amount of taxes due in respect of such Prior Year, then any such
increase in taxes shall be treated as an unpaid amount under this Section 2.4(d)
and Purchaser shall be given a credit for such amount as part of the Final
Closing Adjustment. The obligations of Seller under the immediately preceding
sentence will survive until the date of the Final Closing Adjustment. Purchaser,
with respect to any amount that Seller must pay to Purchaser pursuant to this
provision, shall use commercially reasonable efforts to collect any amounts
payable toward such tax xxxx increases or assign its rights to collect the same
from tenants under their leases."
1.4 Section 8.5(c)(iv) of the Purchase Agreement is hereby modified by
inserting the following as the last sentence thereof: "In the event that the
parties hereto cannot obtain the applicable lender's consent to Seller's
assumption of the Indebtedness encumbering Arvada Plaza, then Purchaser shall
prepay said Indebtedness and Seller and Purchaser shall bear any costs and
expense associated with such prepayment (other than the principal balance and
accrued interest) equally."
1.5 Section 11.6 of the Purchase Agreement is hereby modified by replacing
the reference to Section "8.5(a)" in the last sentence thereof with a reference
to Section "8.5".
1.6 Seller hereby guaranties all of the post-closing obligations (the
"OBLIGATIONS") of RIG Xxxx River Commons, LLC, RIG Hilltop Plaza, LLC, RIG
Paradise Pavilion, LLC and RIG Normandy Square, LLC, each of which is a Delaware
limited liability company under common control with Seller (collectively, "RHINO
SELLER"), pursuant to that certain Purchase Agreement dated October 17, 2002
between Rhino Seller (which RIG Normandy Square, LLC joined into) and Purchaser
(as amended, the "RHINO AGREEMENT"). In furtherance of the foregoing guaranty,
Purchaser shall be entitled to use the security held in escrow in accordance
with Section 11.7 of the Purchase Agreement and the terms of the Closing Escrow
Agreement to satisfy such Obligations subject to the limitations set forth in
the Rhino Agreement.
1.7 Notwithstanding anything to the contrary in Section 12.9 of the
Purchase Agreement, to the extent that any lenders are being provided with new
title policies instead of endorsements to their existing title policies,
Purchaser and Seller shall split the cost of same; provided, however, that
Seller's maximum liability in respect of such new policies shall be $37,500.00
under all Sale Agreements.
II. MISCELLANEOUS
2.1 DEFINED TERMS: All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Purchase Agreement. The term
"this Agreement" in the Purchase Agreement shall be deemed to be the Purchase
Agreement and all amendments thereto.
2.2 ADMINISTRATION AND INTERPRETATION: The administration provisions,
including, without limitation, the notice, governing law, and counterparts
provisions of the Purchase Agreement are incorporated herein.
2.3 EXHIBITS AND SCHEDULES: The Recitals to this Agreement and the
Exhibits and Schedules attached hereto are hereby incorporated by reference into
the body of this Agreement and made a part hereof.
2.4 AMENDMENT: Except as specifically herein set forth, all of the terms,
covenants and conditions of the Purchase Agreement shall remain unmodified, in
full force and effect and shall be binding upon the parties hereto and their
respective successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers thereunto duly authorized all as of the date first
written above.
EIG OPERATING PARTNERSHIP, L.P.
By: HK Holdings, LLC, its sole general partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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