Exhibit 10.417
Xxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
Third Amendment in Agreement
THIRD AMENDMENT TO AGREEMENT
This THIRD AMENDMENT TO AGREEMENT (the "Third Amendment") is made and
entered into as of the 15th day of November 2004, by and between Fox Creek
Village, LLC, a Colorado limited liability company ("Seller") and Inland Real
Estate Acquisitions, Inc. ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Agreement dated
August 25, 2004 as revised by letter dated August 25, 2004, and further revised
by "Amendment to Agreement" dated October 1, 2004 and further revised by "Second
Amendment to Agreement" dated October 13, 2004 (the "LETTERS") (collectively,
the "AGREEMENT"), for the sale and purchase of the property commonly known as
Fox Creek Village Shopping Center located in Longmont, Colorado, as legally
described by the Agreement (the "Property").
WHEREAS, Purchaser and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Closing Date" as set forth in paragraph 1 of the letter is
hereby amended by deleting the date "November 15" found in
line 1 and inserting: "November 22" therein.
2. The Third Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which
taken together shall constitute one agreement. Each person
executing this Third Amendment represents that such person has
full authority and legal power to do so and bind the party on
whose behalf he or she has executed this Third Amendment. Any
counterpart to this Third Amendment may be executed by facsimile
copy and shall be binding on the parties.
Except as modified herein, the Agreement shall remain immodified and in
full force and effect.
(SIGNATURE PAGE FOLLOWS)
Fox Creek Village Shopping Center
Longmont, CO
Amendment to Agreement
Seller:
FOX CREEK VILLAGE, LLC, a Colorado limited
liability company
By: G & W, LLC, a Colorado limited liability
Company, its Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
------------------------
Title: Mgr
-----------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
---------------------------
Name: G. XXXXXX XXXXXXX
-------------------------
Title: PRESIDENT
------------------------
2
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT (the "SECOND AMENDMENT") is made and
entered into as of the 13th day of October, 2004, by and between FOX CREEK
VILLAGE, LLC, a Colorado limited liability company ("SELLER"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Agreement dated
August 25, 2004, as revised by letter dated August 25, 2004, and further revised
by "Amendment to Agreement" dated October 1, 2004 (the "LETTERS") (collectively,
the "AGREEMENT"), for the sale and purchase of the property commonly known as
Fox Creek Village Shopping Center, located in Longmont, Colorado, as legally
described by the Agreement (the "PROPERTY").
WHEREAS, Purchaser and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. The reduction of 368 square feet within the Shopping Center
referred to in the October 1, 2004 Amendment shall result in a
reduction in Purchase Price (based on the following formula: 368
x $22.00 = $8,096 per annum + 6.91% cap rate = $117,163) at the
Closing of $117,163.
2. The Ground Lease outlot parcel referred to on Exhibit B of the
Agreement as Vacant Suite F1 shall be included in the Master
Lease; however, $300,000 of the Purchase Price shall remain in
escrow for up to two (2) years following the Closing. If Seller
is unable to lease said outlot within the 24 months following
the Closing, then the $300,000 in escrow shall revert back to
the Purchaser as if it were a credit at Closing. If, however,
Seller does succeed in leasing the parcel for an annual ground
rent of $70,000 or more, then Seller shall receive the $300,000
from escrow at the time the lease complies with all the terms
and conditions of the Agreement. If Seller succeeds in leasing
the parcel for less than $70,000 annual gound rent, then Seller
shall receive from escrow the $300,000 less $13,320 for each
$1,000 of annual ground rent below $70,000. The remainder of the
$300,000 shall be the property of Purchaser. FOR EXAMPLE, if
Seller leases the parcel for an annual ground rent of $60,000,
then $300,000 less $133,200 (10 x $13,320) or $166,800 shall be
delivered to Seller and the remaining $133,200 shall be
delivered to Purchaser. Any income earned on the escrowed funds
shall be divided proportionately between Seller and Purchase.
3. All other objections of Purchaser are hereby waived and
Purchaser desires to proceed with the Closing in accordance with
the terms of the Agreement. Purchaser shall deposit an
additional $250,000 xxxxxxx money with the Title Company on or
before October 18, 2004.
Except as modified herein, the Agreement shall remain unmodified and in
full force and effect.
SELLER:
FOX CREEK VILLAGE, LLC, a Colorado
limited liability company
By: G & W, LLC, a Colorado limited
liability company, its Manager
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------
Title: Manager
------------------------
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx,
Personally, for the purpose of
incurring the obligations described
in Paragraph 2, hereof, does hereby
acknowledge that he owns a direct
or indirect interest in Seller and
that he will benefit from the
agreements of Seller and Purchaser
described herein.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
-------------------------------
Name: G. XXXXXX XXXXXXX
------------------------------
Title: President
-----------------------------
-2-
Xxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
Amendment to Agreement
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into
as of the 1st day of October 2004, by and between Fox Creek Village, LLC, a
Colorado limited liability company ("Seller") and Inland Real Estate
Acquisitions, Inc. ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Agreement dated
August 25, 2004 as revised by letter dated August 25, 2004 (the "letter")
(collectively, the "Agreement"), for the sale and purchase of the property
commonly known as Fox Creek Village Shopping Center located in Longmont,
Colorado, as legally described by the Agreement (the "Property").
WHEREAS, Purchaser and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period" as defined in paragraph 10 of the
letter is hereby amended by deleting lines 5 through lines 17 in
its entirely and inserting: "October 13, 2004 for purposes of
reviewing and approving the following items: (a) resolution of
the matters set forth in Buyer's title objection letter dated
September 30, 2004; (b) final revised ALTA Survey; and (c)
resolution of the approximate 368 square foot discrepancy in
Property leaseable floor area.
2. For a period of one (1) year from the date of Closing (the
"Indemnity Period"), Seller and Xxxxxxx Xxxxx (personally)
Xxxxxxx Xxxxxxxx hereby jointly and severally covenant and agree
to indemnity, defend and hold harmless Purchaser from and
against any non-payment of any rental, reimbursement, and/or
other charges due and payable ("Rent") by each of the following
described Property tenants under its respective lease: (i) Cost
Cutters; and (ii) Xxxxxxxx Investments, LLC (Vino Liquors)
(respectively, an "Indemnity Tenant," and collectively, the
"Indemnity Tenants"), If, at any time during the Indemnity
Period, either (or both) of the Indemnity Tenants is then more
than 30-days past due in the payment of Rent, upon notice
thereof by Purchaser to Seller, Seller and Xxxxxxx Xxxxx &
Xxxxxxx Xxxxxxxx shall immediately remit to Purchaser such sums
as
Fox Creek Village Shopping Center
Longmont, CO
Amendment to Agreement
required to bring the Indemnity Tenant or Indemnity Tenants
current in the payment of Rent; and thereafter for the remainder
of the Indemnity Period, Seller and Xxxxxxx Xxxxx & Xxxxxxx
Xxxxxxxx shall pay Rent to Purchaser, on a monthly basis, in
accordance with the terms of the Indemnity Tenant and/or
Indemnity Tenants lease or leases. It is the intention of
Seller, Xxxxxxx Xxxxx & Xxxxxxx Xxxxxxxx and Purchaser that
Purchaser shall be "made whole" in regard to the payment of Rent
by the Indemnity Tenants and at no time shall Purchaser be
entitled to retain Rent from each of Seller and Xxxxxxx Xxxxx &
Xxxxxxx Xxxxxxxx and an Indemnity Tenant for the same rental
period. Upon receipt of any duplicate payments, Purchaser shall
immediately remit same to Seller and Xxxxxxx Xxxxx & Xxxxxxx
Xxxxxxxx.
3. This Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken
together shall constitute one agreement. Each person executing
this Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he
or she has executed this Amendment. Any counterpart to this
Amendment may be executed by facsimile copy and shall be binding
on the parties.
Except as modified herein, the Agreement shall remain unmodified and in
full force and effect.
(SIGNATURE PAGE FOLLOWS)
0
Xxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
Amendment to Agreement.
Seller:
FOX CREEK VILLAGE, LLC, a Colorado limited
liability Company
By: G & W, LLC, a Colorado limited liability
company, its Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------
Title: Manager
----------------------
/s/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx,
personally, for the purpose of incurring the
obligations described in Paragraph 2,
hereof, does hereby acknowledge that he owns
a direct or indirect interest in Seller and
that he will benefit from the agreements of
Seller and Purchaser described herein.
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-----------------------------------------
Name: [ILLEGIBLE]
---------------------------------------
Title: President
--------------------------------------
3
[GRAPHIC]
August 25, 2004
G. Xxxxxx Xxxxxxx, Vice Chairman
c/o Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Re: FOX CREEK VILLAGE, LONGMONT, COLORADO COUNTEROFFER
Dear Xx. Xxxxxxx:
The undersigned, Fox Creek Village, LLC, is the owner of the Fox Creek
Village Shopping Center in Longmont, Colorado (the "Property"). We are in
receipt of your letter to Chandelle Development, LLC, c/o Xxxx X. Xxxxxxxx of CB
Xxxxxxx Xxxxx (Broker), revised as of August 17, 2004, offering to purchase the
Property (the "Offer Letter"). A copy of the Offer Letter is attached hereto and
by this reference made a part hereof. We wish to accept your offer to purchase
the Property on the terms set forth in the Offer Letter with the following
changes.
1. The Closing Date for the sale of the Property shall be November
15, 2004. Paragraphs 1 and 11 of the Offer Letter shall be amended accordingly
as shall any other provision of the Offer Letter which references the Closing
Date.
2. As to Paragraph 3 of the Offer Letter, please be advised that
there are certain Leases which give tenants the right or option to extend their
particular Lease beyond the initial Lease Term. Seller will provide purchaser
with copies of all Leases for review by Purchaser in accordance with Paragraph
10 below.
3. As to the first sentence of the second paragraph of Paragraph 4,
Seller will terminate only those contracts which are, by their terms, subject to
termination by Seller.
4. Paragraph 6 of the Offer Letter shall be amended to require that
Seller furnish Purchaser with estoppel letters from (a) King Soopers (Store
Lease and Fuel Site Lease), Starbuck's Coffee, World Savings Bank (Ground
Lease), and Vino Cellars Wine and Liquor; and, in addition, (b) not less than
eighty-five percent (85%) of the remaining square footage represented by
executed Leases in existence as of ten (10) days prior to the Closing Date. As
to the remaining fifteen percent (15%) of such additional leased space, in the
event that Seller is unable to obtain estoppel letters, it shall provide a
Seller estoppel to Purchaser with regard to such space.
5. As to the last sentence of Paragraph 11, although Seller will be
given no credit for unpaid past-due or delinquent rents at Closing, Seller shall
be entitled to collect such rents from such tenants following Closing.
6. Paragraph 12 of the Offer Letter shall be deleted in its
entirety.
Fox Creek Village, LLC 000 Xxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxxx 00000
303/000-0000 Fax 303/000-0000
G. Xxxxxx Xxxxxxx, Vice Chairman
August 25, 2004
Page 2
8. The reference to "audited financial statements" in Paragraphs 19
and 20 of the Offer Letter is for 2003 paid by Purchaser and will require an
Audit Rep Letter from seller to KPMG. Seller shall provide Purchaser with
financial statements which are certified for accuracy by the management of
Seller and reviewed by independent certified public accountants.
9. The last sentence of the first paragraph of Paragraph 20 of the
Offer Letter is amended by changing "6,000 sf" to "4,674 sf."
10. Within ten (10) days following the date of Purchaser's
acceptance of this Counteroffer, Seller will provide to Purchaser all of the
information required to be delivered from Seller to Purchaser, including, but
not limited to, the information described in Paragraphs 8, 9, 11, 15, 18, 19,
and 20 of the Offer Letter. Purchaser shall have until the close of business on
the 37th day following its acceptance of this Counteroffer (the "Due Diligence
Period") to review such information and make appropriate inspections of the
Property, including, but not limited to: (a) making its physical site inspection
of the Property; (b) reviewing existing Leases and proposed leases; (c)
reviewing tenant and guarantor financial statements and tenant insurance
certificates; (d) reviewing environmental reports and making its own
environmental inspection; (e) reviewing the status of title to the Property and
the updated survey of the Property, (f) reviewing the construction of
improvements on the Property to the extent such improvements are constructed by
the end of the Due Diligence Period; (g) reviewing guarantees and warranties of
contractors and subcontractors; (h) reviewing Seller's financial information;
and (i) reviewing the form of the tenant estoppel letter to be delivered from
Seller to Purchaser.
11. On or before 5:00 p.m. (MDT) on the last day of the Due
Diligence Period, Purchaser may give Seller and title company notice that it
does not wish to proceed with the closing of the transaction contemplated
hereby, which notice shall be in writing. If such notice is given, the $250,000
xxxxxxx money deposited by Purchaser shall be immediately returned to Purchaser
and this agreement shall be of no further force and effect. In the event that
Purchaser fails to give such notice, then the contract shall be in full force
and effect and, within three (3) business days following the Due Diligence
Period, Purchaser will deposit an additional $250,000 xxxxxxx money with Title
Company.
12. Following the Due Diligence Period, the $500,000 xxxxxxx money
deposited by Purchaser shall be non-refundable unless any one of the following
conditions of closing is not met: (a) there must be no material adverse change
in the physical condition of the Property; (b) there must be no material adverse
change in the Leases (in the aggregate); (c) there must be no material adverse
change in the status of title to the Property which change remains uncured as of
G. Xxxxxx Xxxxxxx, Vice Chairman
August 25, 2004
Page 3
the Closing Date; (d) Seller must deliver to Purchaser the estoppel letters
described in Paragraph 6 of the Offer Letter, as amended by paragraph 3 hereof;
(e) Seller must meet the construction obligations described in Paragraph 5 of
the Offer Letter, the obligations set forth in Paragraph 16 of the Offer Letter,
and the leasing obligations set forth in Paragraph 20 of the Offer Letter; and
(f) all warranties and representations of the Seller set forth in the Offer
Letter must be true and correct as of the Closing Date, and (g) Paragraph 13 of
the Offer Letter. If Closing does occur, the $500,000 xxxxxxx money shall be
delivered to Seller and applied against the purchase price of the Property.
13. Each of us acknowledge that we intend to be legally bound by the
terms of the Offer Letter, as amended by this Counteroffer, and that, together,
constitute a contract between us.
14. This Counteroffer shall terminate unless accepted by you in
writing on or before Friday, August 27, 2004, at 5:00 p.m., MDT.
If the above provisions amending your Offer Letter are acceptable to you, please
so indicate by executing and dating the "Acknowledged and Accepted" signature
line set forth below.
FOX CREEK VILLAGE, LLC, a Colorado
limited liability company
By: G & W, LLC, a Colorado limited
liability company, its Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx, Manager
ACKNOWLEDGED AND ACCEPTED:
Inland Real Estate Acquisitions, Inc.
By: /s/ G. Xxxxxx Xxxxxxx
------------------------------------------
G. Xxxxxx Xxxxxxx, Vice Chairman
Date: 8/25/04
----------------------------------------
G. Xxxxxx Xxxxxxx, Vice Chairman
August 25, 2004
Page 3
the Closing Date; (d) Seller must deliver to Purchaser the estoppel letters
described in Paragraph 6 of the Offer Letter, as amended by paragraph 3 hereof;
(e) Seller must meet the construction obligations described in Paragraph 5 of
the Offer Letter, the obligations set forth in Paragraph 16 of the Offer Letter,
and the leasing obligations set forth in Paragraph 20 of the Offer Letter; and
(f) all warranties and representations of the Seller set forth in the Offer
Letter must be true and correct as of the Closing Date, and (g) Paragraph 13 of
the Offer Letter. If Closing does occur, the $500,000 xxxxxxx money shall be
delivered to Seller and applied against the purchase price of the Property.
13. Each of us acknowledge that we intend to be legally bound by the
terms of the Offer Letter, as amended by this Counteroffer, and that, together,
constitute a contract between us.
14. This Counteroffer shall terminate unless accepted by you in
writing on or before Friday, August 27, 2004, at 5:00 p.m., MDT.
If the above provisions amending your Offer Letter are acceptable to you, please
so indicate by executing and dating the "Acknowledged and Accepted" signature
line set forth below.
FOX CREEK VILLAGE, LLC, a Colorado
limited liability company
By: G & W, LLC, a Colorado limited
liability company, its Manager
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx, Manager
ACKNOWLEDGED AND ACCEPTED:
Inland Real Estate Acquisitions, Inc.
By: /s/ G. Xxxxxx Xxxxxxx
------------------------------------------
G. Xxxxxx Xxxxxxx, Vice Chairman
Date: 8/25/04
----------------------------------------
[INLAND(R) LOGO]
INLAND REAL ESTATE ACQUISITIONS, INC.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000 Fax: 4935
xxx.xxxxxxxxxxx.xxx
REVISED AUGUST 17, 2004
Chandelle Development, LLC (Seller)
C/o CB Xxxxxxx Xxxxx (Broker)
Attn: Xxxx X. Xxxxxxxx
0000 X. Xxxxxxxx Xx.
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Re: FOX CREEK VILLAGE
LONGMONT, COLORADO
Dear Xx. Xxxxxxxx:
This letter represents this corporation's offer to purchase the Fox Creek
Village Shopping Center with 139,730 net rentable square feet (which includes
39,200 ground lease square feet), situated on approximately 14 acres of land,
located at 1601, 1611, 1631, 1635, & 0000 Xxxx Xx. and 000 Xxxx 00xx Xxxxxx,
Xxxxxxxx, Xxxxxxxx. (See Exhibit A attached).
The above property shall include all the land and buildings and common
facilities, as well as all personalty within the buildings and common areas,
supplies, landscaping equipment, and any other items presently used on the site
and belonging to owner, and all intangible rights relating to the property (with
the exception that the above property shall not include the buildings and the
personalty within the buildings with regard to Suite D-1 (World Savings Bank),
Suite F-1 (vacant) and the pad site for the King Soopers Fuel Site).
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $21,000,000.00 all cash, plus or
minus prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid at
CLOSING 30 DAYS following the acceptance of this agreement (see
Paragraph 10).
Purchaser shall allocate the land, building and depreciable
improvements prior to closing.
2. Seller represents and warrants (TO THE BEST OF THE SELLER'S
KNOWLEDGE), that the above referenced property is leased to the
tenants described on Exhibit B on triple net leases covering the
building and all of the land, parking areas, reciprocal easements and
REA/OEA agreements (if any), (with the exception that the triple-net
leases for World Savings Bank, Suite F-1, and King Soopers Fuel Site
are ground leases and do not cover the building) for the entire terms
and option periods. Any concessions given to any tenants that extend
beyond the closing day shall be settled at closing by seller giving a
full cash credit to Purchaser for any and all of those concessions.
3. Seller warrants and represents (TO THE BEST OF THE SELLER'S
KNOWLEDGE), that the property is free of violations, and the interior
and exterior structures are in a good state of repair, free of leaks,
structural problems, and mold, and the property is in full compliance
with Federal, State, City and County ordinances, environmental laws
and concerns, and no one has a lease that exceeds the lease term
stated in said leases, nor does anyone have an opinion or right of
first refusal to purchase or extend, nor is there any contemplated
condemnation of any part of the property, nor are there any current or
contemplated assessments.
4. Seller warrants and represents (TO THE BEST OF THE SELLER'S
KNOWLEDGE), that during the term of the leases the tenants and
guarantors are responsible for and pay all operating expenses relating
to the property on a prorata basis, including but not limited to, real
estate taxes, REA/OEA agreements, utilities, insurance all common area
maintenance, parking lot and the building, etc.
[ILLEGIBLE]
PAGE 0
XXX XXXXX XXXXXXX, XXXXXXXX, XX
8/5/04
operating expenses based on the ground area of their respective
buildings and with King Soopers paying its pro-rata share of the
operating expenses for its fuel site based on the total square footage
of the pad site).
Prior to closing, Seller shall not enter into or extend any agreements
without Purchaser's approval and any contract presently in existence
not accepted by Purchaser shall be terminated by Seller. Any work
presently in progress on the property shall be completed by Seller
prior to closing.
5. It is understood that the Seller, prior to closing, shall be liable
and responsible at their sole cost and expense, to complete the
construction of the 139,730 square foot shopping center (which
includes 39,200 ground lease square feet) and all of the land. Upon
completion of said construction, Seller shall be responsible for
obtaining final unconditional occupancy permits which shall be issued
from the City of Longmont, Colorado and/or any required governmental
agencies for the shopping center. Seller shall indemnify and warrants
and represents to Purchaser that Purchaser shall have no obligation
whatsoever regarding the construction of the above shopping center or
placing tenants into the rentable rental spaces.
Any and all tenants and guarantors shall acknowledge in writing that
they shall look solely to the Seller, but not to the Purchaser and
titleholder, for anything regarding the construction or improvements
of the above-referenced shopping center.
Said construction shall be subject to Purchaser's written approval and
shall be completed in total in accordance with all the plans and
specifications as accepted by the City of Longmont, Colorado for the
shopping center. Completion shall be deemed to have occurred after the
Seller delivers to Purchaser a final unconditional certificate of
occupancy for each of the buildings and a certificate for the property
signed by the independent project architect and independent engineer
that the construction of the shopping center has been fully completed
in accordance with the plans and specifications as agreed to by the
City of Longmont, Colorado, and all applicable governmental rules,
ordinances, regulations and requirements have been satisfied, and each
and every tenant, guarantor or subtenant shall accept their space "as
is" and take total possession, opens for business and commences full
rental payments. Seller shall be solely liable for any and all "punch
list" and warranty items requested by any tenant at the property and
shall also be liable for construction "call backs".
Seller shall indemnify and guarantee to absolutely pay any costs
whatsoever to complete the construction of the above shopping center,
including any costs whatsoever needed to place each of the tenants
into their agreed spaces according to each tenant's lease, which
leases shall be subject to Purchaser's approval.
6. Ten (10) days prior to closing Seller shall furnish Purchaser with
estoppel letters acceptable to Purchaser from all tenants, guarantors,
and parties to reciprocal and/or operating easement agreements, if
applicable.
7. Seller is responsible for payment of any LEASING BROKERAGE FEES or
commissions which are due any leasing brokers for the existing leases
stated above or for the renewal of same.
8. This offer is subject to Seller supplying to Purchaser prior to
closing a certificate of insurance from the tenants and guarantors in
the form and coverage acceptable to Purchaser for the closing.
9. It is understood that Seller has in its possession Level 1
Environmental Reports (Level 2 if required) which Seller will supply
to Purchaser 10 days prior to closing. Seller shall have said reports,
which must be acceptable to Purchaser, updated and re-certified to
Purchaser at closing, all at Seller's cost.
10. The above sale of the real estate shall be consummated by conveyance
of a full warranty deed from Seller to Purchaser's designee, with the
Seller paying any city, state, or county transfer taxes for the
closing, and Seller agrees to cooperate with Purchaser's lender, if
any, and the money lender's escrow.
PAGE 0
XXX XXXXX XXXXXXX, XXXXXXXX, XX
8/5/04
11. The Closing shall occur through Chicago Title & Trust Company, in
Chicago, Illinois with Xxxxx Xxxxxx as Escrowee, 30 days following
acceptance of this agreement, at which time title to the above
property shall be marketable; i.e., free and clear of all liens,
encroachments and encumbrances, and an ALTA from B owner's title
policy with complete extended coverage and required endorsements,
waiving off all NEW construction, including 3.1 zoning including
parking and loading docks, and insuring all improvements as legally
conforming uses and not as non-conforming or conditional uses, paid by
Seller, shall be issued, with all warranties and representations being
true now and at closing and surviving the closing, and each party
shall be paid in cash their respective credits, including, but not
limited to, security deposits, rent and expenses, with a proration of
real estate taxes based (at Purchaser's option) on the greater of 110%
of the most recent xxxx or latest assessment, or the estimated
assessments for 2003 and 2004 using the Assessor's formula for these
sales transactions, with a later reproration of taxes when the actual
bills are received. At closing, no credit will be given to Sellers for
any past due, unpaid or delinquent rents.
12. It is understood that the Seller has in its possession an appraisal of
the property prepared by an MAI or other qualified appraiser,
acceptable to Purchaser or Purchaser's lender, if any, and shall
deliver copies of such appraisal to Purchaser within 10 days of the
acceptance of this offer and shall cause the appraiser to re-certify
an appraised amount not less than the Purchase Price and re-issue said
appraisal to, and in the name of, Purchaser or Purchaser's lender, all
at Seller's cost.
13. Neither Seller (Landlord) or any tenant and guarantor shall be in
default on any lease or agreement at closing, nor is threatened or
pending litigation.
14. Seller warrants and represents that he has paid all unemployment taxes
to date.
15. Prior to closing, Seller shall furnish to Purchaser copies of all
guarantees and warranties which Seller received from any and all
contractors and sub-contractors pertaining to the property. This offer
is subject to Purchaser's satisfaction that all guarantees and
warranties survive the closing and are assignable and transferable to
any titleholder now and in the future.
16. This offer is subject to the property being 100% occupied at the time
of closing, with all tenants occupying their space, open for business
and paying full rent, CAM, real estate taxes and insurance current. In
the event that it is less than 100% occupied and 100% gross rent
collected, the Seller shall escrow and amount equal to the rent and
all reimbursable expenses for any vacancy and any tenant not paying
full rent current based on the attached rent roll. The amount of the
escrow shall be equal to two years of these payments. As an example,
if 1,000 square feet were vacant or not paying rent at closing and the
rent for the space was $22.00 per square foot and the CAM, tax and
insurance were an additional $2.00 per square foot, then the escrow
would be equivalent to $24.00 x 1,000 square feet x 2 years, or
$48,000. Seller shall be responsible for leasing all space involved
with the above escrow and shall be responsible for leasing all space
involved with the above escrow and shall be responsible for all
leasing commissions, tenant improvements and all other costs
associated with placing a third party tenant into said space. Once a
tenant acceptable to Purchaser is placed into said space and is paying
full rent current, then the Seller shall be paid from the escrow any
amount of funds unused for that space.
17. Seller shall be responsible for payment of a real estate brokerage
commission, as per their agreement, to CB Xxxxxxx Xxxxx. Said
commission shall be paid through the closing escrow.
18. Fifteen (15) days prior to closing, Seller must provide the title as
stated above and a current Urban ALTA/ACSM spotted survey in
accordance with the minimum standard detail requirements for ALTA/ACSM
Land Title surveys jointly established and adopted by ALTA and ACSM in
1999 and includes all Table A optional survey responsibilities and
acceptable to Purchaser and the title company.
19. Seller agrees to immediately make available and disclose all
information that Purchaser needs to evaluate the above property,
including all inducements, abatements, concessions or cash payments
given to tenants, and for CAM, copies of the bills. Seller agrees to
cooperate fully with
PAGE 0
XXX XXXXX XXXXXXX, XXXXXXXX, XX
8/5/04
Purchaser and Purchaser's representatives to facilitate Purchaser's
evaluations and reports, including at least a one-year audit of the
books and records of the property.
20. IT IS UNDERSTOOD THAT THIS OFFER IS CONTINGENT UPON SELLER, AT
SELLER'S EXPENSE, HAVING THE LEASES FOR WORLD SAVING BANK, SQUEEZE
INTERNATIONAL, LLC AND POSTNET EXECUTED BY CLOSING, WITH EACH TENANT
ACCEPTING THEIR SPACE, OPEN FOR BUSINESS (EXCEPT FOR WORLD SAVINGS
BANK) AND COMMENCING FULL RENT PAYMENTS, INCLUDING CAM, TAXES AND
INSURANCE ON A PRORATE BASIS. AT CLOSING, THE SELLER SHALL MAKE THE
PURCHASER WHOLE WITH REGARDS TO THE RENT FOR ANY OF THE ABOVE TENANTS
FROM CLOSING UNTIL THEY COMMENCE FULL RENTAL PAYMENTS. THIS OFFER IS
FURTHER CONTINGENT UPON SELLER, AT SELLER'S EXPENSE, HAVING AN
ADDITIONAL 6,000 SF OF THE VACANT SPACE WITH SIGNED LEASES PRIOR TO
CLOSING.
This offer is, of course, predicated upon the Purchaser's review and
written approval of the existing leases, new leases, lease modification (if
any), all tenant correspondence, REA/OEA agreements, tenants' and
guarantors' financial statements, representations of income and expenses
made by Seller, site inspection, environmental, appraisal, etc., and at
least one year of audited operating statements on said property is required
that qualify, comply with and can be used in a public offering.
If this offer is acceptable, please HAVE THE SELLER sign the original
of this letter and initial each page, keeping copies for your files and
returning the original to me by AUGUST 20, 2004.
Sincerely,
ACCEPTED INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By:
-----------------------------
Date: /s/ G. Xxxxxx Xxxxxxx 8/25/04
---------------------------- ------------------------------
G. Xxxxxx Xxxxxxx
Vice Chairman
SITE PLAN
[GRAPHIC]
INVESTMENT OF PROJECTS INSTITUTIONAL GROUP CBRE
EXHIBIT B
FOX CREEK VILLAGE
LONGMONT, COLORADO
LEASE LEASE
ANNUAL MONTHLY RENT COMMENCEMENT EXPIRATION
TENANTS S.F. BASE RENT BASE RENT PER SQ. FOOT DATE DATE
--------------------------------------------------------------------------------------------------------------------
King Soopers, Inc. 68,657 895,100.00 57,925.00 $ 10.12 November-03 November-23
King Soopers Fuel
Site (Ground Lease) 29,200 20,000.00 1,666.67 November-03 November-18
Subway 1,580 34,764.00 2,897.00 $ 22.00 March-04 March-09
Starbuck's Coffee 1,500 40,500.00 3,375.00 $ 27.00 June-04 June-09
World Savings Bank
(Ground Lease) 3,500 88,000.00 7,333.33 April-04 April-24
Vino Cellars Wine
and Liquor 3,948 82,908.00 6,909.00 $ 21.00 January-04 January-14
Nicolo's Chicago
Style Pizza 2,477 54,494.00 4,541.17 $ 22.00 February-04 February-09
Eyeluminations 1,400 30,800.00 2,666.67 $ 22.00 February-04 February-09
Squeeze
International, LLC 1,400 31,500.00 2,625.00 $ 22.50 September-04 August-09
Caliber Cleaners 1,300 29,904.00 2,492.00 $ 23.00 February-04 February-09
Cost Cutters 1,300 29,900.00 2,491.67 $ 23.00 March-04 February-09
HI-FI Nails 1,300 29,900.00 2,491.67 $ 23.00 May-04 May-09
PostNet 1,300 28,600.00 2,383.33 $ 22.00 October-04 September-09
Shape Up to Ship Out 1,300 27,300.00 2,275.00 $ 21.00 June-04 May-09
Vacant (Suite B-3)
(Master Lease) 4,784 105,248.00 8,770.67 $ 22.00 5 yrs
Vacant (Suite B-5)
(Master Lease) 2,573 56,605.00 4,717.17 $ 22.00 5 yrs
Vacant (Suite C-2)
(Master Lease) 1,500 33,000.00 2,750.00 $ 22.00 5 yrs
Vacant (Suite C-1)
(Master Lease) 1,450 31,900.00 2,668.33 $ 22.00 5 yrs
Vacant (Suite C-3)
(Master Lease) 1,400 30,800.00 2,566.67 $ 22.00 5 yrs
Vacant (Suite B-2)
(Master Lease) 1,861 29,942.00 2,495.17 $ 22.00 5 yrs
Vacant (Suite F-1)
(Master Lease) (Ground Lease) 6,500 70,000.00 5,833.33 20 yrs
TOTALS 139,730 1,581,166.00
