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EXHIBIT 99.12
SECOND AMENDMENT TO
AUGUST 25, 1998 AMENDED AND RESTATED AGREEMENT
AND PLAN OF MERGER
This Second Amendment to August 25, 1998 Amended and Restated Agreement
and Plan of Merger (the "SECOND AMENDMENT") is entered into as of June 4, 1999,
by and among American Realty Trust, Inc. ("ART"), ART Newco, LLC ("NEWCO"),
Basic Capital Management, Inc. ("BCM"), EQK Realty Investors I ("EQK") and Lend
Lease Portfolio Management, Inc. ("LLPM").
R E C I T A L S:
A. ART, Newco, BCM, EQK and LLPM entered into that certain Amended and
Restated Agreement and Plan of Merger, dated August 25, 1998, as amended by that
certain First Amendment to August 25, 1998 Amended and Restated Agreement and
Plan of Merger, dated as of April 22, 1999 (as so amended, the "MERGER
AGREEMENT") relating to the Merger, as such term is defined in the Merger
Agreement.
B. ART, Newco, BCM, EQK and LLPM desire to amend the Merger Agreement
as set forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendment to Section 6.02(o) of the Merger Agreement. Section
6.02(o) of the Merger Agreement is hereby amended by replacing the entire
paragraph with the word "Intentionally Omitted", so that Section 6.02(o) reads
as set forth in its entirety below:
"Intentionally Omitted."
2. Amendment to Section 7.01(b) of the Merger Agreement. Section
7.01(b) of the Merger Agreement is hereby amended by replacing the date "July
30, 1999" in the first line of such section with the date "October 29, 1999", so
that Section 7.01(b) reads as set forth in its entirety below:
"by Newco or ART, on or after October 29, 1999, if any of the
conditions provided in Section 6.01 hereof have not been met or, to
the extent permitted by applicable law, have not been waived in
writing by Newco and ART prior to such date;"
3. Amendment to Section 7.01(c) of the Merger Agreement. Section
7.01(c) of the Merger Agreement is hereby amended by replacing the date "July
30, 1999" in the first line of such
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section with the date "October 29, 1999", so that Section 7.01(c) reads as set
forth in its entirety below:
"by EQK, on or after October 29, 1999, if any of the conditions
provided in Section 6.02 hereof have not been met or, to the extent
permitted by applicable law, have not been waived in writing by EQK
prior to such date;"
4. Effect of Amendment; Amendment Controls. Except as expressly stated
herein, the provisions of the Merger Agreement in effect as of the date of this
Second Amendment shall remain in full force and effect. To the extent this
Second Amendment is in conflict with any provision of the Merger Agreement, as
amended, the terms of this Second Amendment shall control.
5. Binding Effect. The amendments contained in this Second Amendment
shall inure to the benefit of the successors and assigns of the respective
parties hereto.
6. Defined Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings given to such terms in the Merger
Agreement.
7. Governing Law. This Second Amendment shall be governed by the
internal laws of the Commonwealth of Massachusetts without giving effect to the
conflict of laws principles thereof.
8. Counterparts. This Second Amendment may be signed in any number of
counterparts, each of which, when taken together, shall constitute the original.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
AMERICAN REALTY TRUST, INC.
By: /s/ A. Xxx Xxxxx, Xx.
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Name: A. Xxx Xxxxx, Xx.
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Title: Vice President
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ART NEWCO, LLC
By: American Realty Trust, Inc., as Manager
By: /s/ A. Xxx Xxxxx, Xx.
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Name: A. Xxx Xxxxx, Xx.
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Title: Vice President
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BASIC CAPITAL MANAGEMENT, INC.
By: /s/ A. Xxx Xxxxx, Xx.
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Name: A. Xxx Xxxxx, Xx.
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Title: Executive Vice President
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EQK REALTY INVESTORS I
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: President
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LEND LEASE PORTFOLIO MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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