EXHIBIT 10.3
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF REAL ESTATE AND RELATED PROPERTY
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THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE OF REAL
ESTATE AND RELATED PROPERTY (this Amendment) is dated as of the
11th day of December, 1996, by and between CARLYLE INCOME PLUS,
LTD., an Illinois limited partnership (Seller) and AMB RETAIL
INCOME FUND, INC., a Maryland corporation (Purchaser)
WITNESSETH:
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WHEREAS, Seller and Purchaser entered into that certain
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of November 19, 1996 (the Agreement), which
Agreement was amended by that certain First Amendment to
Agreement for Purchase and Sale of Real Estate and Related
Property dated as of December 6, 1996 (the First Amendment)
(the Agreement as amended by the First Amendment is hereinafter
referred to as the Agreement), pursuant to which Agreement
Seller agreed to sell, and Purchaser agreed to purchase, certain
real property located in the City of Chicago, County of ▇▇▇▇,
State of Illinois, commonly known as the Riverview Plaza
Shopping Center, as legally described on Exhibit A to the
Agreement (the Premises); and
WHEREAS, Tandy Corporation, a Delaware corporation, d/b/a
Radio Shack (Radio Shack), entered into a lease dated February
9, 1981 with Seller's predecessor-in-interest (the lease, as may
have been amended, is hereinafter referred to as the Lease),
for certain space at the Premises designated as Store B-7 in
the Lease and containing approximately 2560 square feet (the
Leased Premises); and
WHEREAS, the Term of the Lease expired June 30, 1996; and
WHEREAS, Seller has negotiated with and delivered to Radio
Shack a renewal lease for execution on behalf of Radio Shack
(the Renewal Lease), which Renewal Lease contains terms and
provisions that have been approved by Radio Shack, but, as of
the date hereof, Radio Shack has not delivered to Seller an
executed Renewal Lease; and
WHEREAS, Seller apprised Purchaser during the Due Diligence
Period of the status of the Lease and the Renewal Lease, and
Purchaser reviewed and approved the terms and provisions of the
Renewal Lease; and
WHEREAS, in light of the Closing of the transaction
contemplated under the Agreement and that Radio Shack has not as
of the date hereof delivered to Seller an executed Renewal
Lease, Purchaser has requested that Seller indemnify Purchaser
with respect to certain costs and expenses which may arise in
the event Radio Shack does not execute and deliver the Renewal
Lease; and
WHEREAS, Seller has agreed to provide such indemnification
to Purchaser, in accordance with and subject to the terms and
provisions set forth hereinbelow.
NOW, THEREFORE, in consideration of these premises, of the
mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the parties hereto, Seller and Purchaser
hereby agree as follows:
1. All capitalized terms used herein and not defined
shall have the same meaning as set forth in the Agreement.
2. Seller and Purchaser hereby agree that in the event
Radio Shack ceases to occupy and vacates the Leased Premises
during the period from January 1, 1997 through June 30, 1997
(the Indemnification Period), Seller shall reimburse Purchaser
for certain costs and expenses as set forth below which
Purchaser may incur as a result thereof; provided, however, that
in no event shall the total of all such costs and expenses
exceed the sum of $75,000.00 (the Maximum Reimbursement
Amount):
(a) Minimum Rent (as defined in the Lease), equal to
$4,320.00 per month ($20.25/square foot), for a total of
$25,920.00 for the Indemnification Period (the Maximum
Minimum Rent Reimbursement Amount). The Maximum Minimum
Rent Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997 through
March, 1997, and thereafter Radio Shack vacates the Leased
Premises, then Seller's total liability for reimbursement
to Purchaser of Minimum Rent will be $12,960.00
($4,320.00/month x 3 months [April, 1997 - June, 1997] =
$12,960.00).
(b) Additional rent (including Tenant's Tax
Share and Tenant's Shopping Center Common Area Pro
Rata Share of the Shopping Center Common Area
Maintenance Costs, as such terms are defined in the
Lease), equal to $2,133.33 per month ($10.00/square
foot), for a total of $12,800.00 for the
Indemnification Period (the Maximum Additional Rent
Reimbursement Amount). The Maximum Additional Rent
Reimbursement Amount shall be reduced for each month
Radio Shack occupies the Leased Premises during the
Indemnification Period. For example, if Radio Shack
occupies the Leased Premises from January, 1997
through March, 1997, and thereafter Radio Shack
vacates the Leased Premises, Seller's total liability
for reimbursement to Purchaser of additional rent will
be $6,400.00 ($2,133.33/month x 3 months [April, 1997
- June, 1997] = $6,400.00).
(c) The amounts which may be due by Seller to
Purchaser pursuant to subsections 2(a) and (b)
hereinabove shall be prorated for any portion of any
month during which Radio Shack occupies the Leased
Premises. In the event Radio Shack vacates the Leased
Premises prior to the expiration of the Indemnification
Period and Purchaser is entitled to reimbursement from
Seller of Minimum Rent and additional rent in accordance
with the terms and provisions of subsections 2(a) and (b)
hereinabove, Purchaser shall submit a statement to Seller
setting forth the amount Purchaser calculates it is
entitled to receive from Seller. Provided Seller agrees
with Purchaser's calculations, Seller shall reimburse
Purchaser within ninety (90) days after receipt of
Purchaser's statement. If Seller does not agree with
Purchaser's calculations, Seller shall so notify Purchaser
in writing of its disagreement, and the parties shall
thereafter use reasonable efforts to agree upon an amount
due to Purchaser. Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any statement received by Seller after July 31, 1997. In
no event shall the amount to be reimbursed by Seller to
Purchaser (i) under subsection 2(a) exceed the Maximum
Minimum Rent Reimbursement Amount, and (ii) under
subsection 2(b) exceed the Maximum Additional Rent
Reimbursement Amount.
(d) The cost of building out the Leased Premises for a new
tenant, the cost of such tenant improvement work not to
exceed the sum of $25,600.00 ($10.00/square foot x 2560
square feet = $25,600.00) (the Maximum TI Reimbursement
Amount). In the event Purchaser is required to perform
tenant improvement work at the Leased Premises for a new
tenant, Purchaser must submit copies of bills and
statements evidencing the actual costs incurred by
Purchaser in connection with such tenant improvement work
at the Leased Premises. All such bills and statements must
be received by Seller on or before December 31, 1997, and
Seller shall not be obligated or required under any
circumstances to reimburse Purchaser for any bills or
statements received by Seller after December 31, 1997.
Seller shall reimburse Purchaser within ninety (90) days
after receipt of Purchaser's bills and statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum TI Reimbursement Amount.
(e) The cost of any brokerage fees or
commissions incurred in connection with the leasing of
the Leased Premises to a new tenant, the cost of such
brokerage fees or commissions not to exceed the sum of
$10,240.00 ($4.00/square foot x 2560 square feet =
$10,240.00) (the Maximum Brokerage Commission
Reimbursement Amount). Purchaser must submit copies
of bills or statements evidencing the brokerage fees
or commissions due in connection with the leasing of
the Leased Premises to a new tenant, which bills or
statements must be received by Seller on or before
December 31, 1997, and Seller shall not be obligated or
required under any circumstances to reimburse Purchaser for
any bills or statements received by Seller after December
31, 1997. Seller shall reimburse Purchaser within ninety
(90) days after receipt of Purchaser's bills or statements;
provided, however, that in no event shall the amount to be
reimbursed by Seller to Purchaser hereunder exceed in total
the Maximum Brokerage Commission Reimbursement Amount.
3. Notwithstanding anything in this Amendment to the
contrary, if Radio Shack (a) has not vacated the Leased Premises
prior to the expiration of the Indemnification Period, or
(b) has executed and delivered the Renewal Lease, or executes
and delivers a lease that is substantially similar to the
Renewal Lease with modifications that are commercially
reasonably acceptable to Purchaser prior to the expiration of
the Indemnification Period, then in either event the
indemnification and reimbursement obligations of Seller set
forth in this Amendment shall immediately cease and terminate,
this Amendment and the terms and provisions set forth herein
shall be null and void, and the parties hereto shall have no
further rights or obligations hereunder.
4. In the event Radio Shack vacates the Leased Premises
prior to the expiration of the Indemnification Period, Purchaser
shall and hereby agrees to use its best efforts to relet the
Leased Premises or any part thereof to any person or entity, and
Purchaser shall not unreasonably refuse to accept any
commercially
reasonable new tenant. In addition, in the event
Purchaser relets the Leased Premises during the Indemnification
Period, and the new lease provides for a rental abatement period
which occurs during the Indemnification Period, the amount of
Minimum Rent or additional rent that Seller is required to
reimburse Purchaser for pursuant to subsections 2(a) and (b)
hereinabove during any such rental abatement period which occurs
during the Indemnification Period shall be reduced by the
adjusted rental per month due under such new lease. For
purposes of this Section 4, adjusted rental per month shall be
the quotient of the total rent (including base rent, additional
rent and any other abated amounts) due during the initial term
of such new lease divided by the total number of months in the
initial term of such new lease.
5. Seller and Purchaser hereby agree that the Maximum
Indemnification Amount has been agreed upon, after negotiation,
as the parties reasonable estimate of Purchaser's damages and
as Purchaser's sole and exclusive remedy against Seller, at law
or in equity, in connection with the Lease and with the matters
set forth in this Amendment.
6. Except as specifically set forth herein, all other
terms and conditions as set forth in the Agreement shall remain
in full force and effect, and are not otherwise amended,
altered, modified or revised.
7. This Amendment may be signed in any number of
counterparts, all of which when taken together shall constitute
one instrument.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Second Amendment to Agreement for Purchase and Sale of Real
Estate and Related Property to be executed as of the day and
year first above written.
SELLER: PURCHASER:
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CARLYLE INCOME PLUS, LTD. AMB RETAIL INCOME FUND, INC.,
an Illinois limited partnership a Maryland corporation
By: JMB REALTY CORPORATION,
a Delaware corporation, a general partner
By:_______________________________
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Its:_________________________________