ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment”), dated as of April 20, 2007, is made between New Plan Excel Realty Trust, Inc., a Maryland corporation (“Assignor”), and Super IntermediateCo LLC, a Maryland limited liability company (“Assignee”).
1. Assignment. Assignor does hereby unconditionally, absolutely and irrevocably sell, transfer, convey, assign, delegate, set over and deliver (or cause to be sold, transferred, conveyed, assigned, delegated, set over and delivered) to Assignee all of Assignor’s right, title, benefits, privilege and interest in, to and under all of the assets, properties (whether real property or personal property and whether tangible or intangible property), leases, rents, contracts, agreements, documents, letters, correspondence, files, notes, instruments, guaranties, indemnities, plans, drawings, permits, governmental authorizations, contracts, surveys, site plans, engineering reports, soil and environmental studies, construction and manufacturer warranties and any and all other rights of Assignor, including without limitation, the interests and securities listed on Annex I hereto (collectively, the “Assets and Agreements”).
2. Acceptance and Assumption. Subject to the terms and conditions of this Assignment, Assignee hereby accepts this Assignment and the rights granted herein and expressly assumes, and agrees to pay, perform and discharge, and indemnify and hold Assignor harmless against, all debts, obligations, liabilities, contracts and obligations of every kind,
character or description of Assignor, whether known or unknown, accrued, absolute, contingent or otherwise (the “Assumed Liabilities”).
3. Effective Time. The transactions contemplated by this Assignment shall be effective as of the date hereof.
4. Best Efforts. From time to time at or after the date hereof, each of the parties to this Assignment shall cooperate and use its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws to consummate and make effective the transactions contemplated herein, including, but not limited to, executing and delivering, or causing to be executed and delivered, such other documents as may be reasonably necessary to effectuate the transactions contemplated by this Assignment, including, without limitation, deeds to real property.
5. Governing Law. This Assignment shall be governed by the laws of the State of Maryland, without regard to the principles of conflicts of law thereof.
6. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7. Third Party Beneficiary. This Assignment may be relied upon by all third parties to the Assumed Liabilities and the Assets and Agreements and such third parties shall be third party beneficiaries of Assignee’s obligations with respect to the Assumed Liabilities and such third parties may enforce such Assumed Liabilities against Assignee.
[signature page follows]
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ASSIGNOR: |
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NEW PLAN EXCEL REALTY TRUST, |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Xxxxxxxxxx |
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Title: |
Secretary |
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ASSIGNEE: |
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SUPER INTERMEDIATECO LLC, a Maryland |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Name: |
Xxxx Xxxxxxxxxx |
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Title: |
Secretary |
3
Annex I
Interests and Securities Owned by Assignor
Legal Entity Name |
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Jurisdiction |
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Ownership |
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Avion Service, LLC |
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PA |
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100 |
% |
CA New Plan Asset Partnership IV, LP |
|
DE |
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100 |
% |
CA New Plan Asset, LLC |
|
DE |
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100 |
% |
CA New Plan Fixed Rate Partnership, LP |
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DE |
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100 |
% |
CA New Plan Fixed Rate SPE, LLC |
|
DE |
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100 |
% |
CA New Plan III |
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MD REIT |
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100 |
% |
CA New Plan IV |
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MD REIT |
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100 |
% |
CA New Plan Management, LLC |
|
DE |
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100 |
% |
CA New Plan Merchants Crossings Partnership, LP |
|
DE |
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100 |
% |
CA New Plan Merchants Crossing SPE, LLC |
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DE |
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100 |
% |
CA New Plan Texas Assets, LLC |
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DE |
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100 |
% |
CA New Plan Texas Assets, L.P. |
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DE |
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100 |
% |
CA New Plan V |
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MD REIT |
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100 |
% |
CA New Plan Venture Partner |
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MD REIT |
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100 |
% |
CA New Plan VI |
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MD REIT |
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100 |
% |
Clearwater Mall, LLC |
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DE |
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100 |
% |
ERP Australian Member, LLC |
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DE |
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100 |
% |
ERP EastChase, LLC |
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DE |
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100 |
% |
ERP Financing, LLC |
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DE |
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100 |
% |
ERP Fox Run, LLC |
|
DE |
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100 |
% |
ERP Hillcrest, LLC |
|
DE |
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100 |
% |
ERP Xxxxx Marketplace, LLC |
|
DE |
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100 |
% |
ERP Nevada, LLC |
|
DE |
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100 |
% |
ERP New Britain GP, LLC |
|
DE |
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100 |
% |
ERP New Britain Holdings, LP |
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DE |
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100 |
% |
ERP New Britain Limited Partnership |
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DE |
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100 |
% |
ERP New Britain Mezz GP, LLC |
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DE |
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100 |
% |
ERP New Britain Property Owner, LP |
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DE |
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100 |
% |
ERP of Midway, LLC |
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DE |
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100 |
% |
ERPF, LLC |
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DE |
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100 |
% |
ERT CIC, LLC |
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DE |
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100 |
% |
ERT 000xx Xxxxxx Xxxx, XXX |
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XX |
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100 |
% |
ERT AusMgt GP, LLC |
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DE |
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100 |
% |
ERT AusMgt LP Corp |
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DE |
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100 |
% |
ERT Australian Management, LP |
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DE |
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100 |
% |
ERT Development Corp. |
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DE |
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100 |
% |
ERT Pointe Orlando, Inc. |
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NY |
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100 |
% |
ERT Southland LLC |
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DE |
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100 |
% |
Excel Realty Partners, LP |
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DE |
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100 |
% |
I-1
Legal Entity Name |
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Jurisdiction |
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Ownership |
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Excel Realty - PA, LLC |
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DE |
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100 |
% |
Excel Realty Trust - NC |
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NC |
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100 |
% |
Excel Realty Trust - ST, LLC |
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DE |
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100 |
% |
HK New Plan ERP Property Holdings, LLC |
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DE |
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100 |
% |
HK New Plan Covered Sun, LLC |
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DE |
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100 |
% |
HK New Plan Alexis Park GP, LLC |
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DE |
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100 |
% |
HK New Plan Alexis Park, LP |
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DE |
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100 |
% |
HK New Plan Arvada Plaza, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Holdings I, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Holdings III, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Holdings IV, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Owner I, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Owner II, LP |
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DE |
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100 |
% |
HK New Plan Exchange Property Owner III, LLC |
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DE |
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100 |
% |
HK New Plan Exchange Property Owner IV, LLC |
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DE |
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100 |
% |
HK New Plan Festival Center (IL), LLC |
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DE |
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100 |
% |
HK New Plan Xxxx River Commons, LLC |
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DE |
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100 |
% |
HK New Plan Xxxx Plaza GP, LLC |
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DE |
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100 |
% |
HK New Plan Xxxx Plaza, LP |
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DE |
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100 |
% |
HK New Plan Lexington Town Square, LLC |
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DE |
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100 |
% |
HK New Plan Lower Tier OH, LLC |
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DE |
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100 |
% |
HK New Plan Xxxxx Xxxxxxx QRS LP, LLC |
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DE |
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100 |
% |
HK New Plan Xxxxx Xxxxxxx TRS GP Company |
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DE |
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100 |
% |
HK New Plan Xxxxx Xxxxxxx, LP |
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DE |
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100 |
% |
HK New Plan Marwood Sunshine Cheyenne, LLC |
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DE |
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100 |
% |
HK New Plan Merchants Crossing, LLC |
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DE |
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100 |
% |
HK New Plan Mid Tier OH, LP |
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DE |
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100 |
% |
HK New Plan OH TRS, Inc. |
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DE |
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100 |
% |
HK New Plan Olympia Corners, LLC |
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DE |
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100 |
% |
HK New Plan Skyway Plaza, LLC |
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DE |
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100 |
% |
HK New Plan STH Lower Tier, LLC |
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DE |
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100 |
% |
HK New Plan STH Mid Tier I, LLC |
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DE |
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100 |
% |
HK New Plan STH Mid Tier II, LLC |
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DE |
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100 |
% |
HK New Plan STH Upper Tier I, LLC |
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DE |
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100 |
% |
HK New Plan STH Upper Tier II Company |
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MD REIT |
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100 |
% |
HK New Plan University IV, LLC |
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DE |
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100 |
% |
HK New Plan Vineyards GP, LLC |
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DE |
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100 |
% |
HK New Plan Vineyards, LP |
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DE |
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100 |
% |
NC Properties #1, LLC |
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DE |
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100 |
% |
NC Properties #2, LLC |
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DE |
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100 |
% |
New Plan Acquisition Company, LLC |
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DE |
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100 |
% |
New Plan Australian Management, LP |
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DE |
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100 |
% |
New Plan Australian Member, LLC |
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DE |
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100 |
% |
I-2
Legal Entity Name |
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Jurisdiction |
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Ownership |
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New Plan Baybrook Management Company, LLC |
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DE |
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100 |
% |
New Plan Baybrook Partner, LLC |
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DE |
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100 |
% |
New Plan Cedar Plaza, LLC |
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DE |
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100 |
% |
New Plan Cinnaminson Urban Renewal, LLC |
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NJ |
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100 |
% |
New Plan Xxxxxxx Crossroads Management Company II, LLC |
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DE |
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100 |
% |
New Plan Xxxxxxx Crossroads Management Company, LLC |
|
DE |
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100 |
% |
New Plan Creekwood SC, LLC |
|
DE |
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100 |
% |
New Plan Xxxxxxxx Management Company, LLC |
|
DE |
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100 |
% |
New Plan Xxxxxxxx Partner, LLC |
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DE |
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100 |
% |
New Plan Disbursing, LLC |
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DE |
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100 |
% |
New Plan Doverama, LLC |
|
DE |
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100 |
% |
New Plan DRP Trust |
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MD REIT |
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100 |
% |
New Plan East Cherokee Management Company, LLC |
|
DE |
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100 |
% |
New Plan EastChase Management Company, LLC |
|
DE |
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100 |
% |
New Plan Eastlake SC, LLC |
|
DE |
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100 |
% |
New Plan Eisenhower Square SC, LLC |
|
DE |
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100 |
% |
New Plan ERP Limited Partner Company |
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MD REIT |
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100 |
% |
New Plan ERT HD Florida, LLC |
|
DE |
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100 |
% |
New Plan ERT HD Louisiana, LLC |
|
DE |
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100 |
% |
New Plan ERT HD Ohio, LLC |
|
DE |
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100 |
% |
New Plan ERT Xxxxxx Gardens, LLC |
|
DE |
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100 |
% |
New Plan Financing I, LLC |
|
DE |
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100 |
% |
New Plan Florida Holdings, LLC |
|
DE |
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100 |
% |
New Plan Flowery Branch Management Company, LLC |
|
DE |
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100 |
% |
New Plan Hampton Village, LLC |
|
DE |
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100 |
% |
New Plan Hickory Hollow Member, LLC |
|
DE |
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100 |
% |
New Plan Hickory Hollow Owner, LLC |
|
DE |
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100 |
% |
New Plan Hickory Property Manager, LLC |
|
DE |
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100 |
% |
New Plan Institutional Retail Partner II, LLC |
|
DE |
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100 |
% |
New Plan Institutional Retail Partner, LLC |
|
DE |
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100 |
% |
New Plan Lake Grove Management Company, LLC |
|
DE |
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100 |
% |
New Plan Maryland Holdings |
|
DE |
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100 |
% |
New Plan Memphis Commons, LLC |
|
DE |
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100 |
% |
New Plan Meridian Management Company, LLC |
|
DE |
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100 |
% |
New Plan Midway Village SC, LLC |
|
DE |
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100 |
% |
New Plan Montecito Marketplace Phase I Management Company, LLC |
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DE |
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100 |
% |
New Plan MP Management, LLC |
|
DE |
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100 |
% |
New Plan New Xxxxxxxx Corners SC, LLC |
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DE |
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100 |
% |
I-3
Legal Entity Name |
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Jurisdiction |
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Ownership |
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New Plan New London Management Company, LLC |
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DE |
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100 |
% |
New Plan NPK Management I, LLC |
|
DE |
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100 |
% |
New Plan NPK Redevelopment I, LLC |
|
DE |
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100 |
% |
New Plan of Arlington Heights, LLC |
|
DE |
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100 |
% |
New Plan of Cinnaminson, Inc |
|
DE |
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100 |
% |
New Plan of Cinnaminson, LP |
|
DE |
|
100 |
% |
New Plan of Elk Grove, LLC |
|
DE |
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100 |
% |
New Plan of Fashion Corners, LLC |
|
DE |
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100 |
% |
New Plan of Fashion Place, LLC |
|
DE |
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100 |
% |
New Plan of Hillside Village, LLC |
|
DE |
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100 |
% |
New Plan of Illinois LLC |
|
DE |
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100 |
% |
New Plan of Laurel Mall, LLC |
|
DE |
|
100 |
% |
New Plan of Michigan Member, LLC |
|
DE |
|
100 |
% |
New Plan of Michigan, LLC |
|
DE |
|
100 |
% |
New Plan of New Garden, LLC |
|
DE |
|
100 |
% |
New Plan of Silver Pointe, LLC |
|
DE |
|
100 |
% |
New Plan of Tennessee, LLC |
|
DE |
|
100 |
% |
New Plan of Tinton Falls, LLC |
|
DE |
|
100 |
% |
New Plan of West Ridge, LLC |
|
DE |
|
100 |
% |
New Plan Pennsylvania Holdings, LLC |
|
DE |
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100 |
% |
New Plan Property Holding Company |
|
DE |
|
100 |
% |
New Plan Quail Springs Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Realty of Alabama, LLC |
|
AL |
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100 |
% |
New Plan Realty Trust, LLC |
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MA |
|
100 |
% |
New Plan Riverplace Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Rolling Xxxxxxx Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Skytop Pavilion Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Sweetwater Village, LLC |
|
DE |
|
100 |
% |
New Plan Tenaya Village Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Tift-Town, LLC |
|
DE |
|
100 |
% |
New Plan Xxxxxx Gardens Management Co., LLC |
|
DE |
|
100 |
% |
New Plan Victory Square, LLC |
|
DE |
|
100 |
% |
New Plan Village of Southlake, LLC |
|
DE |
|
100 |
% |
New Plan Wakefield Commons Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Westgate-Dublin, LLC |
|
DE |
|
100 |
% |
New Plan Westgate Management Company, LLC |
|
DE |
|
100 |
% |
New Plan Westgate Partners, LLC |
|
DE |
|
100 |
% |
New Plan Westpark Management Company II, LLC |
|
DE |
|
100 |
% |
I-4
Legal Entity Name |
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Jurisdiction |
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Ownership |
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New Plan Westpark Management Company, LLC |
|
DE |
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100 |
% |
NP AusMgt GP LLC |
|
DE |
|
100 |
% |
NP AusMgt LP, LLC |
|
DE |
|
100 |
% |
NP of Tennessee, LP |
|
DE |
|
100 |
% |
NPHV, LLC |
|
DE |
|
100 |
% |
NPTN, Inc. |
|
DE |
|
100 |
% |
Pointe Orlando Development Company |
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CA |
|
100 |
% |
Red Zone Development, LLC |
|
DE |
|
100 |
% |
I-5
Exhibit A
This Plan of Liquidation (this “Plan”) of New Plan Excel Realty Trust, Inc., a Maryland corporation (the “Corporation”), is intended to accomplish the complete liquidation and dissolution of the Corporation in accordance with the requirements of the Maryland General Corporation Law (the “MGCL”) and Section 2.12 of the Agreement and Plan of Merger, dated as of February 27, 2007 (the “Merger Agreement”), by and among the Corporation, Excel Realty Partners, L.P., a Delaware limited partnership, Super IntermediateCo LLC, a Maryland limited liability company (“Parent”), Super MergerSub Inc., a Maryland corporation and wholly owned subsidiary of Parent, and Super DownREIT MergerSub LLC, a Delaware limited liability company and wholly owned subsidiary of Parent, and provides as follows:
1. Effective Date. The effective date of this Plan (the “Effective Date”) shall be the date the Action by Unanimous Written Consent of the Board of Directors of the Corporation to which this Plan is attached as an exhibit is adopted in accordance with the MGCL and the Bylaws of the Corporation.
2. Liquidation. On and after the Effective Date, the Corporation shall not engage in any business activities, except to the extent necessary for preserving the values of the Corporation’s assets, winding up its business and affairs, discharging and paying all of the Corporation’s liabilities and distributing the Corporation’s assets to its stockholders in accordance with the Plan and the charter of the Corporation (the “Charter”).
3. Distribution of Assets; Provisions for Liabilities. As promptly as practicable on or after the Effective Date:
(a) In the discretion of the Board, the Corporation shall pay or discharge or set aside funds reasonably likely to be sufficient to pay for, or otherwise provide for the payment or discharge of, any liabilities and obligations of the Corporation.
(b) After provision for all debts and other reserves as contemplated by paragraph 3(a) above, the Corporation shall first distribute to the holders of the 7.80% Series D Cumulative Voting Step-Up Premium Rate Preferred Stock, par value $.01 per share (the “Series D Preferred Stock”), of the Corporation, and to the holders of the 7.625% Series E Cumulative Redeemable Preferred Stock, par value $.01 per share (the “Series E Preferred Stock”), of the Corporation, in cash, the amount of $500 for each share of Series D Preferred Stock and the amount of $250 for each share of Series E Preferred Stock, plus an amount equal to all accrued and unpaid dividends for each such share to the date fixed for distribution (the “Payment Date”), which Payment Date shall be set by any officer of the Corporation, and which Payment Date will not be less than 30 nor more than 60 days from the date of the Notice of such payment sent to the holders of the Series E Preferred Stock on or about March 12, 2007.
(c) Following the distributions contemplated by paragraph 3(b) above, all of the remaining assets of the Corporation shall be conveyed, assigned, transferred and
delivered to Parent, the sole holder of the common stock, $.01 par value per share, of the Corporation (the “Common Stock”), and pursuant to the Assignment and Assumption Agreement annexed hereto as Annex A (the “Assignment and Assumption Agreement”), in exchange for (i) all the outstanding Common Stock held by Parent and (ii) Parent’s agreement to assume, pay, perform and discharge, and indemnify and hold the Corporation harmless against, all debts, obligations and liabilities, contracts and obligations of every kind, character or description of the Corporation, whether known or unknown, accrued, absolute, contingent or otherwise.
4. Submission of Dissolution to Stockholders. The proper officers of the Corporation shall submit for approval to Parent, as the sole stockholder of the Corporation entitled to vote thereon as of the close of business on the first business date after the Payment Date (the “Record Date”), the dissolution of the Corporation in accordance with Subtitle 4 of Title 3 of the MGCL (the “Dissolution”).
5. Form 966; Notice to Creditors. The proper officers of the Corporation, or directors of the Corporation, shall (i) within 30 days after the Effective Date, file Form 966 with the Internal Revenue Service, together with certified copies of the Board’s resolutions advising and approving the Plan; and (ii) at least 20 days prior to filing the articles of dissolution contemplated in Paragraph 7 hereof, mail notice to all known creditors of the Corporation, if any, at their respective addresses shown on the records of the Corporation as well as all employees of the Corporation, if any, either at their home addresses as shown on the records of the Corporation, or at their business address, that the dissolution of the Corporation has been approved (alternatively, the Board may determine that the Corporation has no employees or known creditors).
6. Cancellation of Outstanding Shares of Stock. Subject to Section 9 below and the Charter, the distributions contemplated by Section 3 above shall be in complete liquidation of the Corporation and in cancellation of all issued and outstanding shares of stock, and all certificates representing such issued and outstanding shares of stock shall thereupon be cancelled. The Board may make such provisions as it deems appropriate regarding the cancellations, in connection with the making of distributions hereunder, of certificates representing the outstanding shares of stock.
7. Powers of Board and Officers. The directors and officers of the Corporation are authorized to make, execute and deliver such agreements, conveyances, assignments, transfers, certificates or other documents and take such other action as the directors and officers of the Corporation deem necessary or desirable in order to carry out the provisions of this Plan and effect the complete liquidation and dissolution of the Corporation in accordance with the Internal Revenue Code of 1986, as amended (the “Code”), and the MGCL, including, without limitation, filing, when appropriate, Articles of Dissolution with the State Department of Assessments and Taxation of Maryland in accordance with the MGCL and preparing and filing all tax returns required to be filed in order to implement the Plan.
8. Expenses. The expenses of carrying out the terms of this Plan shall be borne by the Corporation, whether or not the liquidation contemplated by this Plan is effected.
A-2
9. Termination. Notwithstanding approval of the Dissolution by Parent, as the sole stockholder entitled to vote thereon, the Board may modify or amend the Plan without further action by such stockholder to the extent permitted under then current law.
10. Tax Matters. The intent of this Plan is to liquidate all of the assets of the Corporation pursuant to Section 562(b)(1)(B) of the Code. This Plan is intended to constitute a plan of liquidation for purposes of Section 562(b)(1) of the Code and shall be interpreted and applied consistently therewith.
A-3