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EXHIBIT 2.3
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. CLUBHOUSE AT DEERHORN VILLAGE AND WORK AT SHERWOOD ACRES
(A) In connection with the damage to the clubhouse at
Deerhorn Village, Section 3(E)(i) of the Purchase Agreement is hereby deleted in
its entirety and replaced with the following: "(i) Purchaser shall receive,
without duplication of any other credit or adjustment, a credit against the
Purchase Price in the amount of Five Hundred Fourteen Thousand Dollars
($514,000), which credit shall only be given upon the closing with respect to
Deerhorn Village."
(B) For clarification purposes, with respect to the work
being performed at Sherwood Acres: (i) the cost of the total job as indicated on
Exhibit H to the Purchase Agreement is $2,244,405, (ii) Seller is not obligated
to pay for any amount in excess of $1,686,405 for such work as indicated on
Exhibit H, (iii) Seller shall continue to have the work as indicated on Exhibit
H performed at Sherwood Acres until such closing and (iv) at the closing on
Sherwood Acres, Seller shall receive a credit towards the Purchase Price for the
amount of funds Seller has spent in excess of $1,686,405 (proof of payment to be
provided to Purchaser) for such work, as indicated on Exhibit H.
2. AMENDMENTS TO EXHIBITS
(A) The legal descriptions for the Cedar Bluff Apartments,
the Mohawk Garden Apartments and the Knollwood Apartments Properties as part of
Exhibit B attached to the Purchase Agreement are hereby deleted in their
entirety and replaced with the legal descriptions for the Cedar Bluff
Apartments, the Mohawk Garden Apartments and the Knollwood Apartments Properties
attached hereto as Exhibit A, which shall be made a part of Exhibit B attached
to the Purchase Agreement.
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(B) The two Service Contracts for laundry room operations on
Exhibit B attached hereto are hereby added to Exhibit F attached to the Purchase
Agreement and made a part thereof.
(C) Exhibit N-1 attached to the Purchase Agreement is hereby
amended by removing the Title Objections with respect to PC# 101 and PC# 170, as
such matters have been remedied to Purchaser's satisfaction. Purchaser confirms
that it has received all of the "missing documents" listed on Exhibit N to the
Purchase Agreement, other than (i) with respect to PC#17, the Rights,
Privileges, Easements and Rights of Way in Liber 196, Page 564, as listed in
Exception 4(a) Schedule B of the Title Commitment with respect to such Property
and (ii) the updated survey for PC#195 Knollwood Apartments (the "Knollwood
Survey") and Purchaser must object to any matter disclosed by such "missing
documents" that Purchaser is entitled to object to by Tuesday, July 31, 2001, or
such matters shall be deemed waived, and Purchaser must object to any matter
disclosed by the Knollwood Survey that Purchaser is entitled to object to by
Wednesday, August 1, 2001, or such matters shall be deemed waived.
(D) Purchaser acknowledges that the notice of violation set
forth on Exhibit C attached hereto, with respect to Goldcrest Apartments, was
issued after May 10, 2001 and Exhibit J attached to the Purchase Agreement is
hereby amended to include such new violation. Seller shall endeavor (until the
Closing) to cure such violation and the cost and expense of doing same that it
is entitled to be reimbursed for shall be reimbursed pursuant to the Purchase
Agreement.
(E) Exhibit J attached to the Purchase Agreement is hereby
amended to include the violation with respect to Lake Park Apartments set forth
on Exhibit C-1 attached hereto. In addition, Exhibit J attached to the Purchase
Agreement is hereby amended to include the new items set forth on Exhibit C-2
attached hereto.
(F) Exhibit P attached to the Purchase Agreement is hereby
amended to include the EMG Phase I environmental site assessment on Hillcrest
Apartments in Mobile, Alabama, dated June 7, 2001 and the supplemental letters
on Exhibit D attached hereto.
(G) Exhibit A attached to the Purchase Agreement is hereby
amended and restated in its entirety as set forth on Exhibit F attached hereto
to include the proper footnotes to conform it with Exhibit O attached to the
Purchase Agreement.
(H) Exhibit F attached to the Purchase Agreement is hereby
amended to include the following: (i) with respect to the Club Apartments, the
Lease Agreement (laundry lease) dated July 1, 1987, as amended by Extension of
Lease dated February 15, 1991 with Web Service Company, Inc., as Lessee and (ii)
the uniform rental agreement with UniFirst that appears on Exhibit F with
respect to Harbour Landing Apartments is also applicable to all Properties
indicated on Exhibit G-1 attached hereto. Copies of both agreements are attached
hereto as Exhibit G.
3. THE COURTS AT WATERFORD
(A) For clarification purposes, Seller is obligated to
redeem the Bonds with respect to the Courts at Waterford and Purchaser is not
obligated to assume the Bonds with
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respect to the Courts at Waterford pursuant to Section 8 of the Purchase
Agreement. Upon redemption of the Bonds with respect to the Courts at Waterford,
only the mortgage and other security documents of record that encumber the
Courts at Waterford shall not be Permitted Exceptions, but any other title
exception that was disclosed on the Title Commitment for the Courts at Waterford
shall be a Permitted Exception, including without limitation, the documents set
forth on Exhibit E hereto (the "Regulatory Agreement").
(B) Notwithstanding anything herein or in the Purchase
Agreement to the contrary, at the closing with respect to the Courts at
Waterford, 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 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 Courts at Waterford, but only if Seller is provided with either (x) a
complete release of all obligations and liabilities (contingent 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 Courts at Waterford
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 is the subsequent owner of the Courts at
Waterford, 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) The Affiliate that transfers the Courts at Waterford to
Purchaser shall indemnify, defend and hold harmless Purchaser and its partners,
shareholders and/or members,
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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 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.
4. MEZZANINE FINANCING
(A) In addition to, and without limiting the provisions of
Section 16 of the Purchase Agreement, the following has been agreed to:
(i) The Mezzanine Loan Documents shall contain a
provision that requires the establishment of a debt service reserve ("Debt
Service Reserve") to be held by Seller in an interest bearing account. The
Mezzanine Borrower shall fund the Debt Service Reserve with a total amount equal
to two months of the "Fee" payments due under Section 1 of the Reimbursement
Agreement comprising one of the Mezzanine Loan Documents (the "Reimbursement
Agreement") which amount shall be funded in two installments as follows, in
addition to all other payments due under the Mezzanine Loan Documents: (a) at
the Closing, an amount equal to one month's "Fee" payment due under Section 1 of
the Reimbursement Agreement and (b) then, on the 6th scheduled payment date
under the Mezzanine Loan Documents an amount equal to one month's "Fee" payment
due under Section 1 of the Reimbursement Agreement. Provided, however, if there
are sale proceeds from the sale of any Individual Property that are held in
escrow by Seller under the Mezzanine Loan Documents, then such proceeds (or a
portion thereof as needed) shall be used to fund (and put in the account for the
Debt Service Reserve) only the second installment to be funded into the Debt
Service Reserve, to the extent necessary until the Debt Service Reserve is fully
funded and Mezzanine Borrower shall receive a credit against its obligation to
fund the Debt Service Reserve by such amount, and in no event shall any portion
of the Debt Service Reserve be returned to Mezzanine Borrower until all
obligations under the Mezzanine Loan Documents are indefeasibly paid in full.
Seller shall have the right to draw upon the Debt Service Reserve if any payment
due under the Mezzanine Loan Documents is not paid on its due date, without
notice or demand to Mezzanine Borrower, and Mezzanine Borrower shall have the
obligation to replenish the Debt Service Reserve with new funds (i.e. no credit
shall be given for sale proceeds held in escrow) within five (5) days of demand
from Seller. Upon a default under the Mezzanine Loan Documents, Seller can apply
the amounts in the Debt Service Reserve to any amounts due and owing under the
Mezzanine Loan Documents, as Seller may choose, including, without limitation,
expenses of Seller. It shall be a condition precedent of Seller's obligations to
close under the Purchase Agreement and shall be a material default by Purchaser
if such Debt Service Reserve is not duly funded at the Closing and that the
Mezzanine Loan Documents are otherwise satisfactory to Seller.
(ii) No cash management agreement shall be required
under the Mezzanine Loan Documents, provided, however, if and when the Senior
Loan Documents require a cash management agreement (or require such cash
management agreement to be
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operative), then such cash management agreement shall require that the payments
due under the Mezzanine Loan Documents are paid to Seller under such cash
management agreement prior to any distributions to the individual property
owners.
(iii) The letter of credit option has been chosen by
Purchaser and as such the intercreditor agreement shall contain an express
provision (or attach the document) governing when the Senior Lender is entitled
to draw on the letter of credit, which shall not be sooner than an event of
default under the Senior Loan.
(iv) For clarification purposes, all financial
information to be provided under the Mezzanine Loan Documents shall be on an
individual Property and consolidated basis.
(v) For clarification purposes, the first sentence
of Section 3(d) of the Pledge and Security Agreement which is Exhibit S to the
Purchase Agreement shall be replaced with the following:
"Notwithstanding anything herein to the contrary, Grantor or any
Property Owner may sell any Individual Property (or portion thereof) to a third
party (not the Senior Lender or its assignee) for fair market value (it shall be
deemed to be fair market value if the sale is to an unaffiliated third party in
an arms-length transaction), but all proceeds (less actual out of pocket closing
costs (other than fees to Affiliates of Grantor or Owner which may not be paid
except as provided under this Security Agreement)) from such sale must be used
to pay down or defease the principal amount of the Senior Loan or shall be
delivered to Lender to be held in escrow as additional security for the
Obligations; provided, however, (i) at Grantor's option, such cash or non-cash
proceeds may remain the property of the Owner to be held by Senior Lender as
security for the Senior Loan, provided, however, if such cash proceeds are
required by the Senior Lender to be held by a newly created entity, Grantor
shall hold directly or indirectly all of the ownership interests therein and
Grantor shall grant to Lender a senior, perfected security interest in such
ownership interest with such documentation and accompanying opinions as Lender
may reasonably request, and (ii) if such non-cash proceeds are not used to pay
down or defease the principal amount of the Senior Loan or held by Senior Lender
as security, then at Grantor's option, such non-cash proceeds shall be held by
the Owner and shall be subject to the same transfer restrictions as the
Individual Property or shall be delivered to Lender to be held in escrow as
additional security for the Obligations."
5. ADDITIONAL EXTENSION OPTION
(A) Notwithstanding anything to the contrary in Section 5(A)
of the Purchase Agreement, Purchaser shall have the right to adjourn the
Closing, until a date that is not later than September 28, 2001, subject to a
shorter adjournment period set forth below (subject to Purchaser's right to
further extend per Section 10(A)(v) of the Purchase Agreement), TIME OF THE
ESSENCE WITH RESPECT TO SUCH DATE, provided as a condition precedent to
Purchaser exercising such right, Purchaser must comply with the following: (i)
Purchaser must provide written notice to Seller exercising such extension option
no later than August 24, 2001, TIME OF THE ESSENCE WITH RESPECT TO SUCH DATE,
and either (a) such notice must contain a representation by Purchaser (a breach
of such representation shall be a material default by Purchaser under the
Purchase Agreement) and evidence that Purchaser has "locked rate" with
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its lender and such representation shall also set forth the date on which such
rate lock will be effective through (provided, however, if the rate lock shall
expire before such September 28th date, then Purchaser shall only have the right
to adjourn the Closing until the date of the expiration of the rate lock, TIME
OF THE ESSENCE WITH RESPECT TO SUCH DATE) or (b) such notice must be accompanied
by a letter from Purchaser's lender stating, in general, that it is working with
Purchaser towards the closing of the acquisition financing for the Properties
which is currently anticipated to occur on or before September 28, 2001, which
letter shall be subject to any and all caveats, conditions and limitations as
such lender may require, including, without limitation, that such lender will
have no liability or obligation as a result of or arising out of such letter if
such financing fails to close for any reason and (ii) Purchaser shall deposit
with Escrowee by wire transfer of immediately available funds the sum of Four
Million Dollars ($4,000,000), which sum shall be added to and be a part of the
Xxxxxxx Money, no later than August 31, 2001, TIME OF THE ESSENCE WITH RESPECT
TO SUCH DATE, provided, however, Purchaser's failure to comply with items (i)
and (ii) above shall render the notice void and of no force and effect and the
option shall not be exercised.
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 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
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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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