SECOND AMENDMENT TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Second Amendment to Real Estate Purchase and Sale Agreement ("Second
Amendment") is made and entered into as of the Effective Date of 11/3,
1997, by and between EAGLE HARDWARE & GARDEN, INC., a Washington corporation
("Buyer") and TERRACE POINT PARTNERSHIP, a Colorado general partnership
("Seller").
RECITALS
A. Buyer and Seller entered into a Real Estate Purchase and Sale Agreement
dated July 2, 1996 (the "Agreement"), together with a First Amendment thereto in
August 27, 1996.
B. By letter dated April 24, 1997, Buyer notified Seller that it had been
unable to obtain necessary permits and approvals, and that the Agreement was
effectively terminated. Buyer requested and received the return of its $50,000
deposit from Chicago Title Insurance Company.
C. The parties now desire to reinstate the Agreement, subject to certain
modifications set forth below, by entering into this Second Amendment.
NOW, THEREFORE, the parties hereby reinstate and amend the Agreement as
follows:
REINSTATEMENT AND AMENDMENTS
1. The Agreement is hereby reinstated in its entirety, except as modified
hereinafter, and the First Amendment is hereby superseded by this Second
Amendment.
2. The Property shall now consist of approximately 14.9707 acres rather
than 12.22 acres.
3. Section 1 is amended to change the estimated square footage from
532,490 square feet to 652,120 square feet and to change the estimated purchase
price from $2,662,450 to $3,260,600.
4. Section 2 is amended to provide that Buyer shall deposit the $50,000
xxxxxxx money with the Closing Agent within ten (10) business days after the
Effective Date of this Second Amendment.
5. Section 3 is amended as follows:
a) Buyer hereby waives contingencies Sub-sections 3.1 and 3.2.
b) Buyer shall have one hundred twenty (120) days from the
Effective Date of this Second Amendment (the "Contingency Period") to satisfy or
waive Sub-section 3.3.
c) Buyer may extend the Contingency Period two (2) thirty (30) day
periods by paying Seller $5,000 for each 30 day extension. Each $5,000 payment
shall be nonrefundable to Buyer (except in the case of Seller's default under
the Agreement) but credited to the purchase price at closing.
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6. Section 6 is amended as follows:
(a) Within seven (7) days from the Effective Date of this Second
Amendment, Seller shall provide Buyer with an update to a commitment for owner's
extended coverage title insurance issued by Chicago Title of Colorado, order
#1053295.
(b) In the event of closing, Seller shall credit Buyer in the
amount of $3,000 for the cost of an ALTA survey of the Property.
7. Section 13 is hereby superseded and replaced in its entirety as
follows:
13.1 As to the portion of Parcel B, Lot 3, and Parcel A, Lots 1, 2
and 9, which border Xxxxxxxxx Boulevard, the parties hereto recognize that
certain work must be completed. To that end the parties hereto agree that Buyer
shall complete all street access curb cuts, traffic signal installations and
clearing, grubbing, site balancing earthwork and rough subgrading related to
xxxx 0, 0 xxx 0 xx Xxxxxx A, Lot 6 of Parcel C, and xxxx 0, 0, 0 xxx 00 xx
Xxxxxx B shown on the attached Exhibit B in accordance with local codes,
ordinances, industry standards, Buyer's construction plans and City of
Lakewood's requirements, within ninety (90) days of closing or receipt of all
required permits for such work, whichever later occurs, subject to delays due to
any usual and unusual acts of force majeure. Buyer shall deliver to Seller lots
1 and 2 of Parcel A and Lot 6 of Parcel C in rough graded condition.
Seller shall pay its prorata share of the cost of the clearing, grubbing, site
balancing earthwork, rough grading related to xxxx 0, 0 xxx 0 xx Xxxxxx A, Xxx 0
xx Xxxxxx X, xxx xxxx 0, 0, 0 and 10 of Parcel B, new street access curb cut off
of Xxxxxxxxx, traffic signal installations and any other offsite costs along the
Xxxxxxxxx Boulevard frontage. Seller shall pay 100% of the costs of any other
site improvements related to Parcel A, lots 1 and 2, and Parcel C, lot 6, and
requested by Seller to be accomplished by Buyer in conjunction with all the
other work discussed in this Section 13. Such costs shall include
architectural, civil, geotechnical and any other pertinent engineering expenses.
Said prorata share shall be based on the ratio of the land area of Parcels A and
C compared to the total land area of Parcels A, B and C. However, the
relocation of the new access to Buyer's parking lot from Xxxxxxxxx Boulevard,
because of the relocation of the parking on Parcel D, shall be paid 100% by
Buyer.
13.2 Parcel A, lot 9, and Parcel B, xxx 00, xxxxxxxx xxx xxx xxxxxx
Right of Way ("R.O.W.") required by the City of Lakewood as shown on Exhibit B.
Seller agrees to dedicate Parcel A, lot 9, (if required) to the City of Lakewood
and Buyer agrees to dedicate Parcel B, lot 10, (if required) to the City of
Lakewood. If the new street R.O.W. remains a private street it shall be
included in the Reciprocal Easement and Operating Agreement described in Section
14. Buyer shall be responsible for 100% of the costs of the improvements, as
required by the City of Lakewood, within the R.O.W. of the new street on parcel
A, xxx 0, xxx Xxxxxx X, xxx 00, including all points of access within the R.O.W.
line (lot line), except for any obligations of Seller pursuant to Sub-section
13.1. Any reimbursements of costs received from the City of Lakewood or any
other governmental agency shall be 100% for the benefit of Buyer. If Buyer
receives any reimbursements of costs that Seller has paid a prorata share of,
then Seller shall be entitled to the same prorata share of the amount reimbursed
to Buyer that relates to the shared costs only.
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13.3 After completion of the work described in Sub-sections 13.1 and
13.2 Seller shall pay 100% of any costs of any work requested by Seller other
than the work described in Sub-sections 13.1 and 13.2 above and performed by
Buyer serving Parcels A and C exclusively which shall include but is not limited
to the import or export of materials, finish grading, retaining walls,
utilities, storm sewers, retention and drainage systems and any other
improvements on Parcels A and C. Seller shall reimburse Buyer in accordance
with the terms and conditions described in Sub-section 13.5 below. Seller shall
not be obligated to share in the costs of any retaining walls on Parcel A, Lots
8 and 9, that support Parcel B, Lot 10, and on Parcel B, Lots 3 and 5, that
support Parcel C, Lot 6.
13.4 Buyer shall be responsible for all the related costs of
relocating a portion of the existing parking lot located on the north side of
the Terrace Point Building (shown by light dashed line on Buyer's Site Plan) to
the east side of the Terrace Point Building also as shown on Exhibit C, Buyer's
new Site Development Plan (the "New Site Plan") to be approved by the City of
Lakewood. The work shall be done in accordance with local codes, ordinances,
industry standards, Buyer's construction plans and City of Lakewood's
requirements. The work shall include the removal of existing right-in,
right-out entrance driveway on Xxxxxxxxx Boulevard and the new access
connections from the remaining parking north of the Terrace Point Building to
the drive aisles in Buyer's parking lot to the north, and the new parking
adjoining the east side of the Terrace Point Building to west Xxxxxxx Place to
the south, plus all related landscaping repairs and City of Lakewood required
landscaping modifications. In the event a portion of Parcel B, Lot 4, is
utilized for new parking, then, upon completion, such portion will be deeded
back to Seller from Buyer, at no additional charge to Seller.
13.5 Seller agrees to pay its 100% or prorata share of any
applicable costs described in this Sub-sections 13.1 through 13.4 and authorizes
reimbursement to Buyer no later than fifteen (15) days after the work is
completed and approved by the City and Buyer invoices Seller for its share of
the cost. Prior to closing, Buyer shall estimate the total cost of such work,
and Seller's applicable share thereof. Seller's estimated share plus 15%,
subject to Seller's prior reasonable approval, shall be retained and held by the
Closing Agent from the purchase price following closing to provide a reserve
fund for Seller's share of said costs. The Closing Agent shall place the
retainage in an interest bearing account with interest to accrue to Seller's
benefit. When Seller's share of the costs is finally determined and Seller is
billed by Buyer for its actual applicable share, Seller shall direct the Closing
Agent to pay the retained amount directly to Buyer in partial payment of
Seller's applicable share of the costs if the retainage is less than Seller's
applicable share. Seller shall pay any balance owing of Seller's applicable
share directly to Buyer within 15 days. If the retainage exceeds Seller's
applicable share, the remainder shall be turned over to Seller by the Closing
Agent. Prior to the release of any funds Seller shall be provided with
certification from the City, according to the City's normal and routine
practices, that the work was completed as specified in the approved plans and/or
as required by the City of Lakewood.
13.6 All of the above sub-sections of this Section 13 shall survive
the closing.
8. A new Exhibit A, the legal description of the Property, is attached
hereto and incorporated herein by reference.
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9. A new Exhibit B, which is the proposed parcel map (the "Parcel Map"),
lot identification plan and new street Right of Way ("R.O.W.") plan, area
calculations and survey meets and bounds dimensions of the entire approximately
28 acre site, Eagle Drawing Number X327-09 dated September 16, 1997, is attached
hereto and incorporated herein by reference. The old site plan that was
attached to the Agreement as Exhibit B is no longer applicable and is hereby
rescinded. A new Exhibit C which is Buyer's New Site Plan, Eagle Drawing Number
X327-10 dated September 16, 1997, is attached hereto and incorporated by
reference.
10. Parcel A is comprised of lots 1, 2, 8 and 9. Parcel B is comprised of
lots 3, 4, 5, 7 and 10. Parcel C is comprised of Lot 6.
11. Except as modified herein, all of the remaining terms and conditions
of the Agreement remain the same and in full force and effect.
12. The later of the Buyer's signature date and the Seller's signature
date set forth below, shall be the Effective Date of this Second Amendment.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Typed name: Xxxx X. Xxxxxx
October 31, 1997 Its: Vice President
Buyer's signature date
Address: 000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: TERRACE POINT PARTNERSHIP
By: /s/ Xxxxxx Xxxxx
----------------------------------
Typed name: Xxxxxx Xxxxx
November 3, 1997 Its: General Partner
Seller's signature date
Address: 00000 X. Xxxxxx Xxxxxx
Xxxxx X-000
Xxxxxxxx, XX 00000
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EXHIBIT "A"
LEGAL DESCRIPTION
TO BE ATTACHED UPON
COMPLETION OF NEW SURVEY
EXHIBIT "A"
EXHIBIT "B"
[SITE PLAN]
EXHIBIT "C"
[SITE PLAN]
