Exhibit 10.55
SIXTH AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS SIXTH AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "Sixth Amendment") is made and entered into as of the 16th day of January,
2004, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL ESTATE
ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY ("Escrow
Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center
(the "Property").
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. The Letter Agreement and the Escrow Instructions were amended pursuant
to that certain First Amendment to Letter Agreement and Escrow Trust
Instructions dated as of December 15, 2003 (the "First Amendment"), that certain
Second Amendment to Letter Agreement and Escrow Trust Instructions dated as of
December 22, 2003 (the "Second Amendment"), that certain Third Amendment to
Letter Agreement and Escrow Trust Instructions dated as of December 29, 2003
(the "Third Amendment"), that certain Fourth Amendment to Letter Agreement and
Escrow Trust Instructions dated as of January 6, 2004 (the "Fourth Amendment"),
and that certain Fifth Amendment to Letter Agreement and Escrow Trust
Instructions dated as of January 9, 2004 (the "Fifth Amendment"). The Letter
Agreement, Escrow Instructions, First Amendment, Second Amendment, Third
Amendment, Fourth Amendment and the Fifth Amendment shall sometimes be
hereinafter referred to collectively as the "Agreement".
D. Seller, Purchaser and Escrow Agent desire to further amend the
Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Agreement and hereby agree as
follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Sixth Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Sixth Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. CLOSING. The Section of the Escrow Instructions entitled "Delivery of
Deposits", as amended by the First Amendment, the Second Amendment, the Third
Amendment and [ILLEGIBLE] Fourth Amendment, is hereby further amended by
deleting "January 16, 2004" in the ninth line thereof and inserting "January 20,
2004" in lieu thereof. Notwithstanding anything contained in the Agreement to
the contrary, Seller and Purchaser acknowledge and agree that the closing under
the Letter Agreement and the Escrow Instructions shall occur on January 20,
2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Sixth Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. This Sixth Amendment shall be deemed to be a part
of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
--------------------------
Its: SRVP
---------------------------
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
FIFTH AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS FIFTH AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "Fifth Amendment") is made and entered into as of the 9th day of January,
2004, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL ESTATE
ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY ("Escrow
Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center
(the "Property").
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. The Letter Agreement and the Escrow Instructions were amended pursuant
to that certain First Amendment to Letter Agreement and Escrow Trust
Instructions dated as of December 15, 2003 (the "First Amendment"), that certain
Second Amendment to Letter Agreement and Escrow Trust Instructions dated as of
December 22, 2003 (the "Second Amendment"), that certain Third Amendment to
Letter Agreement and Escrow Trust Instructions dated as of December 29, 2003
(the "Third Amendment"), and that certain Fourth Amendment to Letter Agreement
and Escrow Trust Instructions dated as of January 6, 2004 (the "Fourth
Amendment"). The Letter Agreement, Escrow Instructions, First Amendment, Second
Amendment, Third Amendment and Fourth Amendment shall sometimes be hereinafter
referred to collectively as the "Agreement".
D. Seller, Purchaser and Escrow Agent desire to further amend the
Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Agreement and hereby agree as
follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Fifth Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Fifth Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. ADDITIONAL CONDITIONS TO CLOSING. In addition to (and not in lieu of)
any and all conditions to closing contained in the Agreement, Purchaser's
obligation to perform under the Agreement and this Fifth Amendment is subject to
and contingent upon the following being satisfied to Purchaser's satisfaction on
or before the closing date set forth in Section 2 of the Fourth Amendment
(collectively, the "Additional Closing Conditions"):
(a) Resolution and completion, to Purchaser's satisfaction, of all
title and survey matters, issues, objections and questions raised in
Purchaser's e-mail messages to Seller (copies of which are attached hereto
as Exhibit A).
(b) Delivery to Purchaser of the letters attached hereto as Exhibit B
and made a part hereof executed by G-H Quarterfield Road, LLC
("Quarterfield").
(c) Finalization, execution and recordation of an amendment, in form
and substance acceptable to Purchaser, to the Declaration of Covenants,
Conditions, Restrictions and Easements encumbering the Property and that
certain outparcel adjacent to the Property.
(d) Purchaser's and Seller's finalization, execution and delivery of
all conveyance documents reasonably requested by Purchaser or Seller to be
provided at the closing. The conveyance documents shall include, without
limitation, an endorsement by Quarterfield of the original $24,972.73
Promissory Note dated July 23, 2002 (the "Note"), made by Xxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx (collectively, the "Mapsons") to the order of
Quarterfield, and an assignment of any and all of Quarterfield's right,
title and interest in, to and under that certain Settlement Agreement
between Quarterfield and the Mapsons dated July 22, 2002. Seller agrees to
deliver to Purchaser the original Note at closing.
(e) Resolution, to Purchaser's satisfaction, of the insurance credit
claimed by Food-A-Rama, G.U., Inc. in its estoppel letter provided in
connection with the transaction contemplated by the Agreement.
If any one or more of the Additional Closing Conditions set forth in this
Section 2 shall not be satisfied by January 16, 2004, then Purchaser shall have
the right, at its option and by notice to Seller (and provided that Purchaser
has not waived such failure), to elect at any time thereafter to either
terminate the Agreement and this Fifth Amendment, in which event the $250,000
Xxxxxxx Money Deposit and any interest thereon shall forthwith be returned to
Purchaser, and all other funds and documents theretofore delivered hereunder or
deposited in escrow by either party shall be forthwith returned to such party.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Fifth Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. This Fifth Amendment shall be deemed to be a part
of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto
set their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
------------------------------
Its: SRVP
-------------------------------
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
EXHIBIT A
[SEE ATTACHED]
FOURTH AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS FOURTH AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "Fourth Amendment") is made and entered into as of the 6th day of January,
2004, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL ESTATE
ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY ("Escrow
Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center.
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. The Letter Agreement and the Escrow Instructions were amended pursuant
to that certain First Amendment to Letter Agreement and Escrow Trust
Instructions dated as of December 15, 2003 (the "First Amendment"), that certain
Second Amendment to Letter Agreement and Escrow Trust Instructions dated as of
December 22, 2003 (the "Second Amendment"), and that certain Third Amendment to
Letter Agreement and Escrow Trust Instructions dated as of December 29, 2003
(the "Third Amendment").
D. Seller, Purchaser and Escrow Agent desire to further amend the Letter
Agreement, the Escrow Instructions, the First Amendment, the Second Amendment
and the Third Amendment as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Letter Agreement, the Escrow Trust
Instructions, the First Amendment, the Second Amendment and the Third Amendment
and hereby agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Fourth Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Fourth Amendment, but defined in the Letter Agreement, the Escrow Instructions,
the First Amendment, the Second Amendment or the Third Amendment, shall have the
meanings given to them in the Letter Agreement, the Escrow Instructions, the
First Amendment, the Second Amendment or the Third Amendment, as the case may
be.
2. DUE DILIGENCE; CLOSING. The Section of the Escrow Instructions
entitled "Delivery of Deposits", as amended by the First Amendment, the Second
Amendment and the Third Amendment, is hereby further amended by (a) deleting
"January 6, 2004" in the third line thereof and inserting "January 9, 2004" in
lieu thereof, and (b) deleting "January 13, 2004" in the ninth line thereof and
inserting "January 16, 2004" in lieu thereof. Notwithstanding anything contained
in the Letter Agreement, the Escrow Instructions, the First Amendment, the
Second Amendment or the Third Amendment to the contrary, Seller and Purchaser
acknowledge and
agree that Purchaser's so-called due diligence period shall expire on January 9,
2004, and closing under the Letter Agreement and the Escrow Instructions shall
occur on January 16, 2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Fourth Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Letter Agreement, the Escrow Instructions, the First Amendment, the Second
Amendment and the Third Amendment are hereby ratified and confirmed and shall
remain in full force and effect as originally written. This Fourth Amendment
shall be deemed to be a part of the Letter Agreement and the Escrow
Instructions.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Its: Vice President
-------------------------------
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
2
THIRD AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS THIRD AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "Third Amendment") is made and entered into as of the 29th day of
December, 2003, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL
ESTATE ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY
("Escrow Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center.
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. The Letter Agreement and the Escrow Instructions were amended pursuant
to that certain First Amendment to Letter Agreement and Escrow Trust
Instructions dated as of December 15, 2003 (the "First Amendment"), and that
certain Second Amendment to Letter Agreement and Escrow Trust Instructions dated
as of December 22, 2003 (the "Second Amendment").
D. Seller, Purchaser and Escrow Agent desire to further amend the Letter
Agreement, the Escrow Instructions, the First Amendment and the Second Amendment
as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Letter Agreement, the Escrow Trust
Instructions, the First Amendment and the Second Amendment and hereby agree as
follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Third Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Third Amendment, but defined in the Letter Agreement, the Escrow Instructions,
the First Amendment or the Second Amendment, shall have the meanings given to
them in the Letter Agreement, the Escrow Instructions, the First Amendment or
the Second Amendment, as the case may be.
2. DUE DILIGENCE; CLOSING. The Section of the Escrow Instructions
entitled "Delivery of Deposits", as amended by the First Amendment and the
Second Amendment, is hereby further amended by (a) deleting "December 29, 2003"
in the third line thereof and inserting "January 6, 2004" in lieu thereof, and
(b) deleting "January 5, 2004" in the ninth line thereof and inserting "January
13, 2004" in lieu thereof. Notwithstanding anything contained in the Letter
Agreement, the Escrow Instructions, the First Amendment or the Second Amendment
to the contrary, Seller and Purchaser acknowledge and agree that Purchaser's
so-called due diligence period shall expire on January 6, 2004, and closing
under the Letter Agreement and the Escrow Instructions shall occur on
January 13, 2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Third Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Letter Agreement, the Escrow Instructions, the First Amendment and the Second
Amendment are hereby ratified and confirmed and shall remain in full force and
effect as originally written. This Third Amendment shall be deemed to be a part
of the Letter Agreement and the Escrow Instructions.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
SECOND AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS SECOND AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "Second Amendment") is made and entered into as of the 22nd day of
December, 2003, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL
ESTATE ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY
("Escrow Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center.
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. The Letter Agreement and the Escrow Instructions were amended pursuant
to that certain First Amendment to Letter Agreement and Escrow Trust
Instructions dated as of December 15, 2003 (the "First Amendment").
D. Seller, Purchaser and Escrow Agent desire to further amend the Letter
Agreement, the Escrow Instructions and the First Amendment as more particularly
set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Letter Agreement, the Escrow Trust
Instructions and the First Amendment and hereby agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Second Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Second Amendment, but defined in the Letter Agreement, the Escrow Instructions
or the First Amendment, shall have the meanings given to them in the Letter
Agreement, the Escrow Instructions or the First Amendment, as the case may be.
2. DUE DILIGENCE; CLOSING. The Section of the Escrow Instructions
entitled "Delivery of Deposits", as amended by the First Amendment, is hereby
further amended by (a) deleting "December 22, 2003" in the third line thereof
and inserting "December 29, 2003" in lieu thereof, and (b) deleting "December
29, 2003" in the ninth line thereof and inserting "January 5, 2004" in lieu
thereof. Notwithstanding anything contained in the Letter Agreement, the Escrow
Instructions or the First Amendment to the contrary, Seller and Purchaser
acknowledge and agree that Purchaser's so-called due diligence period shall
expire on December 29, 2003, and closing under the Letter Agreement and the
Escrow Instructions shall occur on January 5, 2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Second Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such
counterpart shall constitute but one and the same agreement and (b) by facsimile
which shall be considered and constitute an original, executed and delivered
agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Letter Agreement, the Escrow Instructions and the First Amendment are hereby
ratified and confirmed and shall remain in full force and effect as originally
written. This Second Amendment shall be deemed to be a part of the Letter
Agreement and the Escrow Instructions.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
Senior Vice President
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
FIRST AMENDMENT TO
LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
THIS FIRST AMENDMENT TO LETTER AGREEMENT AND ESCROW TRUST INSTRUCTIONS
(this "First Amendment") is made and entered into as of the 15th day of
December, 2003, by and among UNITED REALTY COMPANIES LLC ("Seller"), INLAND REAL
ESTATE ACQUISITIONS, INC. ("Purchaser"), and CHICAGO TITLE AND TRUST COMPANY
("Escrow Agent").
RECITALS:
A. Seller and Purchaser previously entered into that certain Letter
Agreement dated as of November 13, 2003 (the "Letter Agreement"), with respect
to certain real property and all improvements thereon located at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx, and commonly known as Metro Square Center.
B. Seller, Purchaser and Escrow Agent previously entered into those
certain Modified Joint Order Escrow Trust Instructions (Escrow Trust No.
23188484) dated as of November 25, 2003 (the "Escrow Instructions"), with
respect to the deposit and disbursement of the Xxxxxxx Money Deposit (as defined
in the Escrow Instructions) under the Letter Agreement.
C. Seller, Purchaser and Escrow Agent desire to amend the Letter
Agreement and the Escrow Instructions as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller,
Purchaser and Escrow Agent hereby amend the Letter Agreement and the Escrow
Trust Instructions and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this First Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
First Amendment, but defined in the Letter Agreement, or the Escrow
Instructions, shall have the meanings given to them in the Letter Agreement or
the Escrow Instructions, as the case may be.
2. DUE DILIGENCE; CLOSING. The Section of the Escrow Instructions
entitled "Delivery of Deposits" is hereby amended by (a) deleting "December 15,
2003" in the third line thereof and inserting "December 22, 2003" in lieu
thereof, and(b) deleting "December 22, 2003" in the ninth line thereof and
inserting "December 29, 2003" in lieu thereof. Notwithstanding anything
contained in the Letter Agreement to the contrary, Seller and Purchaser
acknowledge and agree that Purchaser's so-called due diligence period shall
expire on December 22, 2003, closing under the Letter Agreement and the Escrow
Instructions shall occur on December 29, 2003.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This First Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Letter Agreement and the Escrow Instructions are hereby ratified and confirmed
and shall remain in full
force and effect as originally written. This First Amendment shall be deemed to
be a part of the Letter Agreement and the Escrow Instructions.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxx Xxxxxxx
-------------------------------------
Xxx Xxxxxxx
Senior Vice President
SELLER:
UNITED REALTY COMPANIES LLC
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------------
Its: Managing Member
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
2
force and effect as originally written. This First Amendment shall be deemed to
be a part of the Letter Agreement and the Escrow Instructions.
IN WITNESS WHEREOF, Seller, Purchaser and Escrow Agent have hereunto set
their hands and seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:
-------------------------------------
Xxx Xxxxxxx
Senior Vice President
SELLER:
UNITED REALTY COMPANIES LLC
By:
-------------------------------------
Name:
------------------------------
Its:
-------------------------------
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By: /s/ [ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
------------------------------
Its: Escrow Assistant
-------------------------------
2
[INLAND(R) LOGO]
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000 Fax: 4935
xxx.xxxxxxxxxxx.xxx
November 11, 2003
Seller or Beneficiary of the Titleholding Trust
or Holder of the Power of Direction
c/o X. X. Xxxxxxx, Inc. (Broker)
Attn: Xxxx Xxxxxxxxxx
000 Xxxxxxxxxx Xxx.
Xxxxxxxxxxxxx, XX 00000
Re: SUPERVALU S/C
SEVERN, MD
Dear Xx. Xxxxxxxxxx:
This letter represents this corporation's offer to purchase the Supervalu
Shopping Center with 61,817 net rentable square feet, situated on approximately
________ acres of land, located at 7858 Quarterfield, Severn, MD.
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.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $10,972,049.00 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 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.
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 option 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.
November 11, 2003
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.
5. 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.
6. 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.
7. 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.
8. Seller shall supply to Purchaser 10 days prior to closing, and
Seller shall pay for at closing, a certificate which must be
acceptable to Purchaser from a certified hygienist for environmental
concerns that there is no asbestos, PCBs, or hazardous substance in
the buildings and on the property; in other words, a Level 1
environmental audit (and Level 2 audit, if required).
9. 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.
10. 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 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, 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
2002 and 2003 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. 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.
13. Seller warrants and represents that he has paid all unemployment
taxes to date.
14. 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.
November 11, 2003
15. 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.
16. Seller shall be responsible for payment of a real estate brokerage
commission, as per their agreement, to X. X. Xxxxxxx, Inc. Said
commission shall be paid through the closing.
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.
This offer is, of course, predicated upon the Purchaser's review and
written approval of the existing leases, 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 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 NOVEMBER 17, 2003.
Sincerely,
ACCEPTED: INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx, Managing Member /s/ Xxx Xxxxxxx
Date: November 13, 2003 ---------------------------------
Xxx Xxxxxxx
Senior Vice President
/s/ G. Xxxxxx Xxxxxxx
G. Xxxxxx Xxxxxxx
Vice Chairman
Subject to revisions contained in accompanying letter.
"EXHIBIT A"
LEASE LEASE
ANNUAL RENT COMMENCEMENT EXPIRATION SALES MONTHLY
TENANTS S.F. BASE RENT PER SQ. FOOT DATE DATE PSF RENT
--------------------------------------------------------------------------------------------------------------------
SHOPPERS SUPERVALUER FOOD
WAREHOUSE** 58,217 815,038.00 $ 14.00 September-99 September-19 0.00
AZZ CLEANERS 2,400 55,073.00 $ 22.95 November-00 December-07 0.00
GREAT CLIPS 1,200 27,537.00 $ 22.95 July-00 December-05 0.00
0.00 #DIV/0! 0.00
**GUARANTOR IS SUPERVALU 0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
0.00 #DIV/0! 0.00
TOTALS 61,817 897,648.00
--------------------------------------------------------
POPULATION 3 MILE 66,779
AVERAGE HH INCOME $66,243
