Exhibit 10.361
The Columns Shopping Center
Jackson, Tennessee
Amendment to Agreement
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into as
of the 2nd day of August 2004, by and between ▇▇▇▇▇▇▇ PROPERTY ASSOCIATES, G.P.
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC. ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into that certain Letter Agreement having
a date of June 22, 2004 (the "Agreement"), for the sale and purchase of the
property commonly known as The Columns Shopping Center located in Jackson,
Tennessee, as legally described within the Agreement (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 "Termination Date" as defined in Section 1 of the Agreement is
amended by deleting the words "...on or before the thirtieth (30th)
business day from the date of full execution hereof. . ." found in
line 8 thereof and inserting the date of "...August 9, 2004 at 5:00
p.m. Chicago time. . ." therein.
2. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall 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.
(SIGNATURES ON FOLLOWING PAGE)
The Columns Shopping Center
Jackson, Tennessee
Amendment to Agreement
Seller:
▇▇▇▇▇▇▇ Property Associates G.P.
By: Jackson Management Associates, LLC
By: /s/ [ILLEGIBLE]
-------------------------
Name: [ILLEGIBLE]
-----------------------
Title: [ILLEGIBLE]
----------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-------------------------
Name: [ILLEGIBLE]
-----------------------
Title: SR. V.P.
----------------------
2
Re: Purchaser: Inland Real Estate Acquisitions, Inc. or its designee
("Purchaser")
Seller: Jackson Property Associates, G.P. ("Seller")
Property: The Columns Shopping Center
Jackson, Tennessee
This letter represents Seller's offer to sell and Purchaser's agreement
to purchase (the "Agreement") Phase I, Phase II and Phase III of The Columns
Shopping Center with approximately 173,587 net rentable square feet, situated on
approximately 26.06 acres of land, located on ▇▇▇▇ Drive, Jackson, Tennessee
(the "Property").
The 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 transaction will be consummated on the following basis:
1. The total purchase price shall be $27,028,000.00 all cash, plus or minus
prorations, WITH NO MORTGAGE CONTINGENCIES, $20,769,721 of which is to be
paid at the First Closing (as hereinafter defined) (see Paragraphs 12 and
13), less prorations as set forth herein. On the date hereof, Purchaser
shall deposit with Chicago Title Insurance Company (attn: ▇▇▇▇▇ ▇▇▇▇▇▇,
Assistant Vice President) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(telephone: ▇▇▇-▇▇▇-▇▇▇▇; facsimile: 312-223-2108) ("Escrowee") the sum
of $300,000.00 (the "First Deposit"). In the event that Purchaser does
not terminate this Agreement on or before the thirtieth (30th) business
day from the date of full execution hereof (the "Termination Date"), the
Deposit shall be non-refundable subject to satisfaction of the
post-Termination Date conditions contained herein. Should the Purchaser
provide written notice to Seller and Escrowee prior to the Termination
Date of its intent to terminate this Agreement, the Deposit shall be
promptly returned to the Purchaser; otherwise, the Deposit shall become
immediately non-refundable (subject to satisfaction of the
post-Termination Date conditions contained herein). Within five (5) days
after the expiration of the Termination Date, Purchaser shall deposit an
additional sum of $300,000.00 (the "Second Deposit") with Escrowee, which
shall become immediately non-refundable (subject to satisfaction of the
post-Termination Date conditions contained herein). The First Deposit and
the Second Deposit shall remain in escrow with Escrowee at the First
Closing and shall be applied against the Purchase Price at the Second
Closing. Purchaser shall allocate the land, building and depreciable
improvements prior to either the First Closing or the Second Closing (as
hereinafter defined).
2. Seller and Purchaser hereby represent and warrant, each to the other,
that there are no real estate brokerage commissions involved in this
transaction and each party hereby respectively agrees to indemnify,
defend and hold the other party harmless from and against the claim of
any broker through either Seller or Purchaser, as the case may be. This
representation and warranty shall survive the First Closing and the
Second Closing.
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 under leases covering the buildings and the rights to use all
of common areas for the entire terms and option periods of each
respective lease. Any monetary concessions (e.g., free rent periods,
tenant allowances, etc.) given to any tenants that extend beyond the
First Closing with respect to Phases I and III and the Second Closing
with respect to Phase II shall be settled at closing by Seller giving a
full cash credit to Purchaser for any and all of those concessions. All
leasing or brokerage commissions due on account of any lease in effect as
of the date of the First Closing with respect to Phases I and III and the
Second Closing with respect to Phase II shall either be paid and
discharged by Seller or credited to Purchaser.
4. Seller warrants and represents (TO THE BEST OF THE SELLER'S KNOWLEDGE),
that the Property is or when it is delivered to the tenants will be free
of violations, the interior and exterior structures are or will be in a
good state of repair, free of leaks, structural problems and mold, and
the Property is or will be 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.
5. Seller warrants and represents (TO THE BEST OF THE SELLER'S KNOWLEDGE),
that during the term of the leases the tenants and guarantors, if
applicable, are responsible for and pay all operating expenses relating
to the Property on a prorata basis (subject to the terms of each specific
lease), including but not limited to, real estate taxes, common area
utilities, insurance and all common area maintenance to the parking lot
and the like.
After the Termination Date and prior to the First Closing with respect to
Phases I and III and the Second Closing with respect to Phase II, Seller
shall not enter into or extend any agreements or Property leases without
Purchaser's approval which approval shall not be unreasonably withheld or
delayed. A condition precedent to Purchaser's obligations hereunder is
that any work presently in progress on the Property shall be completed by
Seller prior to the First Closing with respect to Phases I and III and
prior to the Second Closing with respect to Phase II.
6. It is understood that the Seller, prior to the First Closing or the
Second Closing, as applicable, shall be liable and responsible at its
sole cost and expense, to: (i) complete, prior to the First Closing, the
construction of the 98,600 square foot shopping center comprising Phase I
and the 30,000 Best Buy comprising Phase III, and complete, prior to the
Second Closing, the construction of the 44,987 square foot addition to
the shopping center comprising Phase II, to the extent the same is not
completed as of the date hereof; and (ii) obtain final unconditional
occupancy permits (subject to terms of each lease and local custom) (for
each tenant space), which shall be issued from the City of Jackson,
Tennessee and/or any required governmental agencies for Phases I and III
prior to the First Closing and for Phase II prior to the Second Closing;
and (iii) obtain a subdivision of (a) the Phase III portion of the
Property from Phase IV prior to the First Closing; and
(b) the Phase I and Phase II portions of the Property from the Kohl's
tract prior to the First Closing; and (iv) obtain a certificate for the
property signed by the current project architect and current engineer
that the construction of Phases I and III of the shopping center has been
substantially completed prior to the First Closing and that the
construction of Phase II of the shopping center has been substantially
completed prior to the Second Closing, all in accordance with the plans
and specifications as agreed to by the City of Jackson, Tennessee, and
all applicable governmental rules, ordinances, regulations and
requirements have been substantially complied with ("Substantial
Completion"). Seller shall indemnify and warrants and represents to
Purchaser that Purchaser shall have no obligation whatsoever regarding
the construction of the above shopping center or placing tenants into the
rentable rental spaces.
Said construction shall be in accordance with the requirements of the
Property leases and shall be completed in total in accordance with all
the plans and specifications as accepted by the City of Jackson,
Tennessee for the shopping center. Subject to the terms of the escrow
provision in Paragraph 14, below, a condition precedent to Purchaser's
obligations hereunder is that each and every tenant in Phase I and Phase
III (with respect to the First Closing) and Phase II (with respect to the
Second Closing) of the shopping center (as described upon the site plan
attached hereto as Exhibit B), guarantor or subtenant shall: (i) be
subject to a signed lease, and (ii) the tenant shall have accepted its
space and opened for business to the public with a fully-stocked store,
and (iii) provide evidence to Purchaser that all tenant improvement
allowances due for Phases I and III at the time of First Closing and for
Phase II at the time of the Second Closing have been paid for by Seller,
with Seller giving Purchaser credit at the First or Second Closing, as
applicable, for any tenant improvement allowances to be paid to any
tenants that were not due to the tenants at the time of said closing, and
(iv) a certificate of occupancy or its equivalent occupancy permit issued
by the local governmental authorities, for such tenant's respective
demised premises, and (v) the tenant executes and delivers an acceptable
estoppel certificate to Purchaser subject only to "punch list" items
(collectively, the "Tenant Conditions"). Seller shall be solely liable
for any and all "punch list" items for a period of one year from the date
of the First Closing. All warranties will be assigned to Purchaser
(including the roof warranties which shall be acknowledged by the roof
material provider, at Seller's cost).
Seller shall indemnify and guarantee to absolutely pay any costs
whatsoever to complete the construction of the above shopping center,
including any costs whatsoever needed to place each of the tenants into
their agreed spaces according to each tenant's lease, which leases shall
be subject to Purchaser's approval, which approval shall be given on or
before the Termination Date or any such approval rights shall be deemed
to be waived by Purchaser.
7. Not less than ten (10) days prior to First Closing, Seller shall furnish
Purchaser with estoppel letters from Best Buy, Marshalls, Books A
Million, Bed, Bath & Beyond, and Dress Barn, and Rack Room; and 70% of
the other tenants in Phase I and III of the shopping center in the form
required under each respective lease (in the absence of such form, in the
form attached hereto as Exhibit C and made a part hereof); and a seller
estoppel for those tenants who have not provided an estoppel as set forth
herein. In addition, not less than ten (10) days prior to the Second
Closing, Seller shall furnish Purchaser with estoppel letters from ▇▇▇▇
and Old Navy (the "Phase II Tenants") in the form required under each
respective lease. Seller agrees to use commercially reasonable efforts to
obtain estoppel letters from Home Depot and from Kohl's Department
Stores, Inc. with respect to the existing declarations recorded against
the Property; provided, however, that failure or refusal of Home Depot
and/or Kohl's to provide said estoppels shall not constitute a default by
Seller hereunder.
8. Seller is responsible for payment of any LEASING BROKERAGE FEES or
commissions which are due any leasing brokers for the existing Property
leases for Phases I and III as of the date of the First Closing and for
Phase II as of the date of the Second Closing.
9. This Agreement is subject to Seller supplying to Purchaser prior to the
First Closing a certificate of insurance from the Phases I and III
tenants and prior to the Second Closing from the Phase II Tenants in the
form required under each lease.
10. Seller shall supply to Purchaser a copy of its existing environmental
report. Any further environmental studies desired by Purchaser shall be
performed at Purchaser's sole cost and expense.
11. The above sale of the real estate shall be consummated by conveyance of a
special warranty deed from Seller to Purchaser's designee, with the
Seller paying any city, state, or county transfer taxes for the either
the First Closing or the Second Closing, as the case may be, and Seller
agrees to cooperate with Purchaser's lender, if any, and the money
lender's escrow, at no cost to Seller.
12. The First Closing, which shall include Phase I and Phase III, shall occur
through Chicago Title & Trust Company, in Chicago, Illinois with ▇▇▇▇▇
▇▇▇▇▇▇ as Escrowee, fifteen (15) days following the expiration of the
Termination Date, at which time title to the above Property shall be
acceptable to Purchaser in its commercially reasonable discretion.
Purchaser shall be responsible for the costs and expenses of the title
commitment and issuance of its title policy (including all Purchaser
required endorsements), except that Seller shall give to Purchaser at the
First Closing a credit for the cost of the title commitment and the title
premium based on the gross purchase price for Phases I and III of the
Property, and Seller shall give to Purchaser at the Second Closing a
credit for the cost of the title commitment and premium based on the
gross purchase price for Phase II of the Property. All warranties and
representations being materially true now and at the First Closing. 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 on the most recent ▇▇▇▇ or latest assessment, or
the estimated assessments 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. At closing, no credit will be given to Sellers
for any past due, unpaid or delinquent rents or reimbursements; however,
Seller shall not be precluded from seeking said past due amounts from any
of the tenants after the First Closing or the Second Closing.
13. The Second Closing, which shall include all or a portion of Phase II
owned by Seller, shall occur within ten (10) days after the date that
Phase II Substantial Completion has occurred and ▇▇▇▇ and Old Navy have
satisfied the Tenant Conditions, but in no event later than March
31, 2005. At the First Closing Purchaser shall fund $20,769,721 of the
Purchase Price, however, the sum of $6,258,256 (the "Second Closing
Consideration") shall be held by Buyer until the Second Closing, at which
time the same shall be disbursed to Seller. By signing below, Inland
Western Retail Real Estate Trust, Inc. agrees to execute a guaranty at
the First Closing guaranteeing Purchaser's obligations to proceed to the
Second Closing and purchase Phase II of the Property.
Notwithstanding the foregoing, in the event that one Phase II Tenant
satisfies the Tenant Conditions prior to the other Phase II Tenant, then
Seller, at its sole option, may elect to subdivide Phase II of the
Property so that ▇▇▇▇ and Old Navy are separate parcels. If Seller so
elects, then the Second Closing shall be split into two separate closings
- one closing with respect to the Old Navy parcel (the "Old Navy
Closing") and one closing with respect to the ▇▇▇▇ parcel (the "▇▇▇▇
Closing"). The Old Navy Closing or the ▇▇▇▇ Closing, whichever occurs
first, shall take place fifteen (15) days after the Phase II portion of
the Property has been subdivided and the Tenant Conditions with respect
to that Phase II Tenant have been satisfied. The second half of the
Second Closing shall take place fifteen (15) days after the remaining
Phase II Tenant satisfies the Tenant Conditions. Purchaser shall pay to
Seller $2,427,272 of the Second Closing Consideration at the Old Navy
Closing and $3,830,984 of the Second Closing Consideration at the ▇▇▇▇
Closing, less prorations as set forth herein. The Deposit shall be
credited at the last closing of the Property. In the event the Second
Closing is split as set forth in this paragraph 13, Seller shall give to
Purchaser at the Old Navy Closing a credit for the cost of the title
commitment and premium based on the gross purchase price for Old Navy and
Seller shall give to Purchaser at the ▇▇▇▇ Closing a credit for the cost
of the title commitment and premium based on the gross purchase price for
▇▇▇▇.
14. This Agreement is subject to Phase I and Phase III being 100% occupied at
the time of the First Closing, with all tenants having satisfied the
Tenant Conditions. In the event that it is less than 100% occupied and
100% satisfaction of the tenant Conditions collected, but in no event
less than 85% occupancy and 85% satisfaction of the Tenant Conditions,
then the parties shall enter into a separate escrow agreement whereby the
Seller shall escrow an amount equal to the rent and all reimbursable
expenses for any vacancy and any tenant not then having satisfied the
Tenant Conditions based on the rent roll attached hereto as Exhibit D.
The amount of the escrow shall be equal to two years (the "Escrow
Period") of these payments; provided, however, that in the event Rue 21
or any national or regional tenant has either not yet opened for business
or not yet begun to pay rent, then said escrow amount shall be equal to
the rent and all reimbursable expenses for the time period from the date
of the First Closing until the date that said rent is to be paid by the
tenant per the lease. As an example, if 7,200 square feet were vacant or
satisfying the Tenant Conditions at the First Closing and the rent for
the space was $16.00 per square foot and the CAM, tax and insurance were
an additional $2.50 per square foot, then the escrow would be equivalent
to $18.50 x 7,200 square feet x 2 years,
or $266,400.00. Seller shall be responsible for leasing all space
involved with the above escrow and shall be responsible for any leasing
commissions for space not under lease, tenant improvements for space not
under lease, and all other costs associated with placing a third party
tenant into said space (this obligation of Seller expires upon the
termination of the Escrow Period). Once a tenant meeting the agreed upon
criteria set forth on Exhibit E is placed into said space and the Tenant
Conditions are then satisfied, then the Seller shall be paid from the
escrow any amount of funds unused for that space. With respect to any
space that is vacant at the time of the First Closing, if said space has
not been leased at the expiration of the Escrow Period, then Seller shall
pay to Purchaser any leasing commissions due for said vacant space at
$3.00 per square foot and the projected tenant improvements cost at
$15.00 per square foot, within thirty (30) days after the expiration of
the Escrow Period.
15. Neither Seller (Landlord) or any tenant and guarantor shall be in default
on any lease or agreement at either the First Closing or the Second
Closing beyond all applicable grace periods, nor is there any threatened
or pending litigation.
16. Seller, if applicable, warrants and represents that he has paid all
unemployment taxes to date.
17. Prior to the First 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
Agreement is subject to Purchaser's reasonable satisfaction, to be
determined on or before the Termination Date, that all guarantees and
warranties survive the First Closing and are assignable and transferable
to any titleholder now and in the future.
18. Fifteen (15) days prior to the First Closing, Seller (at Seller's cost)
must provide a current Urban ALTA/ACSM spotted survey of Phases I and III
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. Seller shall also provide
to Purchaser a similar survey for Phase II at least fifteen (15) days
prior to the Second Closing.
19. Seller agrees that, at the First Closing, all work listed on Exhibit F
attached hereto will be completed for all vacant space.
20. 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.
21. Seller agrees to fully cooperate with KPMG (Purchaser's auditors), at no
cost to Seller, in connection with KPMG's audit of the operations of the
Property. Seller agrees to execute and deliver to KPMG an audit letter at
the time the audit is performed.
This Agreement is, of course, predicated upon the Purchaser's review and
written approval on or before the Termination Date 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.
This Agreement may be executed in multiple counterparts which, when taken
together, shall constitute one and the same original. In addition, this
Agreement may be transmitted between the parties via facsimile, and signatures
transmitted via facsimile shall constitute original signatures and shall be
binding upon the parties.
In order for this Agreement to be valid, it must be executed by both parties
no later than 4:00 p.m. Central Time on Tuesday, June 22, 2004.
[SIGNATURES CONTINUED ON NEXT PAGE]
This Agreement is effective as of the date of full execution.
SELLER: ▇▇▇▇▇▇▇ PROPERTY ASSOCIATES G.P.
By: ▇▇▇▇▇▇▇ MANAGEMENT ASSOCIATES, LLC
\s\ [ILLEGIBLE] By: \s\ [ILLEGIBLE]
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Witness
Its: Chief Manager
Date: 6/22/04
-------------------------
PURCHASER: INLAND REAL ESTATE ACQUISITIONS,
INC
\s\ [ILLEGIBLE] By: \s\ [ILLEGIBLE]
-------------------------- ---------------------------
Witness
Its: SR VP
Date: 6/22/04
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INLAND WESTERN RETAIL REAL ESTATE TRUST, INC
By: \s\ [ILLEGIBLE]
-----------------------------
Its: PRINCIPAL FINANCIAL OFFICER
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Date: 6/22/04
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EXHIBIT A
EXISTING TENANTS
RENT
RENT PER ANNUAL MONTHLY COMMENCEMENT
TENANT SQ.FT. SQ.FT. RENT RENT DATE
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Best Buy 30,000 $ 16.00 480,000 40,000 October 9, 2003
Marshalls 28,000 $ 7.75 217,000 18,083 October 9, 2003
Bed Bath & Beyond 20,000 $ 9.75 195,000 16,250 November 7, 2003
Books A Million 12,500 $ 10.75 134,375 11,198 October 9, 2003
Dress Barn 7,700 $ 13.35 102,795 8,566 October 10, 2003
Rack Room 6,000 $ 14.25 85,500 7,125 April 1,2004
Spoil Me Rotten 2,000 $ 15.50 31.000 2,583 March 31 ,2004
Don Poncho Restaurant 4,000 $ 15.00 60,000 5,000 April 21, 2004
Grass Monkey 1,600 $ 15.00 24,000 2,000 March 4, 2004
▇▇▇▇▇ Fargo 2,400 $ 15.50 37,200 3,100 May 24, 2004
Oreck Vacuum 1,600 $ 15.50 24,800 2,067 December 8, 2003
Quiznos 1,600 $ 18.00 28,800 2,400 March 26, ▇▇▇▇
▇▇▇ 21 4,000 $ 15.00 60,000 5,000 Not Open Yet
Shop Space 7,200 $ 16.00 115,200 9,600
------- -------------------
SUBTOTAL 128,600 1,595,670 132,973
Old Navy 14,800 $ 12.60 186,480 15,540 New Lease
▇▇▇▇ 30,187 $ 9.75 294,323 24,527 New Lease
------- -------------------
SUBTOTAL 44,987 480,803 40,067
PROJECT TOTALS 173,587 2,076,473
EXHIBIT B
SITE PLAN
[FLOOR PLAN]
THE COLUMNS
MASTER PLAN
[ILLEGIBLE]
[GRAPHIC]
GBT REALLY CORPORATION
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[ILLEGIBLE]
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
[ILLEGIBLE]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[ILLEGIBLE]
[GRAPHIC]
EXHIBIT C
FORM ESTOPPEL CERTIFICATE
To: Inland Real Estate Acquisitions, Inc., and
___________________________________________
and its lenders, successors and assigns ("Purchaser")
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Shopping Center Lease dated ___________________________ (the "Lease"),
between Jackson Property Associates, G.P., as "Landlord", and
_________________________, as "Tenant", for Space Number ________ (the
"Premises") at The Columns in Jackson, Tennessee (the "Property")
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof:
a. Dates of all amendments, letter
agreements, modifications and
waivers related to the Lease: ________________________________
b. Commencement Date: ________________________________
c. Expiration Date: ________________________________
d. Current Annual Base Rent:
Adjustment Date: ________________________________
Rental Amount: ________________________________
e. Fixed or CPI Rent Increases: ________________________________
f. Square Footage of Premises: ________________________________
g. Security Deposit Paid to Landlord: ________________________________
h. Renewal Options: _____Additional Terms for ______
years at $__________ per year
i. Termination Options:
Termination Date: ________________________________
Fees Payable: ________________________________
2. Tenant further certifies to Purchaser that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been
sublet by Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits
or abatements required to be given by Landlord to Tenant have been
given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to
pay interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in
paragraph 1(i));
j. Tenant has not been granted any options or rights of first refusal
to purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or
directives relating to the use or condition of the Premises or the
Property;
1. no hazardous wastes or toxic substances, as defined by all
applicable federal, state or local statutes, rules or regulations
have been disposed, stored or treated on or about the Premises or
the Property by Tenant;
m. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the
Lease or of the rents provided for therein;
n. Tenant has not filed, and is not currently the subject of any
filing, voluntary or involuntary, for bankruptcy or reorganization
under any applicable bankruptcy or creditors rights laws;
o. the Lease does not give the Tenant any operating exclusives for the
Property; and
p. Rent has been paid through _______________.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease
until Tenant is notified otherwise in writing by Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at
lender's request, so long as the lender agrees that unless Tenant is in
default under the Lease, the Lease will remain in full force and effect.
Tenant further acknowledges and agrees that Purchaser (including its
lender), their respective successors and assigns shall have the right to
rely on the information contained in this Certificate. The undersigned is
authorized to execute this Tenant Estoppel Certificate on behalf of
Tenant.
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By:
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Its:
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Date: , 2004
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EXHIBIT D
RENT ROLL
RENT ROLL
TENANT SQUARE FEET LEASE TERM DATES RENT OPTIONS
ROLL 30,187 10 years [ILLEGIBLE] [ILLEGIBLE]
BEST BUY 30,000 10 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
MARSHALLS 28,000 10 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
BED BATH AND BEYOND 20,000 10 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
OLD NAVY 14,800 5 years [ILLEGIBLE] [ILLEGIBLE]
BOOKS - A - MILLION 12,500 5 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
DRESS BARN 7,762 5 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
ROCK ROOM SHOES 6,000 5 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
DON PANCHOS RESTAURANT 4,000 5 years [ILLEGIBLE] [ILLEGIBLE]
▇▇▇▇▇ FARGO 2,400 5 years [ILLEGIBLE] [ILLEGIBLE]
SPOIL ME ROTTEN 2,000 5 years [ILLEGIBLE] [ILLEGIBLE] no option
QUIZZNOS [ILLEGIBLE] 10 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
ORECK VACUUMS [ILLEGIBLE] 5 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
GRASS MONKEY [ILLEGIBLE] 5 years [ILLEGIBLE] [ILLEGIBLE] [ILLEGIBLE]
EXHIBIT E
TENANT CRITERIA
1. TERM. The tenant agrees to enter into a lease for a term of at least three
(3) years.
2. PREMISES. The tenant agrees to enter into a lease for at least 1,600 square
feet of space.
3. MINIMUM ANNUAL RENT. The tenant pays at least the minimum annual rent set
forth below:
7,200 square feet of shop space -- $16.00 per square foot
4. SECURITY DEPOSIT. The tenant agrees to pay a security deposit of at least
$2,100, unless the tenant is a regional or national tenant, in which case
no security deposit shall be required..
5. EXCLUSIVES/USE RESTRICTIONS. The tenant meets all exclusive and restriction
rights of any tenants.
6. LEASE FORM. The tenant agrees to enter into the standard lease form used
for other shop space in the shopping center, amended as required.
EXHIBIT F
WORK TO BE COMPLETED ON VACANT SPACE
1. DESCRIPTION OF LANDLORD'S WORK:
Landlord's Work shall be done in accordance with the specifications set
forth below, shall be limited to the work set for the below and shall
exclude all other work on the Premises or elsewhere.
A. STRUCTURE:
1. Frame: The building shall, at Landlord's option, be of steel frame,
reinforced concrete or bearing wall construction. Governing building codes
shall apply.
2. Exterior Walls: Shall be of masonry or such other material or materials
selected by Landlord.
3. Roof: Shall be built-up roof or such other material or materials selected
Landlord.
4. Walls: Walls separating the premises from other storerooms shall be gypsum
board. Fire walls will be provided in accordance with applicable code.
5. Exits: As required by governing code.
6. Doors:
1. Entry: Aluminum storefront single 3"-0" x 7'-0" aluminum doors.
2. Receiving: 3' - 0" x 7' - 0" hollow metal door with hollow metal
frame (4"head)
Hardware
1. Entry: Push/Pull plates; cylinder; key outside, thumb turn
inside.
2. Receiving: Lock and deadbolt, lockguard, closet and chain,
weather-stripping and threshold.
B. STOREFRONT:
1. Landlord shall provide the storefront in accordance with Landlord's master
plan.
2. Show windows, if required, shall be entirely furnished and installed by
Tenant.
D. INTERIOR:
1. Landlord shall provide a concrete floor only (except for the rear 20')
suitable for covering. Floor covering shall be furnished and installed by
Tenant, with floor covering attached to the floor and becoming and
remaining the property of the Landlord.
2. Landlord shall provide drywall, taped, spackled and ready for painting on
wall to 10'-0".
E. PLUMBING:
Landlord shall furnish and install 3/4" water and sewer 4" service lines to the
Premises. Roughing in and installations of all Tenant's equipment shall be by
Tenant at Tenant's expense.
F. HEATING, VENTILATING & AIR CONDITIONING:
1. Landlord shall furnish and install roof top heating and cooling unit(s)
sized to one ton per 350 s.f. of sales area.
2. Electrical and gas to units are Tenant's expense.
G. ELECTRICAL:
1. Empty conduit for electrical and telephone services are provided to back
wall per Landlord master plan.