EXHIBIT 2.12
SECOND AMENDMENT TO
CONTRIBUTION AGREEMENT
BY AND AMONG
EIG OPERATING PARTNERSHIP, L.P.
AND
EXCEL REALTY PARTNERS, L.P.
Dated as of December 9, 2002
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
This SECOND AMENDMENT TO CONTRIBUTION AGREEMENT (this "Agreement"),
dated as of December 9, 2002 by and among EIG Operating Partnership, L.P., a
Delaware limited partnership ("Seller") and Excel Realty Partners, L.P., a
Delaware limited partnership ("Purchaser").
RECITALS:
A. Seller and Purchaser entered into that certain Contribution
Agreement dated as of October 17, 2002 (as 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 By executing this Agreement on behalf of Purchaser, New Plan DRP
Trust, the sole general partner of Purchaser, hereby acknowledges that due to a
scrivener's error its name was reflected improperly in both (a) the Contribution
Agreement (including, without limitation, in Section 5.7(f)(i) thereof) and (b)
the First Amendment thereto dated as of November 6, 2002, as "New Plan Excel DRP
Trust." The parties agree that all references to "New Plan Excel DRP Trust" in
the Contribution Agreement, the First Amendment thereto, and any other documents
related to the closing of the transactions contemplated thereby, shall be
modified so as to read "New Plan DRP Trust."
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.
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: EIG Realty, Inc., its general partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
EXCEL REALTY PARTNERS, L.P.
By: New Plan DRP Trust, its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
New Plan Excel Realty Trust, Inc. joins in this Agreement to irrevocably and
unconditionally guarantee the performance by Purchaser of all of Purchaser's
obligations under this Agreement (including, without limitation, all
performance, indemnification and payment obligations of Purchaser) as same may
be further amended from time to time:
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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