EXHIBIT 10.02
FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS (this "AMENDMENT") is made effective as of
March 9, 2004, by and between XXXXX - Gateway Mall ND Fee, LLC, a Delaware
limited liability company (the "Seller"), and VP Investments, L.L.C., a Utah
limited liability company ("Buyer"), with respect to the following facts and
circumstances:
A. Seller and Buyer are parties to that certain
Agreement for Purchase and sale of Real Property and Escrow Instructions dated
as of March 5, 2004 (the "Agreement"), under which Buyer has agreed to buy from
Seller, and Seller has agreed to sell to Buyer, certain property commonly known
as "Gateway Mall", located in Bismarck, North Dakota, and more particularly
described therein (the "PROPERTY"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Agreement.
B. Seller and Buyer enter into this Amendment to amend
certain provisions of the Agreement, all upon the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Buyer hereby agree to amend the Agreement as
follows:
1. Closing Date. Section 5.2 of the Agreement is
modified to provide that the Closing Date shall be on or before March 16, 2004.
2. Property Taxes. The parties agree that,
notwithstanding North Dakota custom to the contrary, Seller shall pay the 2003
property taxes for the Property at the Close of Escrow.
3. Management Agreement. The parties acknowledge that,
by becoming owner of the ground lessee of the Property, XXXXX - Gateway Mall ND,
LLC ("Ground Lessee") Buyer will assume the existing management agreement (the
"Management Agreement") between Ground Lessee and Triple Net Properties Realty
Inc. ("Property Manager"), a copy of which is attached hereto as Exhibit A.
Furthermore, any net proceeds due to Buyer, pursuant to the approved settlement
statements for the transaction shall not be released to the Buyer, but rather
shall be paid directly to the Property Manager to be placed in the property
management account, on behalf of Buyer, for use in the management of the
Property, pursuant to the Management Agreement.
4. Note. The parties agree that the Note which has been
executed by Xxxxx X. Xxxxxx ("Xxxxxx") prior to the date hereof shall be
returned to Moffat and destroyed. The parties agree that, notwithstanding
anything to the contrary contained in the Agreement, Moffat shall, on March 15,
2004, execute a note in the amount of Eight Million Seven Hundred Thousand
Dollars ($8,700,000.00), in substantially the form attached to the Agreement as
Exhibit B, but with a maturity date which is ninety (90) days after the Close of
Escrow, with an interest rate of six percent (6%) (the "Short Term Note"). The
parties agree that, upon receipt by Buyer of the proceeds of its pending
financing with LaSalle Bank, NA of Seven Million Dollars ($7,000,000.00) (the
"LaSalle Loan"), Buyer will deliver to Escrow, for the benefit of Seller (a)
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an amount equal to Six Million Five Hundred Thousand Dollars ($6,500,000.00);
and (b) a note from Moffat in the amount of Two Million Two Hundred Thousand
Dollars ($2,200,000.00) in substantially the form attached to the Agreement as
Exhibit B, but with a maturity date which is co-terminous with the note
delivered in connection with the LaSalle Loan, and with an interest rate
calculated as provided in Section 5 of this Amendment (the "Long Term Note").
Escrow shall release to Seller the items described in clauses (a) and (b) above
upon receipt from Seller of the original Short Term Note, marked "PAID IN FULL".
5. Long Term Note Interest Rate. The Long Term Note
shall bear interest at a fixed rate equal to the rate which would provide the
Buyer and Moffat with an overall blended rate of six percent (6%). The parties
acknowledge that if Moffat retained the Short Term Loan for the entire
$8,700,000 balance, Moffat would have incurred Five Hundred Twenty Two Thousands
Dollars ($522,000) of annual interest. The amount of annual interest which will
accrue on the Long Term Note will be calculated by subtracting from Five Hundred
Twenty Two Thousands Dollars ($522,000) an amount calculated by multiplying the
initial rate owed on the LaSalle Loan by the original principal amount of the
LaSalle Loan. The interest rate for the Long Term Note shall be calculated by
dividing the amount of annual interest which will accrue on the Long Term Note
by Two Million Two Hundred Thousand Dollars ($2,200,000.00), which is the
original principal balance of the Long Term Loan.
6. Effect of Amendment. The terms and provisions of the
Agreement, as amended hereby, are reaffirmed and continue in full force and
effect. In the event of any inconsistency between this Amendment and the
Agreement, the terms of this Amendment shall govern and control.
7. Miscellaneous. This Amendment shall be binding upon
the heirs, administrators, successors and assigns (as the case may be) of the
parties hereto. Facsimile signatures appearing hereon shall be deemed to be
originals, this Amendment may be executed in one or more counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, Buyer and Seller do hereby execute this Amendment
as of the date first written above.
SELLER:
XXXXX - Gateway Mall ND Fee, LLC,
a Delaware limited liability company
By: Triple Net Properties, LLC
a Virginia limited liability company,
its Manager
By:_________________________________________
Xxxxxxx X. Xxxxxxxx, President
BUYER:
VP Investments, L.L.C., a Utah limited liability company
By:________________________________________________
Xxxxx X. Xxxxxx
Its:__________________________________________
CONSENTED AND AGREED:
XXXXX, XX _____________________________
a Virginia limited partnership Xxxxx X. Xxxxxx, individually
By: XXXXX Inc.
Its: General Partner
By:___________________________
Xxxxxxx X. Xxxxxxxx, President
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EXHIBIT A - MANAGEMENT AGREEMENT
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