Exhibit 9
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Agreement, dated as of February 27, 1997 is between Xxxxx Equity,
Inc., a Florida corporation (the "Company"), and AP-KEI Holdings, LLC, a
Delaware limited liability company ("Apollo"). The parties agree as follows:
1. Reference to Stock Purchase Agreement; Definitions. Reference is made to the
Stock Purchase Agreement dated as of October 10, 1996, as in effect on the date
hereof prior to giving effect to this Agreement (the "Stock Purchase
Agreement"), between the Company and Apollo. Terms defined in the Stock Purchase
Agreement, as amended hereby (the "Amended Stock Purchase Agreement"), and not
otherwise defined herein are used herein with the meanings so defined.
2. Amendments to Stock Purchase Agreement.
2.1. Amendment to Definition of "Affiliate". The definition of
"Affiliate" set forth in Section 7.1 of the Stock Purchase Agreement is amended
to read in its entirety as follows:
"Affiliate: An "affiliate" of, or a person "affiliated" with,
a specified person is (1) a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with the person specified or (2) any relative or spouse
of such person, or any relation of such spouse, who has the same home
as such person. As used in this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common
control") means the possession, direct or indirect, of the power,
whether exercised or not, to direct or cause the acquisition and/or
disposition by such person of securities of the Company, whether
through the ownership of voting securities or otherwise. To clarify the
foregoing, a Person (including, without limitation, partners, members
of limited liability companies, or co-investors) which would, under the
foregoing definitions, be an "Affiliate" solely by reason of its common
control with a specified person or an Affiliate of such specified
person shall not be an "Affiliate" of such specified person. The term
Affiliates of Apollo includes, without limitation, (i) as of the
Closing Date, the persons and entities listed on Schedule 7.1; (ii) any
person employed by Apollo or any of its Affiliates who replaces any
individual named on Schedule 7.1 or who holds the same or any
comparable position for Apollo or any of its Affiliates listed on
Schedule 7.1; (iii) any Associate which satisfies the provisions of
clauses (1) or (2) of the first sentence of this definition; and (iv)
XXXXX II Realty Trust, Inc., a Maryland corporation."
2.2. Amendment to Definition of "Eligible Institution". The definition
of "Eligible Institution" set forth in Section 7.1 of the Stock Purchase
Agreement is amended to read in its entirety as follows:
"Eligible Institution: shall mean (a) a commercial bank or
investment bank organized, or any subsidiary, branch or agency of a
foreign commercial bank or investment bank operating, under the laws of
the United States, or any State thereof, and having total assets in
excess of $1,000,000,000; (b) a savings and loan association or savings
bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $1,000,000,000; or (c) a
finance company, insurance company or other financial institution
organized under the laws of the United States, or any State thereof,
that is engaged in purchasing or otherwise investing in commercial
loans in the ordinary course of business, having total assets in excess
of $100,000,000."
3. General. The Amended Stock Purchase Agreement is confirmed as being in full
force and effect. This Agreement, the Amended Stock Purchase Agreement and the
other documents referred to herein or therein constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and current understandings and agreements,
whether written or oral, with respect to such subject matter. The invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of any other term or provision hereof. The headings in this
Agreement are for convenience of reference only and shall not alter, limit or
otherwise affect the meaning hereof. Each of this Agreement and the Amended
Stock Purchase Agreement may be executed in any number of counterparts, which
together shall constitute one instrument, and shall bind and inure to the
benefit of the parties and their respective successors and permitted assigns.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
(OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE OF NEW YORK.
Each of the undersigned has executed this Agreement under seal by a
duly authorized officer as of the date first set forth above.
XXXXX EQUITY, INC.
By /s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman and President
AP-KEI HOLDINGS, LLC, as Investor
By AP-MM KEI HOLDINGS, LLC,
its Managing Member
By KRONUS PROPERTY, INC,
its Managing Member
By /s/ Xxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
