Exhibit 10.373
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT is made this _________day of
August, 2004 by and between XXXXX OF XXXXXX, INC., a ______ ________ corporation
("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS
A. Purchaser and Seller entered into a Purchase Agreement dated June 17,
2004 pertaining to the purchase and sale of the Harvest Towne Center Shopping
Center located in Knoxville, Tennessee (the "Purchase Agreement").
B. Purchaser and Seller desire to amend the Purchase Agreement.
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the receipt and sufficiency of which are hereby acknowledge,
the parties hereto agree as follows:
1. RECITALS. The Recitals set forth herein above are incorporated as if
though fully set forth herein.
2. AMENDMENT. The date set forth in Paragraph 1 of the Purchase Agreement
is hereby changed from "August 11, 2004" to "August 20, 2004"
3. CONFLICTS. Except as herein set forth, the terms of the Purchase
Agreement shall remain unchanged. In the event of a conflict between the terms
hereof and [ILLEGIBLE] terms of the Purchase Agreement, the terms hereof shall
control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Purchase Agreement as of the date first written above.
SELLER:
XXXXX OF XXXXXX, INC., a FLORIDA
corporation
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: XXXX X. XXXXXXXX
---------------------------------
Its: Exec Director
---------------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
An Illinois corporation
By: /s/ [ILLEGIBLE]
---------------------------------
Name:
---------------------------------
Its: SR. V. P.
---------------------------------
June 17, 2004
Xxxxx of Weston, Inc. (Seller)
Attn: Xxxxx Xxxxxx
000 X. X. 00xx Xxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
(000) 000-0000
RE: HARVEST TOWNE CENTER
KNOXVILLE, TN.
Dear Xx. Xxxxxx:
This letter represents this corporation's offer to purchase the Harvest
Towne Center Shopping Center with 32,965 net rentable square feet, situated on
approximately 4 acres of land, located on Xxxxxxxx Xxxxxx xx Xxxxxx Xxxxxxx,
Xxxxxxxxx, XX.
The above properties 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 properties.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $9,100,000.00 all cash, plus or
minus prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid at
CLOSING, ON OR BEFORE AUGUST 11, 2004.
Purchaser shall allocate the land, building and depreciable
improvements prior to closing.
2. There are no real estate brokerage commissions involved in this
transaction.
3. 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 A on triple net leases covering the
building and all of the land, parking areas, reciprocal easements and
REA/OEA agreements (if any), 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.
4. 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 option or right of
first refusal to purchase or extend (EXCEPT SUCH EXTENSIONS PROVIDED
IN THE
PAGE 2
LEASES), nor is there any contemplated condemnation of any part of the
property, nor are there any current or contemplated assessments.
5. 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.
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 or, at Purchaser's option, Seller may credit
Purchaser in cash with an amount required to finish said work.
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. Purchaser shall have received a Phase 1 (and Phase II, if required)
Environmental Audit satisfactory to Purchaser in all respect and
indicating that there is no asbestos, PCBs, or hazardous substance in
the buildings and on the property. In the event Purchaser does not
elect to terminate this Agreement, Seller shall reimburse Purchaser at
Closing for the cost of such audits.
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 and Purchaser splitting 50/50 the cost of 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.
11. The closing shall occur through Chicago Title & Trust Company, in
Chicago, Illinois with Xxxxx Xxxxxx as Escrowee, on or before August
11, 2004, 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 form B owner's title policy with complete
extended coverage and required endorsements, waiving off all
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, 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
DATE
PAGE 3
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. Seller and Purchaser shall split 50/50 the cost of the
owner's policy (including all endorsements thereto) which shall be
prepared under the direction of Xxxxx Xxxxxxx of Orlando, Florida, as
agent for Fidelity National Title Insurance Company, and Seller and
Purchaser shall split 50/50 the cost of any transfer taxes and escrow
fees. At closing, no credit will be given to Sellers for any past due,
unpaid or delinquent rents.
12. This offer is subject to Purchaser receiving, prior to closing, an
appraisal of the property prepared by an MAI or other qualified
appraiser, acceptable to Purchaser or Purchaser's lender, if any. If
this Agreement is not terminated by Purchaser, Seller shall reimburse
Purchaser at Closing for the cost of such appraisal.
13. Neither Seller (Landlord) or any tenant and guarantor shall be in
default on any lease or agreement at closing, nor is there any
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, including CAM, tax and insurance current, as
shown on Exhibit A attached.
17. 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.
18. Seller agrees that prior to closing it shall put all vacant spaces
into rentable condition and ready for a new tenant to occupy
immediately in accordance with all applicable laws, codes, etc.,
including all requirements for a certificate of occupancy for said
space.
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 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, either (a) having Northside Properties renewing
their lease for at least one year, with rents at least equal to the
amount they are presently paying, all of which must be acceptable to
Purchaser, or (b) entering into, at Closing, a master lease with
respect thereto for a period of one year with rents (including CAM and
taxes) at least equal to the amount they are presently paying.
DATE
PAGE 4
This offer is, of course, predicated upon the Purchaser's review and
written approval of the existing eases, new leases, lease modifications (if
any), all tenant correspondence, REA/OEA agreements, tenants' and guarantors'
financial statements, sales figures, representations of income and expenses made
by Seller, site inspection, environmental, appraisal, etc., and all of Seller's
operating statements on said property is required that are certified by an
authorized officer, member or partner of Seller as true, complete and correct.
Seller agrees to fully cooperate with Purchaser's auditors in their preparation
of any audit required by purchaser, which audit may be completed post-closing.
If this offer is acceptable, please sign the original of this letter and
initial each page, keeping copies for your files and returning the original to
me by June 24, 2004.
Sincerely,
ACCEPTED: XXXXX OF XXXXXX, INC. INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By: [ILLEGIBLE]
--------------------------------- /s/ Xxxxxx X. Xxxxxxx
Date: 6-28-04
--------------------------------- Xxxxxx X. Xxxxxxx
Xx. Vice President
G. Xxxxxx Xxxxxxx
Vice Chairman
EXHIBIT A
HARVEST TOWNE CENTER
KNOXVILLE, TENNESSEE
[XXXXX PROPERTIES LOGO]
[ILLEGIBLE]
