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EXHIBIT 2.4
CLOSING DATE AMENDMENT TO AGREEMENT FOR PURCHASE OF
REAL ESTATE AND RELATED PROPERTY
THIS CLOSING DATE AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL
ESTATE AND RELATED PROPERTY (this "Amendment") is made and entered into as of
the 21st day of September, 2001, by and between New Plan Excel Realty Trust,
Inc. ("Seller"), a Maryland corporation having offices at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxxxxx-Koenmen LLC ("Purchaser"), a
Delaware limited liability company having offices at c/o Xxxxxxxx-Xxxxxx
Realtors, LLC, Xxx Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
RECITALS
A. Seller and Purchaser have entered into that certain
Agreement for Purchase of Real Estate and Related Property dated as of May 10,
2001 (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 Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. REALLOCATION OF PURCHASE PRICE AND RELEASE PRICES
Exhibit A to the Purchase Agreement is hereby amended and
restated in its entirety as set forth on Exhibit A attached hereto.
2. TRANSFER TAXES
Notwithstanding anything to the contrary contained in Section
5(D) of the Purchase Agreement, (i) Purchaser and Seller shall split equally any
and all real estate excise or transfer taxes (or reimburse the other if
applicable) incurred in connection with the transfer of the Properties or the
Interests at Closing based on the Allocated Purchase Price set forth in the
Purchase Agreement prior to this Amendment for each Property that is closed upon
and (ii) Purchaser shall pay any and all real estate excise or transfer taxes
(or reimburse Seller if applicable) incurred in connection with the transfer of
the Properties or the Interests at Closing which directly resulted from the
reallocation of the Purchase Price set forth on Exhibit A to this Amendment or
as a result of doing a fee transfer for Woodbridge Apartments. The provisions of
this Paragraph shall survive the Closing or any earlier termination of the
Purchase Agreement.
3. MEZZANINE FINANCING
(A) The letter of credit option has been chosen by Purchaser
pursuant to Section 16 of the Purchase Agreement. Notwithstanding anything to
the contrary contained in such Section 16, the aggregate amount of the letter(s)
of credit to be provided by Seller under the Mezzanine Loan Documents may be
reduced to an amount less than $35,000,000, so long as
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Purchaser's monetary obligations to Seller under the Mezzanine Loan Documents
are calculated as if Seller had provided letter(s) of credit in the aggregate
amount of $35,000,000.
(B) Notwithstanding anything to the contrary contained in
Section 5(B)(i)(n) of the Purchase Agreement, the term "Mezzanine Loan
Documents" shall have the meaning ascribed thereto in the Pledge and Security
Agreement executed as of the date hereof by and among Xxxxxxxx-Fifty Three LLC,
Kings Mountain IV, L.P. and Seller.
4. CLOSING STATEMENT
Each of Purchaser's designees pursuant to Section 13(B) of the
Purchase Agreement that joins the Purchase Agreement, appoints and authorizes
Xxxxxxxx-Koenmen LLC to execute on their behalf the closing statement of
prorations and adjustments prepared in connection with the Closing and any
closing escrow agreement.
5. MOHAWK GARDEN APARTMENTS
In connection with Seller's closure of the USTs at the Mohawk
Property under Section 3(I) of the Purchase Agreement, Seller shall, at Seller's
cost and expense, promptly remove (in accordance with all applicable laws) the
monitoring xxxxx with respect to the USTs at the Mohawk Property; provided,
however, (x) Purchaser shall grant, or cause to be granted to, Seller and its
agents, representatives, contractors and their subcontractors access rights to
the Mohawk Property equivalent to the access rights that Seller has granted to
Purchaser in Section 13(A)(i), (ii) and (iii) of the Purchase Agreement and (y)
Purchaser shall, at Seller's sole cost and expense, cooperate, or cause its
successors and assigns to cooperate, with such parties in achieving the removal
of the monitoring xxxxx. The provisions of this Section 5 shall survive Closing.
6. MISCELLANEOUS
(A) 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.
(B) Administration and Interpretation: The administration
provisions, including, without limitation, the notice, governing law, and
counterparts provisions of the Purchase Agreement are incorporated herein.
Xxxxxxxx-Koenmen LLC shall have the right and Seller can rely upon any notice
given by Xxxxxxxx-Koenmen LLC on behalf of any Purchaser. Any notice given to
Xxxxxxxx-Koenmen LLC shall be deemed given to all Purchasers.
(C) Exhibits: The Recitals to this Agreement and the
Exhibits attached hereto are hereby incorporated by reference into the body of
this Amendment and made a part hereof.
(D) 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 hereto have executed this
Amendment as of the day and year first above written.
SELLER:
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Date:
PURCHASER:
XXXXXXXX-KOENMEN LLC
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Manager
Date:
By: /s/ XXXXX XXXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxxx
Title: Manager
Date:
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