DTZ ROCKWOOD LLC, Case No. 09—13566 (SMB)

SECOND AMENDMENT TO
ASSET PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of
April 14, 2011 (this "Second Amendment"), further amends that certain Asset Purchase
Agreement, dated as of March 18, 2011 (as amended to date, the "Agreement"), by and between
Rockwood Real Estate Advisors LLC, a New York limited liability company (the "Seller"), and
Rockwood-CWFS LLC, a Delaware limited liability company (the "Purchaser"), as previously
amended by that certain First Amendment to Asset Purchase Agreement dated as of April 6,
2011 (the "First Amendment"). Capitalized terms used herein without definition shall have the
respective meanings for such terms set forth in the Agreement.
WHEREAS, the parties wish to amend certain terms of the Agreement to address
comments made and concerns expressed by the Bankruptcy Court at a hearing held on April 14,
2011, and to conform to changes prescribed by the Bankruptcy Court to the proposed Sales
Procedures and Sale Procedures Order (and including the Fee Order included as part thereof);
and
WHEREAS, pursuant to Section 9.7 of the Agreement, the parties may amend any
provision of the Agreement by written agreement executed by all of the parties to the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises made
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1.
Reaffirmation of Elimination of All Chapter 11 Plan and Related Provisions.
(a)
As provided in the First Amendment, the Seller and the Purchaser agree
and acknowledge that all provisions of the Agreement with respect to a party’s or the
parties’ requirements and/or obligations to seek to consummate the transactions
contemplated by the Agreement pursuant to the Chapter 11 Plan were made null and void
and of no force and effect.
(b)
For the avoidance of doubt or confusion, the following provisions of the
Agreement are specifically hereby amended as follows:
(i)
In Section 6.1(c) of the Agreement, the references to: the
disclosure statement, the Disclosure Statement Order, the Confirmation Order,
and the Chapter 11 Plan, including all approval rights of the Purchaser with
respect to any of the foregoing are hereby deleted.
(ii)
In Section 8.1(e), the references to the Confirmation Order,
including any approval rights of the Purchaser with respect thereto, are hereby
deleted.
(iii) The approval rights of the Purchaser pursuant to Section 8.1(f) of
the Agreement shall be limited exclusively to matters pertaining to matters
relating to this Agreement, including the Sale Order and the Fee Order.
1297710.2
2.
Additional Amendments to the Agreement. The Agreement is hereby further
amended as follows:
(a)
There shall be no Termination Fee payable to the Purchaser under any
circumstance, and all provisions, terms, and conditions of the Agreement referring to the
Termination Fee are hereby modified accordingly.
(b)
Section 8.1(c) is hereby amended as follows:
(i)
Section 8.1(c)(i)(G) is amended to provide that the Good Faith
Deposit shall be in the form of a certified check in amount equal to at least 10%
of amount of the Qualifying Bidder’s opening bid.
(ii)
Section 8. 1(c)(ii)(C) is amended to require that the Purchaser
provide the same confirmation as Qualified Bidders that it has not engaged in any
collusion with respect to the bidding or the sale.
(iii)
Section 8. 1(c)(ii)(E) is amended to reduce the $75,000 higher bid
increment amount to $50,000.
(iv)
Section 8.1(c)(iii) is amended to provide that the Break-Up Fee
shall be payable immediately following, and from the proceeds of, the closing of
the Alternative Transaction.
3.
No Adverse Change. The Seller represents and warrants to the Purchaser that
since the Contract Date no events or conditions have occurred which individually or in the
aggregate, have had, or may reasonably be anticipated by the Purchaser to give rise to, any
Material Adverse Effect.
4.
No Other Amendments. Except to the extent amended hereby, all of the
definitions, terms, provisions and conditions set forth in the Agreement are hereby ratified and
confirmed and shall remain in full force and effect. The Agreement and this Second Amendment
shall be read and construed together as a single agreement and the term "Agreement" and
references in the Agreement to "this Agreement," "hereunder," "hereof" or words of similar
import shall henceforth mean and be deemed a reference to the Agreement as amended and
supplemented by this Second Amendment.
5.
Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original but all of which together shall
constitute one and the same agreement.
6.
Governing Law. This Second Amendment shall be governed by, construed and
interpreted in accordance with, the laws of the State of New York, excluding choice of law
principles that would require the application of the laws of a jurisdiction other than the State of
New York.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment as of the day and year first above written.
PURCHASER:
ROCK WOOD-CWFS LLC
B
Name:
Title:
/I
SELLER:
ROCKWOOD REAL ESTATE ADVISORS LLC
By:
Naine:
Title:
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment as of the day and year first above written.
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:
1
1,
ROCKWOOD-CWFS LLC
By: Name:
Title:
ROCKWOOD REAL ESTATE ADVISORS LLC
Name:
Title:
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