EXHIBIT 2.2
FIRST AMENDMENT TO
PURCHASE AGREEMENT
BY AND AMONG
EIG REALTY, INC.
AND
NEW PLAN EXCEL REALTY TRUST, INC.
Dated as of November 6, 2002
FIRST AMENDMENT TO PURCHASE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Agreement"), dated as of
November 6, 2002 by and among EIG Realty, Inc., a Maryland real estate
investment trust ("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 (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 first sentence of Section 2.1 of the Purchase Agreement is
deleted in its entirety and replaced with the following: "The purchase price for
the Purchased Assets will be equal to $249,044,230, as may be adjusted in
accordance with this Section 2.1 and the other provisions of this Agreement,
including without limitation, Sections 2.4, 2.7, 3.4 (including Section 3.4(g)
with respect to Purchaser taking subject to, and paying off any, Indebtedness
that is not Assumed Indebtedness), 7.6, 7.14, 7.15, 7.16, 7.20, 7.21, 8.2, 8.3
and 10.2 (the "Purchase Price")."
1.2 The Property commonly known as BEACH BOULEVARD, 1868 Parental Home
Road at Beach Boulevard, Jacksonville, Florida, shall hereby be deemed dropped
and all of the provisions relating to a dropped Property, including Section 7.16
of the Purchase Agreement shall apply (except that Section 1.1 of this Agreement
takes into account the reduction in the Purchase Price as a result of such
Property being dropped). In addition, notwithstanding anything in the Purchase
Agreement to the contrary, such dropped Property shall NOT count as a dropped
Property for purposes of Seller's or Purchaser's right to terminate the Purchase
Agreement under Section 10.1(e) of the Purchase Agreement.
1.3 The additional Deposit shall be due within two (2) Business Day
after the expiration of the Contract Due Diligence Period.
1.4 Except to the extent that the matters set forth on SCHEDULE 1.5
attached to this Agreement are designated as covered by Section 3.4(f) of the
Purchase Agreement, the parties hereto agree that the matters on SCHEDULE 1.5
attached to this Agreement shall be deemed to be Due Diligence Title Objections
and Rejected Due Diligence Title Objections. Any title documents, zoning reports
or surveys or updates thereto that were received on or after November 4, 2002,
shall be deemed as if same were received after the expiration of the Contract
Due Diligence Period.
1.5 If the Unit Value (as defined in the Contribution Agreement) is
equal to or exceeds $20,000,000 or if Purchaser otherwise elects, Section 7.6(d)
of the Purchase Agreement (the $2,000,000 Mars Deposit) shall be deemed modified
as follows: there shall be no Mars Deposit or Mars Escrow Agreement, all of the
economic provisions and effect with respect to the Mars Deposit and the
bankruptcy of Mars Music shall be incorporated into the "Partner Schedule" (as
defined in the Contribution Agreement).
1.6 Section 2.4(e) of the Purchase Agreement (Lease Expenses) is deleted
in its entirety and replaced with the following:
(i) "2.4(e) NOI LEASES. (i) "NOI Leases" shall mean collectively,
(x) the tenant leases set forth on SCHEDULE 2.4(e) attached hereto in accordance
with the terms and conditions as set forth on SCHEDULE 2.4(e) attached hereto
and other customary terms and conditions for similar leases in the Properties
(which, except as noted on Schedule 2.4(e), shall include pro rata recoveries
for all extras and expenses) and (y) a lease first entered into after the date
of the First Amendment to this Agreement to a different Tenant than as set forth
on Schedule 2.4(e) attached hereto, provided (i) such Tenant is reasonably
acceptable to Purchaser, (ii) such Tenant's use shall not violate any exclusive
or other use restriction granted to another Tenant at the same Property the
proposed lease is for, (iii) such Tenant is not currently a Tenant at the
Property in question, except for expansions of existing Tenant's leasehold
interest and then only to the extent of the additional NOI resulting therefrom,
(iv) such Tenant shall have a credit rating (or otherwise creditworthy) as
reasonably acceptable to Purchaser and (v) such lease shall have a lease term of
not less than three years and shall otherwise contain other customary terms and
conditions for similar leases in the Properties (which shall include pro rata
recoveries for all extras and expenses), and (z) any other tenant lease approved
by Purchaser, in its sole discretion, as an NOI Lease between the date hereof
and the Closing Date. Prior to Closing, Seller shall and shall cause its
Subsidiaries to endeavor with due diligence and in good faith to execute all NOI
Leases in clause (x) above pursuant to the terms set forth on SCHEDULE 2.4(e)
attached hereto. If the annual base rent (exclusive of recoveries and extras)
from the NOI Leases under all Sale Agreements that are in full force and effect
(the "In Place NOI Lease Amount") at Closing is less than the total annualized
base rent for the tenants listed on Schedule 2.4(e) (the "Target Amount", which
assuming no Property that is on SCHEDULE 2.4(e) attached hereto is dropped shall
be $667,727 and only if a Property on SCHEDULE 2.4(e) attached hereto is dropped
shall it be appropriately adjusted by reducing same by the allocated amount to
such dropped Property) (taking into account all NOI Leases under all Sale
Agreements) then the Purchaser shall receive a credit against the Purchase Price
in an amount (the "NOI Holdback") equal to 10 times the difference (without
duplication under any Sale Agreement) of the Target Amount less the In Place NOI
Lease Amount at Closing. In the event the In Place NOI Lease Amount is less than
the Target Amount as of the Closing, Seller shall deliver to the Purchaser, at
the Closing, a "NOI Lease Prospect Schedule" which shall identify specific
vacancies at specific Properties and the then existing prospects for such
vacancies which comply with clause (x) or (y) above, for which and to whom
Seller shall have the right to continue to market on a non-exclusive basis for
the period not to exceed 90 days following Closing. Seller shall provide to
Purchaser on or before 100 days after the Closing a written schedule of the NOI
Leases that are executed between the Closing and the 90th day thereafter, or
such earlier date that the In Place NOI Lease Amount equals the Target Amount,
and Purchaser shall pay to Seller within two (2) Business Days an amount (when
aggregated under all Sale Agreements) equal to (but not greater than the
aggregate
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amount of the NOI Holdback under all Sale Agreements) 10 times the annual base
rent (exclusive of recoveries and extras) of all NOI Leases entered into after
the Closing that are in full force and effect on the first to occur of (i) the
date of Seller's written schedule or (ii) the 90th day after the closing ((i) or
(ii), as applicable, the "Adjustment Date"), less the Lease Expenses paid or
required to be paid by Purchaser or incurred by Purchaser in respect of such NOI
Leases entered into after the Closing and less the 2003 Rent Credit Adjustment
(however, if such amount is negative then it will be plus such amount). No Lease
shall be deemed to be a NOI Lease if it replaces a vacancy at any Property which
was not vacant as of the date of the First Amendment to this Agreement and no
Lease entered into after Closing shall be an NOI Lease if it was not on the NOI
Lease Prospect Schedule and does not otherwise comply with the requirements to
be an NOI Lease.
(ii) In addition Purchaser shall receive a credit against the
Purchase Price at Closing in the amount of the 2003 Rent Credit calculated with
respect to all NOI Leases in full force and effect as of the Closing.
(iii) The following terms are defined for use in this Agreement:
(A) The "Percentage Amount" is determined by dividing the
2003 Base Amount by the Target Amount;
(B) The "Total 2003 Base Amount That Should Be Obtained" is
determined by multiplying the Percentage Amount by the In Place NOI
Lease Amount (as of the date of such calculation);
(C) The "2003 Rent Credit" is determined by subtracting from
the Total 2003 Base Amount That Should Be Obtained the total base
rent (exclusive of recoveries and extras) for all NOI Leases (in
place at the time of such calculation) to be paid during calendar
year 2003, but such amount shall never be less than Zero;
(D) The "2003 Rent Credit Adjustment" is determined
calculating the 2003 Rent Credit as of the Adjustment Date and
subtracting therefrom the 2003 Rent Credit credited against the
Purchase Price as of the Closing; and
(E) The "2003 Base Amount" is the total base rent (exclusive
of recoveries and extras) to be paid during calendar year 2003
assuming that each of the tenant leases set forth on SCHEDULE 2.4(e)
were to commence on the commencement date set forth for each of the
tenant leases on SCHEDULE 2.4(e) attached hereto (which assuming no
Property that is on SCHEDULE 2.4(e) is dropped shall be $601,054 and
only if a Property on SCHEDULE 2.4(e) is dropped shall it be
appropriately adjusted by reducing same by the allocated amount to
such dropped Property).
(iv) Purchaser shall receive, without duplication, a credit
against the Purchase Price for any and all Lease Expenses to the extent that
they have been incurred (or will be incurred under any signed Lease) but not
paid by Seller or the owner of the Property prior to
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Closing. Each party will make available to the other all records, bills,
vouchers and other data in such party's control verifying Lease Expenses and the
payment thereof."
In addition, the definition of "Lease Expenses" is deleted and
replaced with the following:
""Lease Expenses" means, collectively, any and all leasing commissions,
tenant improvements, allowances (including free rent), and lease buyout costs
and expenses of Seller or the Assigning Subsidiaries prior to Closing arising
out of or in connection with any Lease (whether or not they are due and payable)
and any of the same that will be incurred by Purchaser for any NOI Lease signed
after the Closing. Lease Expenses shall include, without limitation, (a)
brokerage commissions and fees payable pursuant to a commission agreement or
Lease to effect any such leasing transaction (including, without limitation, any
fees owed to an affiliated or third-party property manager or leasing agent),
(b) expenses incurred for repairs, improvements, equipment, painting,
decorating, partitioning and other items to satisfy the tenant's requirements
with regard to such leasing transaction, and (c) expenses incurred for the
purpose of satisfying or terminating the obligations of a Tenant under a new
Lease to the landlord under another lease (whether or not such other lease
covers space in any Property)."
1.7 The NOI Leases shall be subject to the terms and conditions of
Section 6.2 of the Purchase Agreement and in addition, Seller will not, and will
cause its Subsidiaries not to, enter into any NOI Lease for any tenant space set
forth on Schedule 2.4(e) that is not on the same terms and conditions set forth
on Schedule 2.4(e) to this Agreement, whether or not same falls within the
Leasing Guidelines without Purchaser's prior written consent in each instance,
which consent will not be unreasonably withheld, delayed or conditioned.
1.8 Seller shall cause the parties to the Acknowledgement Agreement to
acknowledge this Agreement and agree that the Acknowledgment Agreement applies
to the Purchase Agreement as amended by this Agreement and that this Agreement
does not impair the rights of Purchaser under the Acknowledgement Agreement or
the Redemption Agreement or reduce the obligations of the parties other than
Purchaser to Purchaser under the Acknowledgement Agreement and the Redemption
Agreement (except to the extent same are modified by this Agreement).
1.9 All reductions in Purchase Price shall be allocated to the Property
that such adjustment or credit was applicable to.
1.10 Section 12.6 of the Purchase Agreement is hereby amended to change
"20 days" and "45 days" to "10 days." In addition, Seller acknowledges that a
1031 Transaction may include a Person taking title to some or all of the
Purchased Assets that is not an Affiliate of Purchaser and same is expressly
permitted and such Person may be designated within such 10 day period.
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.
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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 REALTY, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman
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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