Exhibit 1.3
SECOND AMENDMENT TO AGREEMENT TO PURCHASE REAL ESTATE
This Second Amendment to Agreement to Purchase Real Estate ("Second
Amendment") is made this 26th day of September, 2002, by and between Glimcher
Properties Limited Partnership, a Delaware limited partnership ("Seller"),
having offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and 20/20
Management Company, Inc. ("Purchaser"), having offices at 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000.
WHEREAS, Seller and Purchaser have entered into that certain Agreement
to Purchase Real Estate dated June 6, 2002, as amended by First Amendment to
Agreement to Purchase Real Estate dated August 29, 2002 ("First Amendment")
(collectively, the "Purchase Agreement"); and
WHEREAS, Seller and Purchaser have agreed to amend the Purchase
Agreement in accordance with the terms and conditions of this Second Amendment.
NOW THEREFORE, Seller and Purchaser, in consideration of the mutual
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by Seller and Purchaser,
hereby agree to amend the Purchase Agreement as follows:
1. Capitalized terms not otherwise defined in this Second
Amendment shall have the meanings therefor set forth in the
Purchase Agreement.
2. Seller and Purchaser understand that Existing Lender Xxxxxxx
National Life Insurance Company ("Xxxxxxx") has agreed or will
agree to the pay-off of Xxxxxxx'x Existing Loan based on the
payment of a prepayment premium or yield maintenance for the
balance of the outstanding principal balance (less five
percent (5%) of the outstanding principal balance) based upon
the yield of the comparable Treasury index, plus 275 basis
points ("Yield Maintenance"), and on such other terms as may
be set forth in a letter agreement or other document signed by
Xxxxxxx and approved by both Seller and Purchaser (the "Payoff
Letter"). Seller and Purchaser agree that no rights shall be
exercised under the Payoff Letter, and no modifications shall
be made thereto, that would, in either case, adversely affect
Purchaser, without the consent of both Seller and Purchaser.
3. Seller and Purchaser agree to share the cost of the Yield
Maintenance at Closing as follows: (a) if the Yield
Maintenance is exactly $7,262,860.00, Purchaser agrees to pay
the amount of Five Million Nine Hundred Thousand Dollars
($5,900,000.00); and Seller agrees to pay the amount of One
Million Three Hundred Sixty-two Thousand Eight Hundred Sixty
Dollars ($1,362,860.00); (b) if the Yield Maintenance is less
than $7,262,860.00, Purchaser shall pay $5,900,000.00 minus
88.63% of the savings (i.e., the amount by which the actual
Yield Maintenance is less than $7,262,860.00), and Seller
shall pay $1,362,860.00 minus 11.37% of the savings; and (c)
if the Yield
Maintenance is more than $7,262,860.00, (i) each party shall
pay at least the amount specified in clause (a), and (ii) the
excess amount of Yield Maintenance shall be paid by the
parties in such proportions as they may agree, and if they
cannot agree, by the Closing Date set forth in Section 4
below, on the payment of the excess amount of the Yield
Maintenance, either party may terminate the Purchase Agreement
at any time thereafter (whereupon all Deposits then being held
by the Escrow Agent will be refunded to Purchaser), it being a
condition to both parties' obligation to Close on the
Remaining Properties that their respective shares of the Yield
Maintenance not exceed the amounts set forth in clause (a) of
this Section 3. Subject to the provisions of Sections 7 and 8
of this Second Amendment, Seller and Purchaser agree to Close
if, on the Closing Date as established by this Second
Amendment, the Yield Maintenance does not exceed Seven Million
Two Hundred Sixty-two Thousand Eight Hundred Sixty Dollars
($7,262,860.00).
4. The Closing Date shall be the earlier of: (a) the date set
forth therefor in the Purchase Agreement, as amended hereby;
or (b) such earlier date as is requested by Purchaser.
5. Purchaser may extend the Closing Date for the Remaining
Properties from September 30, 2002, to October 31, 2002, by
giving written notice to Seller, and depositing with the
Escrow Agent an additional Deposit in the amount of One
Million Dollars ($1,000,000.00), on or before September 30,
2002. If Closing on the Remaining Properties does not occur by
October 31, 2002, then, unless extended by Purchaser as set
forth in Section 6 of this Second Amendment, the Purchase
Agreement shall automatically terminate without further
obligation of either party, and all Deposits then being held
by the Escrow Agent will be refunded to Purchaser.
6. If Purchaser extends the Closing Date as provided in Paragraph
5 of this Second Amendment, and the Closing does not occur on
or before October 31, 2002, then Purchaser may extend the
Closing Date from October 31, 2002, to November 30, 2002, by
giving written notice to Seller, and depositing with the
Escrow Agent an additional Deposit in the amount of Five
Hundred Thousand Dollars ($500,000.00), on or before October
31, 2002. If Closing on the Remaining Properties does not
occur by November 30, 2002, the Purchase Agreement shall
automatically terminate without further obligation of either
party, and all Deposits then being held by the Escrow Agent
will be refunded to Purchaser.
7. If Xxxxxxx refuses to allow a prepayment of the Xxxxxxx Loan
as provided in Section 2 of this Second Amendment, Purchaser
will be entitled to terminate the Purchase Agreement, in which
event both parties shall be relieved of any further obligation
thereunder, and all Deposits then being held by the Escrow
Agent will be refunded to Purchaser.
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8. Notwithstanding any other provision of this Agreement to the
contrary, Purchaser will be entitled to terminate this
Agreement, and receive a refund of the Deposits then held by
the Escrow Agent, in the event it is unable to obtain
financing of the purchase price of the Remaining Properties
("Purchaser's New Financing") on terms reasonably satisfactory
to Purchaser, on or before the Closing Date. In such event,
both parties shall be relieved of any further obligation under
the Purchase Agreement.
9. In addition to the methods for giving notice set forth in the
Purchase Agreement, any notice required or permitted under
this Second Amendment may be given by facsimile or e-mail to
the fax numbers or e-mail addresses set forth below.
10. Except as expressly modified herein, the terms and conditions
of the Purchase Agreement remain in full force and effect.
11. This Second Amendment shall inure to the benefit of and be
binding upon the parties hereto, and their successors and
assigns.
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the
date set forth in the first paragraph of this Agreement.
SELLER: ADDRESSES:
GLIMCHER PROPERTIES 00 Xxxxx Xxxxx Xxxxxx
XXXXXXX XXXXXXXXXXX Xxxxxxxx, Xxxx 00000
a Delaware limited partnership Fax: 000-000-0000
E-mail: xxxxxxxx@xxxxxxxx.xxx
By: Glimcher Properties Corporation,
a Delaware corporation
its general partner
By: \s: Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President
With a copy to: 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Glimcher Properties Limited Partnership Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx E-mail: xxxxxxxx@xxxxxxxx.xxx
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PURCHASER:
20/20 Management Company, Inc., 10210 N. Central Expressway
a Texas corporation Xxxxx 000, Xxxxxxx 00
Xxxxxx, Xxxxx 00000
By: \s: Xxxxxxxx X. Xxxxxxxx Fax: 000-000-0000
----------------------------
Xxxxxxxx X. Xxxxxxxx E-mail: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
Vice President
WITH COPY TO:
J. Xxxxxx Xxxxxxxx
XxXxxxx, Xxxxxxxx & Xxxxxxxx, P.C.
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
E-mail: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
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