EXHIBIT 2.8
FIRST AMENDMENT TO
PURCHASE AGREEMENT
BY AND AMONG
EIG OPERATING PARTNERSHIP, L.P.
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 Operating Partnership, L.P., a Delaware
limited partnership ("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 $94,026,231, 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 CIRCUIT CITY PLAZA, 0000 Xxxxxx Xxxx
0000 Xxxxxxxxx, Xxxxxxxx, 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 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 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.
1.4 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).
1.5 The defined term "Significant Adjustment" shall not include any of the
following adjustments: (i) adjustments to the Purchase Price made under Sections
2.4 (excluding 2.4(e)(i)), 3.4(g), 7.6(a), and 7.6(b) of the Purchase Agreement,
(ii) adjustments to the Purchase Price with respect to the Assumed Indebtedness,
(iii) any adjustment to the Purchase Price due to a Tenant exercising its
purchase option, and (iv) as long as the property commonly known as Normandy
Square, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx is sold to Purchaser
[Down Reit] or its Affiliate the reduction due to dropping the property commonly
known as Xxxxxxx Xxxx Xxxxx, 0000 Xxxxxx Xxxx 1868 Crestwood, Missouri. In
addition, the phrase "(which figure shall include the Mars Deposit)" shall be
deleted from the definition of Significant Adjustment and shall not be included
therein.
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
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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 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
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(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 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 provide to Purchaser, free of charge, that certain office
space in its offices located at One Buckhead Plaza, 3060 Peachtree Road, N.W.,
Atlanta, Georgia, identified on Exhibit 1.14 attached to this Agreement. Such
space shall be provided together with all furniture, fixtures and equipment in
"as is" condition. Purchaser's rights shall be subject to the terms and
conditions (other than the payment of rent and other amounts) of the Lease with
respect to said premises dated March 23, 1993 (as amended) from Overseas Capital
Co. f/k/a Overseas Partners Capital Corp, as successor-in-interest to One
Buckhead Plaza Associates to Seller as the successor in interest to Equity
Investment Corporation. Notwithstanding anything
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herein to the contrary, Purchaser shall be obligated to pay for any
extraordinary operating expenses arising from its use of the office facilities.
1.9 Section 11.2(c) of the Purchase Agreement is deleted in its entirety
and replaced with the following:
"11.2(c) Seller shall indemnify and hold harmless Purchaser
Indemnitees from and against any and all Losses that may be asserted against or
suffered or incurred by the Purchaser Indemnitees arising out of, or relating
to, any breach of Hickory's representations and warranties in Sections 4.8 and
4.17, the Elkhart EPA Liability, the Bristol Plaza Environmental Liability and
the Employee Related Liabilities (collectively, with the liabilities under
Section 11.2(b), the "Non-Capped Liabilities"). Notwithstanding anything herein
to the contrary, the foregoing indemnity obligation of Seller with respect to
the Bristol Plaza Environmental Liability shall run to Purchaser or the
Affiliates of the Purchaser and shall survive the Closing or earlier termination
of this Agreement, if an Affiliate of the Purchaser or Purchaser acquires a
direct or indirect interest in the property commonly known as Bristol Plaza in
Bristol Pennsylvania within one (1) year of the Closing or termination of this
Agreement and shall survive the Closing or earlier termination of this
Agreement. The parties hereto agree that the consideration for such indemnity is
the direct or indirect benefit to Seller resulting from the inducement of the
Purchaser or its Affiliate to directly or indirectly acquire a direct or
indirect interest in such Property. Notwithstanding anything herein to the
contrary, solely with respect to Bristol Plaza Environmental Liability, no party
shall be entitled to indemnification under Section 11.2(c) unless (i) the
indemnification notice is delivered to the Indemnifying Party on or before the
date that is fifty-nine (59) months following the Closing Date and (ii) the
matter for which the Indemnifying Party seeks indemnification relates to further
action required by PADEP using statewide health standards and site specific
standards under the Pennsylvania Land Recycling and Remediation Standards Act
("ACT 2") to obtain a release of liability applicable to Purchaser in connection
with Seller's current ACT 2 activities and its contemplated submittals. The
parties acknowledge that reasonable and customary deed restrictions not limiting
commercial or retail uses may be required by the PADEP in conjunction with such
release from liability and Purchaser hereby agrees to accept same and cooperate
in furtherance of obtaining such release of liability subject to Purchaser's
indemnification rights hereunder."
And the following provisions shall be added the to Purchase Agreement:
"Bristol Environmental Liability" means any and all investigation,
characterization, sampling and analysis, removal, remediation, monitoring,
post-closure care, and preparation and submission of reports required by the
Pennsylvania Department of Environmental Protection or any successor agency
("PADEP") to obtain a release from liability applicable to Purchaser under the
Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 Pa.
Stat. Xxx. section 6026. 101 et seq. with respect to the facts and circumstances
which are the subject of Seller's current ACT 2 activities and submittal of its
proposed notice of intent to remediate the site to state wide health standards
and site specific standards and ACT 2 final report pertaining to the Property
commonly known as Bristol Plaza in Bristol Pennsylvania (the "Bristol Site").
Without limiting the foregoing, the term shall include all costs, expenses, and
fees associated with any of the foregoing or with obtaining and complying with
any permits or other requirements related thereto and with the filing of any and
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all public notices required and any actions needed to address comments arising
from the public notice or PADEP's review.
"Seller shall undertake or cause to be undertaken all actions
necessary or required to resolve the Bristol Environmental Liability as
expeditiously as commercially reasonable and shall ensure that such actions are
taken in a diligent, workmanlike and lien-free manner. Purchaser and Seller
shall cooperate with each other in all reasonable respects in connection with
the foregoing. Seller's cooperation shall include, without limitation,
permitting Purchaser at Purchaser's option to review and comment on reports in
advance of their submission to PADEP, to participate in any meetings with PADEP,
and to approve in advance any and all work to be undertaken at the Bristol Site.
Purchaser's cooperation shall include, without limitation, permitting Seller or
its agents reasonable access at reasonable times to the Bristol Site."
1.10 All reductions in Purchase Price shall be allocated to the Property
that such adjustment or credit was applicable to.
1.11 BRISTOL PLAZA AND TARPON MALL ENVIRONMENTAL INSURANCE.
(a) With respect to the Property commonly known as Xxxxxx Xxxx, 00000
Xxxxxx Xxx. Xxxx & US Hwy. 19 N., Tarpon Springs, Florida, and the Bristol Site,
Seller shall at or prior to Closing have procured an environmental insurance
policy from AIG reasonably acceptable to Purchaser in its sole discretion and
applicable to any condition in existence or first occurring prior to the Closing
Date which: (1) covers: (a) on-site clean-up of pre-existing conditions arising
from discovery or third-party claims; (b) third-party claims for on-site bodily
injury and property damage; (c) third-party claims for off-site cleanup
resulting from pre-existing conditions; and (d) third-party claims for off-site
bodily injury and property damage; including, without limitation, any of the
foregoing arising from or relating to drycleaner contaminants previously
identified in the soil and groundwater at Tarpon Mall and the historic presence
of underground storage tanks at the Bristol Site; (2) broadly names Purchaser
and related entities as named insureds; (3) except with respect to on-site
cleanup based on discovery of contaminants from historic drycleaners at Tarpon
Mall (which shall be subject to no greater than a $100,000 deductible), contains
a deductible of no greater than $50,000.00 per incident (unless Seller shall
have agreed to pay for and indemnify Purchaser from and against any deductible
amount above $50,000.00 per incident); (4) has a policy period of five years
from the Closing Date; (5) contains a per incident coverage limit of
$2,000,000.00 and an aggregate coverage limit of $4,000,000.00; and (6) does not
contain any term, condition, limitation or exclusion that Purchaser deems would
significantly undermine coverage of pre-existing conditions, including without
limitation coverage of the Bristol Liability or the drycleaners at Tarpon Mall.
Purchaser covenants that it will not knowingly take any action pertaining to the
Properties commonly known as Tarpon Mall and Bristol Plaza unless required by
law or applicable government requirements that would limit coverage or trigger
an exclusion from coverage and Purchaser further agrees that the binder provided
to Seller from AIG dated November 5, 2002 pertaining to the Properties commonly
known as Tarpon Mall and Bristol Plaza satisfy Seller's requirements set forth
herein, if Purchaser is added as a named insured and the policy premiums are
paid.
(b) Seller hereby agrees to pay and indemnify Purchaser from and against
(x) the first $25,000.00 of each deductible applicable to claims made under the
foregoing policy with respect
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to Tarpon Mall and (y) all of the deductible applicable to claims made under the
foregoing policy with respect to the Bristol Site.
1.12 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.
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 OPERATING PARTNERSHIP, L.P.
By: EIG Realty, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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