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EXHIBIT 2.2
[Club Sales Contract Amendment]
AMENDMENT TO AGREEMENT FOR PURCHASE OF
REAL ESTATE AND RELATED PROPERTY
THIS AMENDMENT TO AGREEMENT FOR PURCHASE OF REAL ESTATE AND
RELATED PROPERTY (this "Agreement") is made and entered into as of the 30th day
of July, 2001, by and among 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 Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. THE CLUB APARTMENTS
(A) Purchaser hereby consents to Seller causing its
Affiliate to enter into that certain Real Estate Sales Contract (the "Club Sales
Contract") for the sale of the Club Apartments by New Plan Realty of Alabama,
Inc. ("NPA"), an Alabama corporation, to the Homewood City Board of Education, a
copy of which is attached hereto.
(B) Notwithstanding anything in the Purchase Agreement to
the contrary, the following shall apply with respect to the Club Apartments:
(i) IF THE CLOSING UNDER THE CLUB SALES CONTRACT
OCCURS ON OR PRIOR TO THE CLOSING DATE FOR THE PROPERTIES THAT ARE NOT DROPPED
PROPERTIES (THE "MAIN CLOSING"), THEN:
(a) Purchaser shall receive a credit against
the Purchase Price at the Main Closing in the amount of the Net Proceeds for the
Club Sale, the Purchase Price shall not otherwise be adjusted due to the fact
that the Club Apartments was not transferred to Purchaser and any Allocated
Xxxxxxx Money for the Club Apartments shall be delivered to Seller at the Main
Closing, at which time the obligations of Purchaser and Seller with respect to
the closing on the Club Apartments under the Purchase Agreement shall be deemed
satisfied.
(b) The phrase "Net Proceeds for the Club
Sale" shall mean the following:
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1) The gross amount received under the Club
Sales Contract after all adjustments and
prorations under the Club Sales Contract;
2) less all reasonable out-of pocket costs
and expenses (including without limitation,
reasonable attorneys' fees, transfer taxes and
disbursements) incurred by Seller and NPA in
connection with the sale of the Club Apartments
under the Club Sales Contract (specifically
excluding the costs associated with the
preparation and negotiation of the Purchase
Agreement and this Agreement), which costs and
expenses shall not exceed Twenty Five Thousand
Dollars ($25,000), and
3) less the Defeasance Costs (as defined
below), if any, not otherwise previously
reimbursed pursuant to Section 1(B)(iv) hereof.
(ii) IF THE CLUB SALES CONTRACT IS TERMINATED ON OR
PRIOR TO THE MAIN CLOSING AND:
(a) IF SUCH TERMINATION WAS OTHER THAN
BECAUSE (x) SELLER TERMINATED THE CLUB SALES CONTRACT WITHOUT THE CONSENT OF
PURCHASER AS REQUIRED UNDER SECTION 1(B)(iv)(e) OF THIS AGREEMENT OR (y) SUCH
CLUB SALES CONTRACT WAS TERMINATED BY THE OTHER PARTY THERETO AS A RESULT OF A
WILLFUL DEFAULT BY NPA THEREUNDER (WHICH ACTION OR OMISSION WAS UNDER THE
CONTROL OF NPA) (IF THE CLUB SALES CONTRACT IS TERMINATED OTHER THAN AS SET
FORTH IN (x) OR (y) IT SHALL BE DEEMED "DULY TERMINATED"), THEN:
1) Seller shall promptly give Purchaser
notice that the Club Sales Contract has been
terminated (the "Termination Notice"),
2) The closing under the Purchase Agreement
with respect to the Club Apartments shall be
adjourned until the later of (x) the Main
Closing and (y) 60 days after Termination Notice
is received by Purchaser, and the Closing Date
with respect to the Club Apartments, if after
the Main Closing, shall be on a day that
Xxxxxxxx-Koenmen LLC and Seller mutually agree
upon but not later than such 60th day or if not
a business day on the business day after such
60th day,
3) If the closing with respect to the Club
Apartments is not contemporaneous with the Main
Closing, the Escrowee shall retain Xxxxxxx Money
for the Club Apartments in the amount of Seven
Hundred Fifty Thousand Dollars ($750,000),
pursuant to the terms of the Purchase Agreement,
and shall not deliver same at the Main Closing
pursuant to Section 2(B)(iv) of the Purchase
Agreement,
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4) On the Closing Date for the Club
Apartments, the closing shall take place in
accordance with the terms and conditions set
forth in the Purchase Agreement as modified
hereby, including, without limitation, the
adjustments set forth in Section 5(C) of the
Purchase Agreement,
5) If the closing with respect to the Club
Apartments is not contemporaneous with the Main
Closing, Purchaser shall receive a credit
against the Purchase Price at the Main Closing
(without duplication) in the amount of the
Allocated Release Price for the Club Apartments
and the Allocated Purchase Price for the rest of
the Properties shall be adjusted pursuant to
Section 12(A)(vi) of the Purchase Agreement,
6) The Allocated Purchase Price for the
Club Apartments at the closing on the Club
Apartments after the Main Closing shall be the
Allocated Release Price for the Club Apartments,
and
7) Purchaser's adjournment rights under
Section 5(A) of the Purchase Agreement shall not
be changed, however, the Closing Date with
respect to the Club Apartments may be after the
outside Closing Date described in such Section,
and in such event, the Closing Date with respect
to the Club Apartments determined pursuant to
this Section 1(B)(ii) shall be deemed the
original scheduled Closing for the Club
Apartments under Section 5(A) and no further
adjournment by Purchaser shall be permitted.
Seller's adjournment rights under Section 5(A)
of the Purchase Agreement shall not be changed.
(b) IF THE CLUB SALES CONTRACT IS TERMINATED
BUT NOT DULY TERMINATED, THEN SELLER SHALL PROMPTLY DELIVER THE TERMINATION
NOTICE AND PURCHASER SHALL HAVE THE RIGHT TO CHOOSE EITHER OF THE FOLLOWING
OPTIONS, BUT NOT BOTH, (x) TERMINATE THE PURCHASE AGREEMENT ONLY WITH RESPECT TO
THE CLUB APARTMENTS UPON WRITTEN NOTICE TO SELLER AND IN WHICH EVENT THE
PURCHASE AGREEMENT ONLY WITH RESPECT TO THE CLUB APARTMENTS, WITHOUT FURTHER
ACTION OF THE PARTIES, SHALL BECOME NULL AND VOID AND NEITHER PARTY SHALL HAVE
ANY FURTHER RIGHTS OR OBLIGATIONS UNDER THE PURCHASE AGREEMENT WITH RESPECT TO
THE CLUB APARTMENTS, EXCEPT FOR THE FOLLOWING, WHICH SHALL SURVIVE SUCH
TERMINATION: (i) THE RETURN OF THE ALLOCATED XXXXXXX MONEY WITH RESPECT TO THE
CLUB APARTMENTS TO THE PURCHASER, (ii) THE PROVISIONS THAT ARE EXPRESSLY STATED
TO SURVIVE THE TERMINATION OF THE PURCHASE AGREEMENT AND (iii) THE PAYMENT OF
THE LIQUIDATED DAMAGES (AS DEFINED BELOW IN SECTION 1(H)) BY SELLER TO PURCHASER
OR (y) PROCEED TO CLOSE ON THE CLUB APARTMENTS AS FOLLOWS:
1) The closing under the Purchase Agreement
with respect to the Club Apartments shall be
adjourned until the later of (x) the Main
Closing and (y) 60 days after Termination Notice
is received
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by Purchaser, and the Closing Date with respect
to the Club Apartments, if after the Main
Closing, shall be on a day that Xxxxxxxx-Koenmen
LLC and Seller mutually agree upon but not later
than such 60th day or if not a business day on
the business day after such 60th day,
2) On the Closing Date for the Club
Apartments, the closing shall take place in
accordance with the terms and conditions set
forth in the Purchase Agreement as modified
hereby, including, without limitation, the
adjustments set forth in Section 5(C) of the
Purchase Agreement,
3) If the closing with respect to the Club
Apartments is not contemporaneous with the Main
Closing, the Escrowee shall retain Xxxxxxx Money
for the Club Apartments in the amount of Two
Hundred Fifty Thousand Dollars ($250,000),
pursuant to the terms of the Purchase Agreement,
and shall not deliver same at the Main Closing
pursuant to Section 2(B)(iv) of the Purchase
Agreement,
4) If the closing with respect to the Club
Apartments is not contemporaneous with the Main
Closing, Purchaser shall receive a credit
against the Purchase Price at the Main Closing
(without duplication) in the amount of the
Allocated Release Price for the Club Apartments
and the Allocated Purchase Price for the rest of
the Properties shall be adjusted pursuant to
Section 12(A)(vi) of the Purchase Agreement,
5) The Allocated Purchase Price for the
Club Apartments at the closing on the Club
Apartments after the Main Closing shall be the
Allocated Release Price for the Club Apartments
plus the following adjustment:
a) The Allocated Purchase Price for
the Club Apartments shall be decreased
by Seven Hundred Fifty Thousand Dollars
($750,000).
6) If the closing on the Club Apartments
occurs contemporaneously with the Main Closing,
the Purchase Price at the Main Closing shall be
subject to the following adjustment:
a) The Purchase Price shall be
decreased by Seven Hundred Fifty
Thousand Dollars ($750,000).
7) Purchaser's adjournment rights under
Section 5(A) of the Purchase Agreement shall not
be changed, however, the Closing Date with
respect to the Club Apartments may be after the
outside
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Closing Date described in such Section, and in
such event, the Closing Date with respect to the
Club Apartments determined pursuant to this
Section 1(B)(ii) shall be deemed the original
scheduled Closing for the Club Apartments under
Section 5(A) and no further adjournment by
Purchaser shall be permitted. Seller's
adjournment rights under Section 5(A) of the
Purchase Agreement shall not be changed.
(iii) IF THE CLOSING UNDER THE CLUB SALES CONTRACT
DOES NOT OCCUR ON OR PRIOR TO THE MAIN CLOSING AND IF THE CLUB SALES CONTRACT IS
NOT TERMINATED ON OR PRIOR TO THE MAIN CLOSING, THEN:
(a) The closing under the Purchase Agreement
with respect to the Club Apartments shall be adjourned until the earlier of the
closing under the Club Sales Contract and 60 days after the date on which the
Termination Notice is received by Purchaser (in which such event the Closing
Date with respect to the Club Apartments shall be on a day that Xxxxxxxx-Koenmen
LLC and Seller mutually agree upon but not later than such 60th day or if not a
business day on the business day after such 60th day),
(b) The Escrowee shall retain Xxxxxxx Money
for the Club Apartments in the amount of Seven Hundred Fifty Thousand Dollars
($750,000), pursuant to the terms of the Purchase Agreement, and shall not
deliver same at the Main Closing pursuant to Section 2(B)(iv) of the Purchase
Agreement,
(c) Purchaser shall receive a credit against
the Purchase Price at the Main Closing (without duplication) in the amount of
the Allocated Release Price for the Club Apartments and the Allocated Purchase
Price for the rest of the Properties shall be adjusted pursuant to Section
12(A)(vi) of the Purchase Agreement,
(d) If and when closing under the Club Sales
Contract occurs, then Seller or NPA shall immediately pay to Purchaser the
amount equal to the Net Proceeds for the Club Sale less the Allocated Release
Price for the Club Apartments. The Escrowee shall deliver to Purchaser the
Xxxxxxx Money for the Club Apartments (i.e. $750,000 plus interest earned
thereon) at which time the obligations of Purchaser and Seller with respect to
the closing on the Club Apartments under the Purchase Agreement shall be deemed
satisfied, and
(e) If on the other hand, the Club Sales
Contract is Duly Terminated after the Main Closing then:
1) Seller shall promptly deliver the
Termination Notice and the closing with respect
to the Club Apartments shall be adjourned as
determined pursuant to Section 1(B)(iii)(a)
hereof,
2) On the Closing Date for the Club
Apartments, the closing shall take place in
accordance with the terms and conditions set
forth in the Purchase Agreement as modified
hereby, including,
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without limitation, the adjustments set forth in
Section 5(C) of the Purchase Agreement,
3) The Allocated Purchase Price for the
Club Apartments at the closing on the Club
Apartments after the Main Closing shall be the
Allocated Release Price for the Club Apartments,
and
4) Purchaser's adjournment rights under
Section 5(A) of the Purchase Agreement shall not
be changed, however, the Closing Date with
respect to the Club Apartments may be after the
outside Closing Date described in such Section,
and in such event, the Closing Date with respect
to the Club Apartments determined pursuant to
this Section 1(B)(iii) shall be deemed the
original scheduled Closing for the Club
Apartments under Section 5(A) and no further
adjournment by Purchaser shall be permitted.
Seller's adjournment rights under Section 5(A)
of the Purchase Agreement shall not be changed.
(f) IF, ON THE OTHER HAND, THE CLUB SALES
CONTRACT IS TERMINATED BUT NOT DULY TERMINATED AFTER THE MAIN CLOSING THEN
SELLER SHALL PROMPTLY DELIVER THE TERMINATION NOTICE AND PURCHASER SHALL HAVE
THE RIGHT TO CHOOSE EITHER OF THE FOLLOWING OPTIONS, BUT NOT BOTH, (x) TERMINATE
THE PURCHASE AGREEMENT ONLY WITH RESPECT TO THE CLUB APARTMENTS UPON WRITTEN
NOTICE TO SELLER AND IN WHICH EVENT THE PURCHASE AGREEMENT ONLY WITH RESPECT TO
THE CLUB APARTMENTS, WITHOUT FURTHER ACTION OF THE PARTIES, SHALL BECOME NULL
AND VOID AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS UNDER
THE PURCHASE AGREEMENT WITH RESPECT TO THE CLUB APARTMENTS, EXCEPT FOR THE
FOLLOWING, WHICH SHALL SURVIVE SUCH TERMINATION: (i) THE RETURN OF THE ALLOCATED
XXXXXXX MONEY WITH RESPECT TO THE CLUB APARTMENTS TO THE PURCHASER, (ii) THE
PROVISIONS THAT ARE EXPRESSLY STATED TO SURVIVE THE TERMINATION OF THE PURCHASE
AGREEMENT AND (iii) THE PAYMENT OF THE LIQUIDATED DAMAGES (AS DEFINED BELOW IN
SECTION 1(H)) BY SELLER TO PURCHASER OR (y) PROCEED TO CLOSE ON THE CLUB
APARTMENTS AS FOLLOWS:
1) The closing with respect to the Club
Apartments shall be adjourned as determined
pursuant to Section 1(B)(iii)(a) hereof.
2) On the Closing Date for the Club
Apartments, the closing shall take place in
accordance with the terms and conditions set
forth in the Purchase Agreement as modified
hereby, including, without limitation, the
adjustments set forth in Section 5(C) of the
Purchase Agreement,
3) The Allocated Purchase Price for the
Club Apartments at the closing on the Club
Apartments after the Main Closing shall be the
Allocated Release Price for the Club Apartments
plus the following adjustment:
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a) The Allocated Purchase Price for
the Club Apartments shall be decreased
by Seven Hundred Fifty Thousand Dollars
($750,000).
4) Purchaser's adjournment rights under
Section 5(A) of the Purchase Agreement shall not
be changed, however, the Closing Date with
respect to the Club Apartments may be after the
outside Closing Date described in such Section,
and in such event, the Closing Date with respect
to the Club Apartments determined pursuant to
this Section 1(B)(iii) shall be deemed the
original scheduled Closing for the Club
Apartments under Section 5(A) and no further
adjournment by Purchaser shall be permitted.
Seller's adjournment rights under Section 5(A)
of the Purchase Agreement shall not be changed.
(iv) Seller shall use its commercially reasonable
efforts to cause the consummation of the sale of the Club Apartments. Seller
shall use its commercially reasonable efforts to cause the defeasance of the
Bonds ("Defease or the Defeasance") upon or immediately prior to the
consummation of the sale of the Club Apartments under the Club Sales Contract,
unless the Club Apartments are Condemned. Notwithstanding the foregoing, if the
Club Apartments are Condemned, then Seller shall not have the obligation to
consummate the closing under the Club Sales Contract or cause the Defeasance in
connection therewith. The following provisions shall also govern Defeasance and
other matters with respect to this Amendment:
(a) Defeasance shall be at the sole cost and
expense of Purchaser (including, without limitation, (i) all amounts paid to or
the value of any securities or investments deposited with any person or entity
(including the trustee for the Bonds), but expressly excluding only the amount
of the principal balance of such Bonds and (ii) all other costs and expenses
incurred by Seller and NPA in connection with the Defeasance (including without
limitation, attorneys' and accountants' fees required under the Bond Documents,
whether or not same are reasonable (i.e. Bond Counsel's fees or fees of any
rating agency, in each case incurred by Seller or NPA) and any and all fees,
penalties, premiums or other charges paid to consummate the Defeasance), all
such costs and expenses (the "Defeasance Costs"). For clarification purposes, as
between Seller, NPA and Purchaser only and not for the benefit of any third
party, in connection with any Defeasance, including without limitation, if done
pursuant to Section 8(B)(iii) of the Purchase Agreement, the amount of the
principal balance of such Bonds (i.e. $6,145,000) paid to, or the value of any
securities or investments deposited in the amount of the principal balance of
such Bonds (i.e. $6,145,000) with, any person or entity shall be Seller's and
NPA's sole cost and responsibility upon any such Defeasance.
(b) Purchaser, except as set forth in
Section 1(D) hereof and in connection with the Courts at Waterford, shall
reimburse Seller for all such Defeasance Costs with respect to the Defeasance of
the Bonds at the Club Apartments, without duplication, including without
limitation, in the event that the Bonds are Defeased pursuant to Section
8(B)(iii) of the Purchase Agreement whether the failure to obtain the Consent or
the Bond Counsel's opinion was or was not due to Purchaser's failure to use its
good faith efforts or to provide or execute any reasonably requested documents,
including without limitation provide
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any reasonable alternate security or credit and/or liquidity enhancements for an
entity with a credit rating similar to that of the entity that is proposing to
assume the Bond Documents required by the Issuer or Trustee with respect to the
assignment of the Bond Documents to Purchaser.
(c) Except as set forth in Section 1(D)
hereof, Seller shall not be obligated to come out of pocket to pay the
Defeasance Costs or the amount of the principal balance of such Bonds, but shall
use the purchase money proceeds of the sale of the Club Apartments paid by the
purchaser under the Club Sales Contract (or the purchase money proceeds of the
sale of the Properties paid by Purchaser pursuant to the Purchase Agreement) to
purchase obligations of the United States of America in an amount sufficient to
pay the principal balance and interest of such Bonds as they become due in
connection with the Defeasance, provided, however, same shall not modify
Purchaser's reimbursement obligations hereunder with respect to the Defeasance
Costs.
(d) Purchaser and Seller shall cooperate to
facilitate the closing under the Club Sales Contract and to consummate the
Defeasance.
(e) Neither Seller nor NPA shall (x)
terminate the Club Sales Contract, (y) materially modify the Club Sales Contract
or (z) grant, cause, or allow to occur any material waiver of the obligations of
the purchaser under the Club Sales Contract (including without limitation,
terminating the Club Sales Contract by giving notice under Section 9.20(e) of
the Club Sales Contract, provided, however, Seller or NPA may give notice under
Section 9.20(b) if NPA can not accomplish (after using its good faith efforts)
the Release (as defined in the Club Sales Contract) as long as Seller
simultaneously provides Purchaser with a copy of such notice) without the prior
consent of Purchaser, which consent shall not be unreasonably withheld or
delayed.
(f) Seller shall provide Purchaser with a
copy of the notice it or NPA sends setting the closing under the Club Sales
Contract.
(g) If Seller commits any default under the
terms or provisions of this Section 1(B), then Purchaser shall have the right of
specific performance, subject to the limitations set forth in Section 10(E) and
4(C) of the Purchase Agreement. If Purchaser commits any default under the terms
or provisions of this Section 1(B) then Seller's sole and exclusive remedy shall
be as set forth in Section 10(C) of the Purchase Agreement.
(C) For clarification purposes, if there is a Condemnation
that is not a Major Event with respect to the Club Apartments the provisions of
Section 6 of the Purchase Agreement shall govern (assuming the Club Sales
Contract is terminated, otherwise the provisions of this Agreement shall remain
in effect). For clarification purposes, if there is a Condemnation that is a
Major Event with respect to the Club Apartments (assuming the Club Sales
Contract is terminated, otherwise the provisions of this Agreement shall remain
in effect), Purchaser shall have the right to choose either of the following
options, but not both, (x) terminate the Purchase Agreement only with respect to
the Club Apartments upon written notice to Seller and in which event the
Purchase Agreement only with respect to the Club Apartments, without further
action of the parties, shall become null and void and neither party shall have
any
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further rights or obligations under the Purchase Agreement with respect to the
Club Apartments, except for the return of the Allocated Xxxxxxx Money with
respect to the Club Apartments to the Purchaser and the provisions that are
expressly stated to survive the termination of the Purchase Agreement and (y)
proceed to close on the Club Apartments as follows:
(i) If on or prior to the Main Closing,
(a) Seller shall assign the Net Proceeds to
Purchaser (or deliver to Purchaser if Seller shall have received same) and the
Purchase Price shall not otherwise be adjusted due to the fact that the Club
Apartments was not transferred to Purchaser and any Allocated Xxxxxxx Money for
the Club Apartments shall be delivered to Seller at the Main Closing, at which
time the obligations of Purchaser and Seller with respect to the closing on the
Club Apartments under the Purchase Agreement shall be deemed satisfied.
(ii) If after the Main Closing,
(a) Seller shall assign the Net Proceeds to
Purchaser (or deliver to Purchaser if Seller shall have received same) less the
Allocated Release Price for the Club Apartments, less the Defeasance Costs. The
Escrowee shall deliver to Purchaser the Xxxxxxx Money for the Club Apartments,
at which time the obligations of Purchaser and Seller with respect to the
closing on the Club Apartments under the Purchase Agreement shall be deemed
satisfied.
(D) Notwithstanding anything herein or in the Purchase
Agreement to the contrary, Purchaser shall pay the Defeasance Costs with respect
to the Club Apartments whenever the Bonds are Defeased for the Club Apartments,
unless Purchaser has duly elected to terminate the Purchase Agreement with
respect to the Club Apartments as permitted by this Agreement, in which event
Seller shall pay all such Defeasance Costs, if any.
(E) For clarification purposes, if Seller elects to drop the
Club Apartments pursuant to Section 8B of the Purchase Agreement (which will now
only occur after a termination of the Club Sales Contract and the failure of
Purchaser to assume the Bonds within 60 days after Purchaser's receipt of the
Termination Notice) then the time periods that are calculated from the Main
Closing in Section 8 and Section 12 of the Purchase Agreement shall be
calculated from the expiration of such 60 day period and not from the Main
Closing.
(F) Notwithstanding anything herein or in the Purchase
Agreement to the contrary, if the Club Sales Contract is not executed by all
parties thereto by the Main Closing, the Club Sales Contract shall be deemed
Duly Terminated prior to the Main Closing and the Termination Notice shall be
given at the Main Closing and the provisions of Section 1(B)(ii) (a) hereof
shall apply.
(G) For clarification purposes Xxxxxxx Money for the Club
Apartments in the amount of Seven Hundred Fifty Thousand Dollars ($750,000) that
is required to be retained hereunder by the Escrowee is the Allocated Xxxxxxx
Money for the Club Apartments.
(H) For purposes of this Agreement "Liquidated Damages"
shall mean damages in the amount of Seven Hundred Fifty Thousand Dollars
($750,000) to be paid by
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Seller to Purchaser as liquidated damages (and not as a penalty) if the Club
Sales Contract is terminated but not Duly Terminated and Purchaser elects the
option that entitles it to Liquidated Damages under this Agreement. Seller and
Purchaser acknowledge and agree that (i) the Liquidated Damages are a reasonable
estimate of and bear a reasonable relationship to the damages that would be
suffered and costs incurred by Purchaser if the Club Sales Contract is
terminated but not Duly Terminated; (ii) the actual damages suffered and costs
incurred by Purchaser as a result of the Club Sales Contract being terminated
but not Duly Terminated would be extremely difficult and impractical to
determine; (iii) Seller seeks to limit its liability under this Agreement with
respect to the Club Apartments to the amount of the Liquidated Damages in the
event that the Club Sales Contract is terminated but not Duly Terminated; and
(iv) the Liquidated Damages shall be and constitutes valid liquidated damages
and are not a penalty.
2. OTHER MATTERS WITH RESPECT TO THE CLUB APARTMENTS
(A) For clarification purposes, Seller's right to arrange
for the redemption of the Bonds and repayment of the Bond Financing in Section
8(B)(iii) of the Purchase Agreement and anywhere else under the Purchase
Agreement, shall be deemed to include defeasance of the Bonds with respect to
the Club Apartments. Upon the defeasance with respect to the Club Apartments,
only the mortgage and other security documents of record that encumber the Club
Apartments shall not be Permitted Exceptions, but any other title exception that
was disclosed on the Title Commitment for the Club Apartments shall be a
Permitted Exception, including without limitation, the documents set forth on
Exhibit A hereto (the "Regulatory Agreement").
(B) Notwithstanding anything herein or in the Purchase
Agreement to the contrary, at the closing with respect to the Club Apartments
(assuming such Property is transferred to Purchaser at such closing), Purchaser
shall cause the entity that takes title to such Property at the Closing (the
"applicable property owner") to assume the Regulatory Agreement, which
assumption shall be recorded of record and which assumption shall (x) require
that the applicable property owner provide copies of all required certificates,
if any, and other correspondence under the Regulatory Agreement be sent at the
same time to Seller and (y) require (which requirement can be satisfied by
having the recorded assumption run with the land) any future property owner to
assume the Regulatory Agreement and provide Seller with the same copies as set
forth in subsection 2(B)(x) above, which assumption shall be recorded of record.
(i) In addition, Purchaser shall cause the
applicable property owner and Mezzanine Borrower to indemnify, defend and hold
harmless Seller and the Affiliates and their partners, shareholders and/or
members, and their respective officers, directors, employees, and agents, from
and against any and all Claims suffered or incurred by Seller or any of such
other entities or persons and directly arising out of or in connection with a
breach of the obligations of the property owner under the Regulatory Agreement
and the use of the Property under the Regulatory Agreement, that occurs after
the closing on such Property under the Purchase Agreement, including without
limitation, any such Claim due to the taxability of the Bonds. This indemnity
shall survive the Closing with respect to such Property.
(a) Such indemnity shall be subject to the
Damage Cap and the Deductible. Such indemnity shall be released upon a transfer
of the Club Apartments, but only if Seller is provided with either (x) a
complete release of all obligations and liabilities (contingent
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or otherwise), including without limitation, the matters set forth in the
indemnity in Section 2(B)(i) hereof, in connection with the Regulatory Agreement
which arise or accrue after the date of the closing of the sale of the Club
Apartments pursuant to the Purchase Agreement to the applicable property owner
and otherwise in a form reasonably acceptable to Seller or (y) an indemnity
covering the matters set forth in Section 2(B)(i) hereof and otherwise in a form
reasonably acceptable to Seller and from an entity that Seller reasonably
approves of (however, if such entity has a net worth equal to or greater than
the net worth of the Mezzanine Borrower on the date of the closing under the
Purchase Agreement with respect to such Property, then such entity shall be
deemed reasonably acceptable to Seller), otherwise such indemnity shall remain
in effect.
(ii) In addition, if any consent is required by a
third party to effectuate the assumption of the Regulatory Agreement, Purchaser
and Seller will act in the same manner as they are required to act to obtain the
Consent and the Bond Counsel's opinion under Article 8 of the Purchase
Agreement.
(C) Seller shall indemnify, defend and hold harmless
Purchaser and its partners, shareholders and/or members, and their respective
officers, directors, employees, and agents, from and against any and all Claims
suffered or incurred by Purchaser or any of such other entities or persons and
directly arising out of or in connection with a breach of the obligations of the
Seller, an Affiliate or a property owner that is an affiliate (including without
limitation, NPA and New Plan Realty Trust) of either Seller or an Affiliate
under the Regulatory Agreement and the use of the Property under the Regulatory
Agreement, that occurred on or prior to the closing on such Property under the
Purchase Agreement, including without limitation, any such Claim due to the
taxability of the Bonds. This indemnity shall survive the Closing with respect
to such Property. Such indemnity shall be subject to the Damage Cap and the
Deductible.
3. 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.
(C) Exhibits: The Recitals to this Agreement and the
Exhibits attached hereto are hereby incorporated by reference into the body of
this Agreement 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
Agreement as of the day and year first above written.
SELLER:
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Date:
PURCHASER:
XXXXXXXX-KOENMEN LLC
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Manager
Date:
By: /s/ XXXXX XXXXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Manager
Date:
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