Exhibit 10.68
The Promenade at Red Cliff
St. ▇▇▇▇▇▇
Amendment to Agreement
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into as
of the 13th of February 2004, by and between THE PROMENADE AT RED CLIFF, a
California limited partnership ("Seller") and INLAND WESTERN ST. ▇▇▇▇▇▇, L.L.C.,
a Delaware limited liability company and INLAND REAL ESTATE ACQUISITIONS, INC.
("IREA") ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into that certain Letter Agreement dated
December 17, 2003 as amended (the "Agreement"), for the sale and purchase of the
property commonly known as Promenade at Red Cliff Shopping Center located in St.
▇▇▇▇▇▇, Utah, (the "Property").
Whereas, Buyer 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 Purchase Price for the Property is hereby revised from
"$19,618,000" to "$19,532,640."
2. Seller hereby agrees to indemnify, defend and hold Buyer harmless from
and against any and all loss, cost, or claim of expenses incurred by
Buyer resulting from a claim by Hollywood Entertainment Corporation
under the provisions to its lease dated June 25, 1998 ("Hollywood")
for off-set of rent and/or recoverable expenses, as referenced in its
estoppel dated February 3, 2003, for reimbursement of overpayment of
common area maintenance, insurance and/or real estate tax
contributions for the period beginning with calendar year 1998 through
calendar year 2003. Seller has not yet provided Hollywood with the
common area maintenance, insurance and real estate tax property
records for 2003 and Seller hereby covenants and agrees to deliver
such property records to Hollywood no later than March 31, 2004.
3. The terms of this Amendment shall survive the Closing of the
transaction between Seller and Buyer.
4. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall
The Promenade at Red Cliff
St. ▇▇▇▇▇▇
Amendment to Agreement
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.
Seller:
PROMENADE AT RED CLIFF,
A California limited partnership
By: /s/ Red Cliff Inc.,
---------------------------------
Name: [ILLEGIBLE]
-------------------------------
Title: [ILLEGIBLE]
------------------------------
Purchaser:
INLAND WESTERN ST. ▇▇▇▇▇▇, L.L.C.,
a Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
As Its: AUTHORIZE AGENT
-----------------------------
2
[INLAND (R) LOGO]
INLAND REAL ESTATE ACQUISITIONS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: 4935
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
REVISED:
DECEMBER 17, 2003
Day Star Development (Seller)
c/o: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: THE PROMENADE AT RED CLIFF
ST. ▇▇▇▇▇▇, UT
Dear ▇▇. ▇▇▇▇▇▇▇:
This letter represents this corporation's offer to purchase the Promenade
at Red Cliff Shopping Center with 94,936 net rentable square feet, situated on
approximately ________ acres of land, located ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇,
▇▇▇▇.
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 $19,636,000.00 all cash, plus or
minus prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid at
CLOSING. PURCHASER SHALL HAVE UNTIL FEBRUARY 4, 2004 TO COMPLETE IT'S
DUE DILIGENCE AND CLOSING SHALL BE ON FEBRUARY 11, 2004.
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.
PAGE 2
THE PROMENADE AT RED CLIFF - ST. ▇▇▇▇▇▇, UT
REVISED: DECEMBER 21, 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.
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 ▇▇▇▇▇ ▇▇▇▇▇▇ as Escrowee, ON FEBRUARY 4, 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, 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 ▇▇▇▇ 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.
11. This offer is subject to Purchaser, prior to closing, RECEIVING an
appraisal of the property prepared by an MAI or other qualified
appraiser, acceptable to Purchaser or Purchaser's lender, if any, all
at PURCHASER'S cost NOT TO EXCEED $4,000.00.
12. Neither Seller (Landlord) or any CURRENT 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.
PAGE 3
THE PROMENADE AT RED CLIFF - ST. ▇▇▇▇▇▇, UT
REVISED: DECEMBER 21, 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. Other than the existing 3,019 square
feet.
16. Seller shall be responsible for payment of a real estate brokerage
commission, as per their agreement, to NAI Utah & ▇▇▇▇▇▇ ▇▇▇▇▇ Said
commission shall be paid through the closing escrow.
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. SAID AUDIT
SHALL BE AT PURCHASER'S EXPENSES.
20.
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 sign the original of this letter and
initial each page, keeping copies for your files and returning the original to
me by DECEMBER 29, 2003.
Sincerely,
ACCEPTED: INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By:
----------------------------
Date: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------- ---------------------------------
▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
/s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice Chairman
PROMENADE AT RED CLIFF
"EXHIBIT A"
PROMENADE AT RED CLIFF
Jan. 04 rent roll
CURRENT LEASE TERM
ANNUAL RENT P/ -----------------------------------
TENANTS S.F. BASE RENT S.F. P/YR COMMENCEMENT DATE EXPIRATION DATE
------------------------------------------------------------------------------------------------------------
OLD NAVY 19,317 $ 266,568.00 $ 13.80 December'03 November '08
STAPLES 22,959 $ 258,750.00 $ 11.27 June '07 May '12
COLDSTONE CREAMERY 1,173 $ 32,844.00 $ 28.00 September '03 August '08
QUIZNOS 1,424 $ 30,216.00 $ 21.22 February '99 January 31 '09
COUNTRY CLUTTER 1,464 $ 36,600.00 $ 25.00 August '03 July '08
9 MONTHS & BEYOND 508 $ 15,550.00 $ 30.61 July '03 June '08
DURANGO GRILL 2,693 $ 75,404.00 $ 28.00 March '03 February '08
▇▇▇▇▇▇▇▇ SMOKEHOUSE 1,365 $ 39,585.00 $ 29.00 November '03 October '08
SAMURAI 21 4,057 $ 99,315.00 $ 24.50 ▇▇▇ ▇, ▇▇▇▇ ▇▇▇. 2, 2008
SUPERCUTS 1,030 $ 24,720.00 $ 24.00 March '03 February '08
VITAMIN WORLD 1,291 $ 26,880.00 $ 20.82 July '02 June '07
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1,206 $ 30,150.00 $ 25.00 January '03 December '04
PANDA EXPRESS (Base Rent) 1,513 $ 36,312.00 $ 24.00 December '99 December '05
PANDA EXPRESS (Percentage Rent) $ 22,800.00
▇▇▇▇▇ BEAUTY SUPPLY 1,204 $ 22,876.00 $ 19.00 July '02 June '07
COSMO NAILS 1,047 $ 25,128.00 $ 24.00 July '02 July '07
GEN X CLOTHING 7,816 $ 129,001.00 $ 16.50 July '02 June '07
PENDING 3,019 $ 72,456.00 $ 24.00
PAPA JOHN'S 1,347 $ 35,022.00 $ 26.00 January '03 December '07
2 FAT GUYS PIZZA 4,236 $ 91,074.00 $ 21.50 March '04 March '09
HOLLYWOOD ENTERTAINMENT 6,220 $ 122,328.00 $ 19.67 January '97 December '06
BIG 5 10,058 $ 125,352.00 $ 12.46 June '97 June '07
PROMENADE AT RED CLIFF
"EXHIBIT A"
TOTALS 94,947 $ 1,618,931.00