FIRST AMENDMENT TO PURCHASE AGREEMENT FOR REAL PROPERTY AND ESCROW INSTRUCTIONS
Exhibit 10.41
FIRST AMENDMENT TO PURCHASE AGREEMENT FOR REAL PROPERTY
AND ESCROW INSTRUCTIONS
AND ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT FOR REAL PROPERTY AND ESCROW INSTRUCTIONS (this “First Amendment”) is made as of the 10th day of April, 2012, by and between SLHNet Investments, L.C., a Utah limited liability company (“Seller”), and KBSIII 155 NORTH 400 WEST, LLC, a Delaware limited liability company (“Purchaser”), successor-in-interest to KBS CAPITAL ADVISORS LLC, a Delaware limited liability company (“Original Purchaser”). In consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
RECITALS
A. Seller and Original Purchaser are parties to that certain Purchase Agreement for Real Property and Escrow Instructions dated as of March 8, 2012 (the “Purchase Agreement”). All initially-capitalized terms not otherwise defined herein shall have the meanings set forth in the Purchase Agreement unless the context clearly indicates otherwise.
B. The Purchase Agreement was assigned to Purchaser pursuant to an Assignment and Assumption of Purchase Agreement dated April 9, 2012, by and between Original Purchaser, as assignor, and Purchaser, as assignee.
C. Seller and Purchaser have agreed to modify the terms of the Purchase Agreement as set forth in this First Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to be legally bound, Seller and Purchaser agree as follows:
1. Recitals. The Recitals set forth above are hereby incorporated herein by reference as if the same were fully set forth herein.
2. Exhibits. Exhibits B (List of Personal Property), C (List of Leases) and E (List of Service Contracts) attached to the Purchase Agreement shall be, and hereby are, deleted therefrom, and Exhibits B (List of Personal Property), C (List of Leases) and E (List of Service Contracts) attached hereto shall be, and hereby are, substituted in their place, respectively.
3. Generators. Seller acknowledges and agrees that the Personal Property to be purchased by Purchaser in accordance with the terms and provisions of the Purchase Agreement shall include all generators located on the Property as of the Effective Date, including, without limitation, the generators listed in Exhibit B attached hereto.
4. Assumption of Service Contracts. In accordance with Section 3.3 of the Purchase Agreement, Purchaser hereby elects not to assume any of the Service Contracts, and all such Service Contracts shall be terminated by Seller at Closing.
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5. Right of Way Contract. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, on or prior to the Closing Date, Seller shall deliver to Purchaser an executed copy of the Right of Way Contract attached hereto as Exhibit D executed by Seller and the Utah Transit Authority.
6. Improvement Work. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, all improvement work for the Property disclosed by Utah’s State Construction Registry (including, without limitation, the work disclosed in Schedule 1 attached hereto) shall have been completed and paid for, and Seller covenants and agrees to deliver to Purchaser, no less than three (3) business days prior to the Closing Date, evidence reasonably satisfactory to Purchaser that all such improvement work have been completed and paid for (which evidence shall include the delivery of all invoices, receipts and lien waivers). Seller further covenants and agrees to execute at Closing any documents, undertakings or agreements reasonably required by the Title Company in order for the Title Company to issue the Approved Title Policy free and clear of any exceptions for mechanics’ liens.
7. Access Easement. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, on or prior to the Closing Date, Seller shall deliver into Escrow for recording an access easement in a form reasonably acceptable to Purchaser (the “Access Easement”), granting the owner of the Property non-exclusive vehicular and pedestrian access over Seller’s property depicted on Schedule 2 attached to this First Amendment (“Servient Estate”), executed by Seller as the owner of the Property and the Servient Estate. The Access Easement will provide that Seller will retain the right to dedicate the Servient Estate as a public street and that the Access Easement will terminate upon such dedication.
8. Compliance with Subdivision Map Act. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, the Land (or any parcel thereof), to be transferred to Purchaser in accordance with the terms and provisions of the Purchase Agreement shall constitute lawfully created parcels under all subdivision laws governing the Land (collectively, the “Subdivision Laws”) as to enable the Title Company to endorse the Approved Title Policy with an ALTA 26 endorsement (“Subdivision Endorsement”) at Closing. Seller hereby covenants and agrees, to the extent necessary, to use commercially reasonable efforts, at its sole cost and expense, to obtain a certificate of compliance from the appropriate governing agency evidencing the Land’s (or any parcel thereof) compliance with the Subdivision Laws. In the event the Land (or any parcel thereof) does not comply with the Subdivision Laws and/or the Title Company is unable to issue the Subdivision Endorsement, then Purchaser shall have the option, upon two (2) business days written notice to the Seller, to extend the Closing Date one or more times for a period not to exceed sixty (60) days in the aggregate in order to attempt to (with no obligation to do so) cause (a) the Land (or any parcel thereof) to comply with the Subdivision Laws, and/or (b) the Title Company to issue the Subdivision Endorsement.
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9. Tax Parcel Number. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, Parcel 2 of the Land shall be taxed as a separate tax parcel, which tax parcel number shall include no other property other than Parcel 2 of the Land. Seller hereby covenants and agrees, at its sole cost and expense, to use commercially reasonable efforts to cause Parcel 2 of the Land to be taxed as a separate tax parcel prior to the Close of Escrow.
10. CCI Communication Renewal. Seller shall use commercially reasonable efforts to obtain and deliver to Purchaser on or prior to the Closing Date a signed copy of CCI Communications’ lease renewal on lease terms reasonably acceptable to Purchaser, including, without limitation, the following lease terms: lease premises covering 6,600 sf, $20.45 psf FSG starting base rental rate, 3% annual escalations, 2012 base year stop, 36 month term, no free rent, no tenant improvement allowances and no unpaid leasing costs. However, such a lease renewal shall not be a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement.
11. Freedom Fast Track, LLC. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, the tenant Freedom Fast Tract, LLC shall be in lawful possession of the premises under its lease, and the Approved Estoppel delivered to Purchaser for Freedom Fast Tract, LLC shall confirm the foregoing.
12. Special Assessments. Notwithstanding anything stated to the contrary in the Purchase Agreement, as a condition to the Closing and Purchaser’s obligation to consummate the transaction contemplated by the Purchase Agreement, the special assessments levied by Xxxx Xxxx Xxxx xxx Xxxxxxxxx Xx. 000000 (SAA ID: 927) (“Special Assessments”), in the total amount of $1,105,542.30 (together with any applicable interest and any other amounts required to cause such Special Assessments to be paid in full), shall be paid by Seller at Closing, and through escrow with Escrow Holder, by wire transfer to Salt Lake City.
13. Credits for Leasing Costs. In addition to any amounts to be credited to Purchaser for Pre-Closing Leasing Costs under Section 8.4.6 of the Purchase Agreement, Seller acknowledges and agrees that Purchaser shall be entitled to a credit at Closing towards the Purchase Price for unpaid leasing costs in the amounts (to the extent not paid prior to Closing), and for the tenants, set forth in Exhibit A attached hereto and made a part hereof. Purchaser shall be obligated to pay all unpaid leasing costs for which Purchaser receives a credit pursuant to this Section 13. The provisions of this Section 13 shall not limit or impair Purchaser’s right to receive a credit for any other leasing costs covered by the provisions of the Purchase Agreement.
14. 3-14 Audit Documents. Seller acknowledges and agrees that Seller shall continue to be obligated until the Closing to provide to Purchaser (a) the Buyer’s 3-14 Audit Documents referenced in Section 3.2.2(c) of the Purchase Agreement, and (b) the answers to such questions, in written form, relating to the Property which are set forth in Schedule “1” attached to the Purchase Agreement.
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15. Property Approval Notice. The execution and delivery of this First Amendment shall have the same effect as Purchaser’s delivery to Seller of the “Feasibility Notice” prior to expiration of the “Feasibility Period” in accordance with the provisions of Section 3.2.4 of the Purchase Agreement. Also, Purchaser’s concurrent delivery to Seller of a title commitment pursuant to the provisions of Section 3.1.5 of the Purchase Agreement shall be considered delivered to Seller prior to the expiration of the Feasibility Period.
16. Effectiveness of Agreement. Except as modified by this First Amendment, all the terms of the Purchase Agreement shall remain unchanged and in full force and effect.
17. Counterparts. This First Amendment may be executed in counterparts, and all counterparts together shall be construed as one document.
18. Telecopied Signatures. A counterpart of this First Amendment that is signed by one party to this First Amendment and telecopied or emailed to the other party to this First Amendment or its counsel (i) shall have the same effect as an original signed counterpart of this First Amendment, and (ii) shall be conclusive proof, admissible in judicial proceedings, of such party’s execution of this First Amendment.
19. Successors and Assigns. All of the terms and conditions of this First Amendment shall apply to benefit and bind the successors and assigns of the respective parties.
IN WITNESS WHEREOF, Seller and Purchaser have entered into this First Amendment to Purchase and Sale Agreement and Escrow Instructions as of the date first above stated.
[SIGNATURES ON NEXT TWO PAGES]
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“SELLER”
SLHNET INVESTMENTS, L.C.,
a Utah limited liability company
By: SLH PARTNERSHIP, LLC,
a Utah limited liability company,
its Manager
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx,
Manager
“PURCHASER”
KBSIII 155 NORTH 400 WEST, LLC,
a Delaware limited liability company
By: KBSIII REIT ACQUISITION V, LLC,
a Delaware limited liability company,
its sole member
By: KBS REIT PROPERTIES III, LLC,
a Delaware limited liability company,
its sole member
By: KBS LIMITED PARTNERSHIP III,
a Delaware limited partnership,
its sole member
a Maryland corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx, Xx.,
Chief Executive Officer
EXHIBIT A
Leasing Costs
1. | Jviation: | outstanding TI of $3,506.88 |
2. | Freedom Fast Track: | outstanding LC of $17,687.52 |
3. | SuperValue: | outstanding TI of $151,668.00 |
A-1
EXHIBIT B
List of Personal Property
Specialized server room computer support equipment in Suite 125 owned by Seller
Security PC, monitor and router
Video surveillance system
Cabinetry, fixtures and appliances – UAMPS TI’s
Appliances – Agency Fusion TI’s
Cabinetry and fixtures – ChAIR TI’s
Cabinets – Smart Bomb TI’s
Cabinetry, fixtures and appliances – WECC TI’s
Generator nos. 1 2, and 3 manufactured by Onan, rated at 400-kW, 208/3-phase, diesel engine driven
Generator no. 4 was manufactured by Spectrum, rated at 135-kW, 208/3-phase, diesel engine driven
Generator no. 5 was manufactured by Cummins, rated at 400-kW, 208/3-phase, diesel engine driven
B-1
EXHIBIT C
List of Leases
Tenant | Document | Date |
Accelas dba Agency Fusion | Lease | 5/24/2011 |
ASP Realty, Inc | Lease | 11/15/1995 |
1st Amendment | 2/6/1996 | |
2nd Amendment | 12/5/1996 | |
3rd Amendment | 8/19/1997 | |
4th Amendment | 2/11/1999 | |
5th Amendment | 6/9/1999 | |
6th Amendment | 1/25/2000 | |
7th Amendment | 2/28/2005 | |
8th Amendment | 12/30/2005 | |
9th Amendment | 7/31/2010 | |
10th Amendment | 11/14/2011 | |
CCI Network Services, LLC | Lease | 12/31/2003 |
1st Amendment | 6/12/2006 | |
2nd Amendment | 4/17/2009 | |
ChAIR Entertainment Group, LLC | Lease | Undated; Lease commenced 10/1/10 |
Digitaria Interactive, Inc. | Lease | Undated; Lease commenced 11/10/11 |
Eat Sleep Play, Inc. | Lease | Undated; Lease commenced 6/1/07 |
1st Amendment | 3/12/2008 | |
2nd Amendment | 8/21/2009 | |
Freedom Fast Track, LLC | Lease | 1/26/2012 |
Xxxxx Xxxxxxxx LLP | Lease | 10/10/2007 |
1st Amendment | Undated; Extension commenced 8/1/10 | |
Internet Pipeline, Inc. | Lease | 6/13/2011 |
Xxxxxx Engineering Group Inc. | Lease | 11/30/2005 |
Assignment & Assumption | 4/15/2009 | |
1st Amendment | 5/18/2010 | |
Jviation, Inc. | Lease | 2/22/2012 |
Xxxxxxx & Xxxxx, LLC | Lease | 12/22/2010 |
C-1
1st Amendment | 12/9/2011 | |
Smart Bomb Interactive, Inc. | Lease | 9/29/2004 |
1st Amendment | 12/12/2007 | |
2nd Amendment | 6/28/2010 | |
Utah Associated Municipal Power Systems | Lease | 8/17/2010 |
First Amendment | 3/19/2012 | |
Western Electricity Coordinating Council | Lease | 12/15/2009 |
Wisan, Smith, Racker & Prescott, LLP | Lease | 3/25/2011 |
C-2
EXHIBIT D
Right of Way Contract
(Attached)
D-1
EXHIBIT E
List of Service Contracts
Contractor | Service | Date | Term |
Xxxx Xxxx | Janitorial | 4/26/1995 | Month to Month |
Mountain Alarm Corporation | Fire and Smoke Alarm | 4/18/1996 | Month to Month |
Thyssenkrupp Elevators (Dover) | Elevator Maintenance | 3/18/1997 | Five Year |
Xxxxxxxx Service | Small A/C Units for Servers | 11/17/2011 | Yearly |
E-1
SCHEDULE 1
Improvement Work
(Attached)
X-0
XXXXXXXX 0
Xxxxxxxx Xxxxxx
(Attached)
F-1
