Exhibit 10.155
Store No. 0000
Xxxx Xxxxx Xxxxx, XX
REAL ESTATE PURCHASE AND LEASEBACK AGREEMENT
This Real Estate Purchase and Leaseback Agreement ("AGREEMENT") is made by
and between ECKERD CORPORATION, a Delaware corporation ("SELLER") and INLAND
REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, or its designee or
nominee ("PURCHASER"). In consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. THE PROPERTY.
1.1 Seller agrees to sell and Purchaser agrees to purchase, upon and
subject to the terms and conditions set forth in this Agreement, certain
improved land located at the northwest corner of Highway 158 and Eighth Street,
and situated in the City of Kill Devil Hills, County of Dare, State of North
Carolina, as legally described on the attached EXHIBIT "A" ("PROPERTY").
Contemporaneously with the purchase and sale of the Property as contemplated in
this Agreement, Purchaser shall lease the Property to Seller pursuant to a Lease
Agreement ("LEASE") in substantially the same form as that attached as EXHIBIT
"B."
2. PURCHASE PRICE.
2.1 The purchase price for the Property is Three Million Six Hundred
Fifty Thousand Dollars ($3,650,000.00) as adjusted pursuant to this Agreement
("PURCHASE PRICE"). The Purchase Price shall be paid in federal funds by
Purchaser to the Title Insurer/Escrow Agent for the benefit of Seller at Closing
by wire transfer. The Purchase Price shall be increased to include the closing
costs paid by Seller pursuant to Section 10.1 of this Agreement.
2.2 The annual Rent under the Lease has been calculated by multiplying
the Purchase Price for the Property by a rate of 8.30% with a fifty-cent ($0.50)
per square foot increase for each successive option period.
3. XXXXXXX MONEY.
3.1 Within ten (10) days of the Effective Date of this Agreement,
Purchaser shall deposit the sum of Twenty Five Thousand and NO/100 Dollars
($25,000.00) as xxxxxxx money ("XXXXXXX MONEY") with LandAmerica National
Commercial Services, 00 XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention Xxxxxx X. Xxxx, VP National Accounts ("TITLE INSURER/ESCROW AGENT"),
which sum shall be held for the benefit of Seller by Title Insurer/Escrow Agent
in escrow, subject to disbursement in accordance with the terms and provisions
of this Agreement. Provided that Purchaser furnishes Title Insurer/Escrow Agent
with a form W-9 containing Purchaser's Social Security Number or U.S. Taxpayer
Identification Number as the case may be, and any necessary escrow documents,
the Xxxxxxx Money shall be held by Title Insurer/Escrow Agent in an
interest-bearing money market savings account, and
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interest earned on the Xxxxxxx Money shall be reported under Purchaser's Social
Security Number or U.S. Taxpayer Identification Number, as the case may be.
3.2 Except as otherwise provided in this Agreement, at Closing, the
Xxxxxxx Money and interest accrued thereon, if any, shall be returned to
Purchaser upon the Purchaser's delivery of the Purchase Price, plus or minus
prorations, to the Title Insurer/Escrow Agent by certified or cashier's check or
by wire transfer. Notwithstanding anything in this Agreement to the contrary,
the Xxxxxxx Money, and any accrued interest on it, shall be refunded to
Purchaser in the event Purchaser terminates this Agreement as provided in this
Agreement.
4. TITLE AND SURVEY MATTERS.
4.1 As soon as practicable after the Closing Date, Seller shall deliver
to Purchaser a standard owner's policy of title insurance issued by the Title
Insurer/Escrow Agent ("TITLE POLICY"). The Title Policy shall insure marketable
title to the Property in the amount of the Purchase Price, free and clear of all
liens, encumbrances and exceptions whatsoever, save and except only for those
easements, restrictions and other matters of record affecting title to the
Property which are Permitted Exceptions (as hereinafter defined).
4.2 Purchaser shall have until the end of the Due Diligence Period (as
hereinafter defined) in which to review the title commitment and as-built survey
to be delivered by Seller pursuant to Section 5.1, and to obtain any
modifications, endorsements or other revisions to either the title commitment or
the survey required by Purchaser, at Purchaser's cost. If Purchaser is unable to
obtain any modification, endorsement or other revision to the title commitment
or survey required by Purchaser, or if any items remain on the title commitment
or survey which are not acceptable to Purchaser ("UNPERMITTED EXCEPTIONS"), then
on or before the end of the Due Diligence Period, Purchaser shall so notify
Seller (an "OBJECTION NOTICE"). Seller has a period of ten (10) days after the
date of the Objection Notice in which Seller, using good faith efforts, shall
attempt to remove such Unpermitted Matters or remedy same in a manner
satisfactory to Purchaser in its sole and absolute discretion, or have the Title
Insurer/Escrow Agent commit to insure against loss or damage that may be
occasioned by such exceptions (in endorsements satisfactory to Purchaser). If
Seller does not cure any Unpermitted Exceptions to Purchaser's satisfaction
within such period, then Purchaser may either (a) terminate this Agreement by
giving written notice to Seller of such termination not later than five (5) days
following the end of the ten (10) day cure period, in which event the Xxxxxxx
Money, and all interest earned thereon, shall be returned to Purchaser and
neither party shall have any further obligations or liabilities hereunder or (b)
accept such Unpermitted Exceptions. Any item not specified in the Objection
Notice or subsequently accepted by Purchaser shall be a "PERMITTED EXCEPTION".
Seller shall be obligated to remove prior to Closing all mortgages and other
liens or encumbrances of a definite or ascertainable monetary amount, and if
Seller fails to do so, Purchaser may elect to terminate this Agreement. At the
Closing, and as a further condition of Purchaser's performance of its
obligations hereunder, Seller shall cause the Title Insurer/Escrow Agent to
deliver to Purchaser the Title Policy or a marked-up and signed commitment to
deliver same.
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5. DUE DILIGENCE INFORMATION.
5.1 Within ten (10) days of the Effective Date, or as soon as possible
thereafter (if such documentation is not completed or received by Seller within
such ten (10) day period), Seller shall provide Purchaser with the following
information: (a) the Lease, in substantially the same form as that attached as
EXHIBIT "B" proposed by Seller to be executed by the parties; (b) environmental
reports pertaining to the Property in Seller's possession (Seller will not be
required to obtain new environmental reports); (c) tax data for the Property, if
available; (d) the most recent boundary survey of the Property available; (e) an
irrevocable commitment for the Title Policy issued by the Title Insurer/Escrow
Agent and copies of all exception documents in Seller's possession; and (f) an
As-Built Survey of the Property (collectively, "DUE DILIGENCE INFORMATION").
6. DUE DILIGENCE PERIOD.
6.1 Purchaser shall have thirty (30) days from the Effective Date (the
"DUE DILIGENCE PERIOD") to review the Due Diligence Information and to conduct
all tests, inspections, feasibility and other studies and all other
investigations concerning the Property that Purchaser requires (including,
without limitation, environmental tests and assessments, inspection of the
physical condition of the Property, appraisals, surveys, and investigation of
zoning and other legal requirements) to determine whether the Property is
satisfactory to Purchaser, and to notify Seller in writing of any specific
objections to it. In the event Purchaser decides not to purchase the Property
based upon Purchaser's review of the Due Diligence Information or other
investigations, Purchaser shall so notify Seller in writing within the Due
Diligence Period. Thereafter, this Agreement shall be considered terminated,
null and void, and neither party shall have any further obligation one to the
other, and the Xxxxxxx Money, and any interest earned thereon, shall be returned
to Purchaser and neither party shall have any further obligations or liabilities
hereunder. If Purchaser does not so notify Seller within the Due Diligence
Period, the parties will proceed to Closing in the manner described in this
Agreement.
6.2 Purchaser's obligation to acquire the Property and consummate the
other transactions contemplated hereunder shall be conditioned on satisfaction
of the following requirements (the "CONSTRUCTION CONDITIONS").
(a) Seller having obtained and delivered to Purchaser a final,
unconditional certificate of occupancy from the City of Kill Devil Hills, North
Carolina, and any other applicable governmental authority with respect to all of
the Property;
(b) Seller having obtained and delivered to Purchaser a
certificate of completion, signed by an independent architect and independent
engineer, indicating that all improvements shown on the Plans and Specifications
have been completed and are in compliance with all applicable governmental
rules, ordinances, regulations and requirements; and,
(c) Seller having taken possession of all of its leasehold
premises as described in the Lease, opened for business to the public, and,
concurrent with the Closing, commenced full payment of rents and other charges
pursuant to the Lease.
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(d) Seller shall use best efforts to complete the Construction
Conditions on or before March 31, 2004. If the Construction Conditions have not
been completed on or before March 31, 2004, then Purchaser may terminate this
Agreement by giving written notice to Seller of such termination. Upon the
termination of the Agreement pursuant to this Section 6.2, the Xxxxxxx Money,
and all interest earned thereon, shall be returned to Purchaser and neither
party shall have any further obligations or liabilities hereunder.
7. INTENTIONALLY DELETED.
8. DELIVERIES AT CLOSING.
8.1 At the time of Closing, Seller shall deliver the following original
documents:
8.1.1 A special warranty deed conveying good and marketable title
to the Property to Purchaser free and clear of all liens, encumbrances and
exceptions whatsoever, save and except only for the Permitted Exceptions;
8.1.2 A quitclaim xxxx of sale conveying all of Seller's right,
title and interest in any personal property used in the operation of the
Property to Purchaser free and clear of all liens, security interests and
adverse claims;
8.1.3 An appropriate "Seller's Affidavit" so as to enable Title
Insurer/Escrow Agent to delete the "standard" exceptions for such matters from
the Title Policy and otherwise insure any "gap" period occurring between the
closing and the recordation of the closing documents;
8.1.4 An appropriate FIRPTA Affidavit or Certificate by Seller,
evidencing that Seller is not a foreign person or entity under Section
1445(f)(3) of the Internal Revenue Code, as amended;
8.1.5 A duly executed counterpart of the closing statement;
8.1.6 An executed Lease in substantially the same form as the
attached EXHIBIT "B";
8.1.7 A duly executed counterpart of a Memorandum of Lease, in
recordable form, acceptable to Purchaser in form and in substance;
8.1.8 A certificate executed by Seller confirming that the
representations and warranties made by Seller in this Agreement remain true and
correct as of the Closing Date;
8.1.9 A certificate of insurance, evidencing the insurance
coverages required to be provided by Seller pursuant to the Lease, acceptable to
Purchaser in form and substance;
8.1.10 An executed tenant estoppel certificate and executed
subordination, nondisturbance and attornment agreement in the forms required by
the Lease or as otherwise may be acceptable to the parties;
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8.1.11 An estoppel certificate, in form and substance acceptable to
Purchaser, stating that there are no defaults under any reciprocal easement
agreements, operating agreements, declarations, or similar documents affecting
the Property ("REA DOCUMENTS"), executed by all parties ("REA PARTIES") to any
such REA Documents; and
8.1.12 Such other closing documents as are reasonably necessary and
proper in order to consummate the transaction contemplated by this Agreement
including, without limitation, lien waivers showing that all bills and invoices
for all work on the Property or otherwise have been paid, and that lien waivers
from all mechanics and materialmen have been obtained.
8.2 At the time of Closing, Purchaser shall deliver the following
original documents:
8.2.1 An executed Lease in substantially the same form as the
attached EXHIBIT "B";
8.2.2 A duly executed counterpart of the closing statement;
8.2.3 A duly executed counterpart of a Memorandum of Lease, in
recordable form, acceptable to Seller in form and substance; and
8.2.4 Such other closing documents as are reasonably necessary and
proper in order to consummate the transaction expressed in this Agreement.
9. CLOSING.
9.1 The Purchase Price and the executed closing documents described
above shall be delivered, and the purchase and sale transaction expressed in
this Agreement shall otherwise be consummated ("CLOSING") on a date which is
mutually agreeable to Seller and Purchaser, but in any event not later than 10
days following the latest of: (a) the end of the Due Diligence Period, (b) the
satisfaction of the Construction Contingencies, or (c) the end of the period in
which Purchaser may terminate this Agreement pursuant to Section 4.2 ("CLOSING
DATE"). The Closing shall occur at the offices of Title Insurer/Escrow Agent or
at such other location as is mutually agreeable to Purchaser and Seller.
Notwithstanding any other provision of this Agreement to the contrary, should
the parties fail to close on or before May 1, 2004 through no fault of
Purchaser, Purchaser may terminate this Agreement by written notice to Seller
and receive a refund of the Xxxxxxx Money and interest earned on it.
9.2 The Closing is expressly conditioned upon the contemporaneous
execution and delivery by each party to the other of the Lease in substantially
the same form as the attached EXHIBIT "B".
10. CLOSING COSTS.
10.1 Seller shall pay all transfer taxes, escrow fees, the premium for
the Title Policy, the cost of recording the special warranty deed, and any other
closing costs and expenses necessary to transfer title of the Property to
Purchaser, but all such costs may be added to the Purchase Price, and the rent
payable under the Lease shall be increased as specified in this
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Agreement. Purchaser shall pay all fees necessary pertaining to placing a
mortgage on the Property.
10.2 Purchaser and Seller shall pay their own attorney's fees.
11. PRORATIONS.
11.1 Through the date of Closing, Seller shall pay any ad valorem taxes,
assessments, and all other operating and maintenance costs pertaining to the
Property (including any charges, fees or assessments, if any, levied or assessed
on or against the Property pursuant to any REA Document). After the date of
Closing, the parties shall be responsible for all such costs, expenses and taxes
in the manner expressed in the Lease.
12. COMMISSIONS.
12.1 Purchaser and Seller warrant and represent to each other that except
for Xxxxx Xxxxxxxxxxx of Xxxxxx & Millichap, there were no other brokers
involved in this transaction. Should this transaction close successfully a
commission of 2% of the total purchase price shall be payable to Marcus &
Millichap upon close of escrow. Purchaser and Seller agree that in the event of
a breach of this warranty and representation, the offending party shall
indemnify and hold the non-offending party harmless with respect to any loss or
claim for brokerage commission, including all attorneys' fees and costs of
litigation through appellate proceedings. This Section of the Agreement shall
expressly survive Closing under this Agreement and any earlier termination of
this Agreement.
13. PROPERTY SOLD "AS-IS".
13.1 Except as expressly set forth in this Agreement, the Property shall
be sold and conveyed by Seller and accepted by Purchaser in "AS IS" condition
without any warranty or representation whatsoever on the part of Seller, express
or implied, as to its condition, classification, past or present use, or
merchantability, fitness or suitability for any particular purpose, use, design,
construction or development, including without limitation any warranty or
representation as to surface or subsurface condition, zoning, or the
sufficiency, accessibility and capacity of utilities for Purchaser's intended
use of the Property, it being agreed that all such risks are to be borne by
Purchaser and that Purchaser is relying solely on its own inspection and
investigation of the Property with respect to such risks and not on any
statement, representation or warranty made by Seller or anyone acting or
claiming to act on behalf of Seller.
14. REPRESENTATIONS AND WARRANTIES.
14.1 Each party warrants and represents to the other that this Agreement
constitutes the valid and binding obligation of each party, enforceable against
each party in accordance with the Agreement's terms. All actions required to be
taken by each party to authorize it to enter into and carry out this Agreement
have been, or prior to the date of Closing shall be, duly and validly taken.
14.2 Seller represents and warrants to Purchaser that:
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(a) Seller has full power and authority to enter into this
Agreement, bind Seller and the Property to the commitments made hereunder, and
convey or cause the conveyance of the Property to Purchaser.
(b) The execution, delivery and performance by Seller of this
Agreement shall not constitute or cause a default or breach of any agreement or
undertaking of Seller or concerning the Property.
(c) No person or entity, except Purchaser, has been granted any
options, rights of first refusal or other purchase rights with respect to the
Property.
(d) No portion of the Property has been condemned or otherwise
taken by any public authority, and Seller has no knowledge that any such
condemnation or taking is threatened or contemplated.
(e) To the best of Seller's knowledge, the Property is not in
violation of any law, ordinance, code or regulation and there are no latent or
patent defects concerning the Property, and the Property complies with all
applicable zoning laws, including, but not limited to, parking, height and
setback requirements.
(f) To the best of Seller's knowledge, the Property is not in
violation or breach of any of the covenants, conditions, restrictions or other
agreements affecting the Property, including, but not limited to, the REA
Documents.
(g) Seller has accepted possession of the leasehold premises
described in the Lease "as-is" and there are no "punchlist" or other incomplete
items. Seller agrees to look solely to itself or responsible third parties, and
not to Purchaser, with respect to all construction-related matters, including
callbacks or warranty work, if any.
14.3 Purchaser represents and warrants to Seller that:
(a) Purchaser has the power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
(b) The execution of this Agreement by Purchaser is the duly
authorized and legally binding action of Purchaser, and upon execution hereof,
Purchaser shall be bound by and subject to the terms and provisions of this
Agreement.
14.4 Each representation and warranty of each party contained in this
Agreement shall be true and accurate as of the date of this Agreement and shall
be deemed to have been made again at and as of Closing and shall then be true
and accurate in all material respects.
14.5 This Section of the Agreement shall expressly survive Closing or any
earlier termination of this Agreement.
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15. DEFAULT BY PURCHASER; SELLER'S REMEDIES.
15.1 If the purchase and sale of the Property is not consummated in
accordance with the terms and conditions of this Agreement due to default or
breach on the part of Purchaser, Seller's sole remedy shall be to terminate this
Agreement upon ten (10) days written notice to Purchaser, whereupon the Seller
shall collect as liquidated damages the Xxxxxxx Money.
16. DEFAULT BY SELLER; PURCHASER'S REMEDIES.
16.1 If the purchase and sale of the Property is not consummated in
accordance with the terms and conditions of this Agreement due to default or
breach on the part of Seller, Purchaser, at its election, may (a) terminate this
Agreement upon ten (10) days written notice to Seller and receive a refund of
the Xxxxxxx Money and interest earned on it; or (b) seek specific performance
and recover all costs and expenses incurred in enforcing specific performance.
17. ASSIGNMENT.
17.1 This Agreement may not be assigned by Seller nor may Seller delegate
its duties or obligations hereunder without the prior express written consent of
Purchaser, such consent not to be unreasonably withheld, delayed or conditioned.
This Contract and all rights hereunder shall be assignable by Purchaser without
Seller's written consent at any time before closing to either an affiliate of
Purchaser, or an entity composed of affiliates of Purchaser, such as a limited
partnership or limited liability company, or to any real estate investment trust
of which an affiliate of Purchaser is a sponsor (any of the foregoing a
"PERMITTED ASSIGNEE"), and designate the Permitted Assignee as the grantee of
the Seller's deed and the assignee of the other conveyance and assignment
documents at closing. The Permitted Assignee shall be deemed the Purchaser under
this Agreement.
18. NOTICES.
18.1 All notices, requests or demands to be given under this Agreement
from one party to the other (collectively, "NOTICES") shall be in writing and
shall be given by personal delivery, or by overnight courier service for next
Business Day delivery at the other party's address set forth below. Notices
given by personal delivery (i.e. by the sending party or a messenger) shall be
deemed given on the date of delivery. Notices given by overnight courier service
shall be deemed given upon deposit with the overnight courier service. If any
party's address is a business, receipt by a receptionist, or by any person in
the employ of such party, shall be deemed actual receipt by the party of
Notices. The term, "BUSINESS DAY" means any day other than Saturday, Sunday or
national holiday. Notices may be issued by an attorney for a party and in such
case such Notices shall be deemed given by such party. Notices delivered to the
Property shall not constitute notice to Seller under the terms of this
Agreement. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
below to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication given to the addressee party.
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18.2 All notices shall be sent to Purchaser as follows, until Seller is
notified by Purchaser otherwise in writing:
To Purchaser at: Inland Real Estate Acquisitions, Inc.
C/O G. Xxxxxx Xxxxxxx, President
0000 Xxxxxxxxxxx Xx
Xxx Xxxxx XX 00000
with copy to: Xxxxx Xxxx, Esq.
The Inland Real Estate Group, Inc.
Law Department
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
18.3 All notices shall be sent to Seller as follows, until Purchaser is
notified by Seller otherwise in writing:
To Seller at: Eckerd Corporation
Store No. 3978
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Vice President, Real Estate
with copies to: Eckerd Corporation
Store No. 3978
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Regional Real Estate Director
and: Eckerd Corporation
Store No. 3978
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Legal Department (CW3W)
19. GOVERNING LAW AND BINDING EFFECT.
19.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State in which the Property is located and shall
be binding upon, inure to the benefit of, and be enforceable by the parties as
well as their respective heirs, personal representatives, successors and
assigns.
20. TIME OF ESSENCE.
20.1 Time is of the essence in the performance of the terms and
conditions of this Agreement. In the event any time period specified in this
Agreement expires on a Saturday, Sunday, or legal holiday in the state in which
the Property is located, the time period shall be
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extended so as to expire on the next business day immediately succeeding such
Saturday, Sunday, or legal holiday.
21. CAPTIONS.
21.1 All captions, headings, paragraph and subparagraph numbers and
letters and other reference numbers or letters are solely for the purpose of
facilitating reference to this Agreement and shall not supplement, limit or
otherwise vary in any respect the text of this Agreement.
22. ENTIRE AGREEMENT.
22.1 This Agreement supersedes all prior discussions and agreements
between Seller and Purchaser with respect to the purchase and sale of the
Property. This Agreement contains the sole and entire understanding between
Seller and Purchaser with respect to the transactions expressed in this
Agreement, and all promises, inducements, offers, solicitations, agreements,
representations and warranties previously made between the parties are merged
into this Agreement. This Agreement shall not be modified or amended in any
respect except by a written agreement executed by or on behalf of the parties to
this Agreement in the same manner as this Agreement is executed.
23. SURVIVAL OF PROVISIONS.
23.1 The warranties, representations, agreements, covenants and
indemnities of the Seller and Purchaser provided for in this Agreement shall
survive the Closing or the termination of this Agreement only to the extent
expressly provided in this Agreement.
24. VALIDITY.
24.1 In the event any term or provision of this Agreement is determined
by the appropriate judicial authority to be illegal or otherwise invalid, such
term or provision shall be given its nearest legal meaning or be construed or
deleted as such authority determines, and the remainder of this Agreement shall
remain in full force and effect.
25. ATTORNEY'S FEES.
25.1 In the event of any litigation arising out of this Agreement, the
party prevailing in obtaining the relief sought, in addition to all other sums
that it may be entitled to recover, shall be entitled to recover from the other
party its reasonable attorney's fees and expenses incurred as a result of such
litigation.
26. EFFECTIVE DATE.
26.1 This Agreement shall be effective on the date that the last of the
Seller and Purchaser have executed this Agreement ("EFFECTIVE DATE").
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27. COUNTERPARTS.
27.1 This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become a binding
agreement when one or more counterparts have been signed by each of the parties
and delivered to the other party.
28. RECORDATION.
28.1 Neither this Agreement nor any notice or memorandum of it shall be
recorded in the public records of any jurisdiction.
29. TAX DEFERRED EXCHANGE.
29.1 Seller and Purchaser agree to cooperate with each other in effecting
for the benefit of either party a like-kind exchange of real property pursuant
to Section 1031 of the United States Internal Revenue Code and similar
provisions of applicable state law ("1031 EXCHANGE"); provided that (a) neither
party shall be obligated to delay the Closing, and (b) neither party shall be
obligated to execute any note, contract, deed or other document not otherwise
expressly provided for in this Agreement providing for any personal liability,
and (c) neither party shall be obligated to take title to any property other
than the Property or incur additional expense for the benefit of the other
party. Each party shall indemnify and hold the other harmless against any
liability which arises or is claimed to have arisen on account of any exchange
proceeding which is initiated on behalf of the indemnifying party.
30. RISK OF LOSS.
30.1 If, prior to the Closing, the Property is damaged by fire, flood or
other casualty, or if any portion of the Property is condemned or taken by
eminent domain or condemnation or eminent domain is threatened, Purchaser may
elect to terminate this Agreement upon ten (10) days written notice to Seller,
in which event the Xxxxxxx Money and any interest earned on it, shall be
returned to Purchaser and this Agreement shall terminate.
The parties have each caused this Agreement to be executed on their behalf
as of the date set forth beneath their respective signatures below.
"PURCHASER"
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:/s/ [ILLEGIBLE]
--------------------------------
Title: President
-----------------------------
Date: April 1, 2004
------------------------------
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"SELLER"
ECKERD CORPORATION
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Vice President
Date: 3/18/04
------------------------------
"TITLE INSURER/ESCROW AGENT"
Title Insurer/Escrow Agent agrees to the terms of this Agreement in regards
to the escrow obligations and requirements of the Title Insurer/Escrow Agent,
and agrees to carry out such escrow obligations and requirements.
LAND AMERICA NATIONAL
COMMERCIAL SERVICES
/s/ Xxxxxx X. Xxxx
------------------------------------------
By: Xxxxxx X. Xxxx, VP National Accounts
Date:
--------------------------------
EXHIBITS ATTACHED:
Exhibit "A" Legal Description
Exhibit "B" Lease Agreement
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EXHIBIT "A"
LEGAL DESCRIPTION
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LEGAL DESCRIPTION
PROPERTY LOCATED AT THE NORTHWEST CORNER OF
U.S. 158 AND EIGHTH STREET
ATLANTIC TOWNSHIP, DARE COUNTY, NORTH CAROLINA
BEING all of that certain lot or parcel of land containing approximately 2.1
acres and being located in the Township of Atlantic, County of Dare, North
Carolina, and being more particularly described as follows:
BEGINNING at an iron rod set located in the intersection of the western margin
of the right-of-way of U.S. 158 and the northern margin of the right-of-way of
Eighth Street, said iron rod set also being located N. 19-07-58 W. 1424.08 feet
from an existing nail; thence from said point and place of BEGINNING with the
northern margin of the right-of-way of Eighth Street S. 70-30-00 W. 424.63 feet
to an existing iron pipe, passing through an existing concrete monument at 150
feet, another existing concrete monument at 300 feet; and an existing iron rod
at 350 feet; thence leaving the northern margin of the right-of-way of Eighth
Street N. 19-33-04 W. 214.48 feet to an iron rod set; thence N. 70-30-30 E.
443.59 feet to an iron rod set located in the western margin of the
right-of-way of U.S. 158; thence with the western margin of the right-of-way of
U.S. 158 S. 19-30-00 E. 250.00 feet to the point and place of BEGINNING.
EXHIBIT "A"
LEASE AGREEMENT
ECKERD CORPORATION
STORE NO. 3978
KILL DEVIL HILLS, NORTH CAROLINA
EXHIBIT "B"
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LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO. 3978
KILL DEVIL HILLS, NORTH CAROLINA
1. LEASED PREMISES...........................................................1
2. INITIAL TERM AND OPTION PERIODS...........................................1
3. RENT......................................................................2
4. INGRESS AND EGRESS........................................................2
5. EXCLUSIVE.................................................................3
6. LANDLORD'S REPRESENTATIONS AND WARRANTIES.................................3
7. LEASE SUBORDINATION AND NOTICES TO MORTGAGEES.............................3
8. EXTERIOR FACILITIES.......................................................4
9. SIGNS AND ANTENNAE........................................................4
10. COMPLIANCE WITH LAW AND REGULATIONS.......................................4
11. ENVIRONMENTAL COMPLIANCE..................................................4
12. MAINTENANCE AND REPAIRS...................................................6
13. REAL ESTATE TAXES.........................................................6
14. UTILITIES.................................................................7
15. LIABILITY INSURANCE AND INDEMNIFICATION...................................7
16. CASUALTY (PROPERTY) INSURANCE AND DAMAGE TO LEASED PREMISES...............8
17. WAIVER OF SUBROGATION.....................................................9
18. TENANT'S RIGHT TO MAKE CHANGES TO LEASED PREMISES........................10
19. ASSIGNMENT AND SUBLETTING................................................10
20. EMINENT DOMAIN...........................................................10
21. TENANT'S DEFAULT.........................................................11
22. RENT UNDER TENANT'S DEFAULT..............................................12
23. LANDLORD'S DEFAULT.......................................................12
24. FORCE MAJEURE............................................................13
25. SEVERABITLITY............................................................13
26. OBLIGATION OF SUCCESSORS.................................................13
i
LEASE AGREEMENT INDEX
ECKERD CORPORATION STORE NO. 3978
KILL DEVIL HILLS, NORTH CAROLINA
27. NOTICES..................................................................14
28. MISCELLANEOUS............................................................14
29. SHORT FORM LEASE.........................................................15
ii
Eckerd Corporation Store No.: 0000
Xxxx Xxxxx Xxxxx, XX
LEASE AGREEMENT
This Lease Agreement ("LEASE") is made this _______ day of _______________,
2004 between INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, or
its designee or nominee ("LANDLORD") and ECKERD CORPORATION, a Delaware
corporation ("TENANT"). In consideration of the mutual covenants and agreements
contained in this Lease, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, Landlord and Tenant agree as
follows:
1. LEASED PREMISES
1.1. Landlord leases to Tenant, and Tenant accepts from Landlord, those
certain premises consisting of land and a freestanding building
(with area inside walls of 13,824 square feet), as shown on the site
plan on the attached EXHIBIT "A", upon real property located at the
northwest corner of Highway 158 and Eighth Street, and situated in
the City of Kill Devil Hills, County of Dare, State of North
Carolina, and as legally described in the attached EXHIBIT "B"
("LEASED PREMISES").
1.2. Tenant shall be permitted to use the Leased Premises for the
operation of a drug store and/or for any other lawful purpose or
purposes, including, but not limited to, an Express Photo and/or
photo processing center, a postal substation or package mailing
center, and an optical center for the practice of opticianry and
optometry. Tenant may also, after obtaining all required licenses
and permits, sell alcoholic beverages for off-premises consumption.
Tenant has the right to discontinue all or any part of its business
operations (including, but not limited to, its pharmacy operations)
at the Leased Premises at any time, at Tenant's sole discretion and
without Landlord's approval or consent. Tenant agrees that with
respect to any recorded covenants, restrictions or agreements
applicable to the Leased Premises, this Lease is subject and
subordinate thereto, and Tenant shall observe, perform and comply
with and carry out the provisions thereof required therein to be
observed and performed by Landlord.
2. INITIAL TERM AND OPTION PERIODS
2.1. The initial term of this Lease shall commence concurrently with the
Rent Commencement Date ("LEASE COMMENCEMENT DATE") and shall end at
midnight twenty (20) years later ("LEASE TERMINATION DATE").
2.2. Landlord and Tenant agree, upon written request by either party, to
execute, acknowledge and deliver instruments to each other in
recordable form certifying the Lease Commencement Date and the Lease
Termination Date.
1
2.3. Tenant, if not in default beyond any applicable cure period, has the
option to renew this Lease for four (4) successive five (5) year
periods on the same terms and conditions contained in this Lease,
provided Tenant gives Landlord six (6) months notice of its election
to exercise an option prior to the end of the then-current term.
Should Tenant neglect to exercise an option on the applicable date,
Tenant's right to exercise its option shall not expire until fifteen
(15) days after written notice, by Landlord, of Tenant's failure to
exercise its option.
2.4. Tenant will deliver up and surrender to Landlord possession of the
Leased Premises upon the expiration or termination of this Lease in
good condition and repair (loss by casualty and ordinary wear and
decay excepted and except for any conditions which, under the
provisions of this Lease, Landlord is required to remedy).
3. RENT
3.1. Rent payable by Tenant pursuant to this Lease ("RENT") shall
commence on the date upon which Landlord acquires title to the
Leased Premises from Tenant ("RENT COMMENCEMENT DATE").
3.2. Tenant shall pay Landlord Rent during the initial Lease term in the
amount Three Hundred Two Thousand Nine Hundred Forty Nine and 96/100
Dollars ($302,949.96) per year, payable in equal monthly
installments of Twenty Five Thousand Two Hundred Forty Five and
83/100 Dollars ($25,245.83). Rent during each option period shall be
as follows:
For the first option period; $309,861.96 per year; $25,821.83 per month
For the second option period; $316,773.96 per year; $26,397.83 per month
For the third option period; $323,685.96 per year; $26,973.83 per month
For the fourth option period; $330,597.96 per year; $27,549.83 per month
3.3. All monthly payments of Rent shall be paid in advance on the first
day of each and every calendar month during the term of this Lease,
at Landlord's address set forth in this Lease. If the term shall
commence or end on a day other that the first day of a month, then
Rent shall be prorated for the balance of that month on a per diem
basis.
3.4. Landlord's Social Security Number or U.S. Taxpayer Identification
Number:____________________
3.5. Tenant shall pay the sales or use tax, if any, assessed against the
Rent it pays under this Lease directly to the taxing authority of
the state in which the Leased Premises are located.
4. INGRESS AND EGRESS
4.1. Landlord warrants that it will maintain for the term of this Lease
and any extension of it, ingress and egress facilities to public
highways in the number and the locations
2
depicted on EXHIBIT "A", subject to unavoidable temporary closings
or relocations necessitated by public authority or other
circumstances beyond Landlord's control.
5. EXCLUSIVE
5.1. Landlord agrees that it will not directly or indirectly lease, rent,
sell or otherwise permit any property in which it has any interest
(direct or indirect) located within one thousand (1,000) feet of any
exterior boundary of the Leased Premises, to be used as a drug store
or a business which sells or dispenses prescription drugs or for any
collateral use (such as, E.G., parking, drainage, or service
drives), in support of a drug store or a business which sells or
dispenses prescription drugs without the written permission of
Tenant. If the mortgagee of the Leased Premises becomes the
landlord, the provisions of this Section shall not apply so long as
such mortgagee remains the landlord.
6. LANDLORD'S REPRESENTATIONS AND WARRANTIES
6.1. Landlord has full right and title to execute and perform this Lease.
6.2. So long as this Lease is in force and effect and Tenant is not in
default hereunder, Landlord agrees that it will not permit the
disturbance of, nor interference with Tenant's quiet enjoyment of
the Leased Premises in accordance with the terms of this Lease.
Tenant acknowledges that the exercise of any repair or maintenance
function by a grantee of a utility easement encumbering the Leased
Premises will not constitute a breach of Landlord's warranty as set
forth in this Lease.
6.3. Landlord warrants and represents to Tenant that no brokerage
commissions have been charged to, or paid by, Tenant in relation to
this Lease to brokers in which Landlord has an ownership interest or
who are subsidiaries or affiliates of Landlord.
7. LEASE SUBORDINATION AND NOTICES TO MORTGAGEES
7.1. Tenant agrees to subordinate this Lease to the lien of any first
mortgage or blanket mortgage placed on the Leased Premises, provided
only that so long as this Lease is in full force and effect and
Tenant is not in default of this Lease, (a) Tenant's tenancy will
not be disturbed, nor will this Lease be affected by any default
under such mortgage; (b) the rights of Tenant under this Lease shall
expressly survive and shall not be cut off; and (c) this Lease
shall, in all respects, continue in full force and effect.
7.2. If Landlord is in full compliance with the provisions of this Lease,
Tenant will, upon demand and without cost to Tenant, execute and
deliver to Landlord Tenant's standard Subordination, Non-Disturbance
and Attornment Agreement ("SNDA") necessary to effectuate such
subordination and non-disturbance. A copy of the SNDA is attached as
EXHIBIT "C."
7.3. Upon Landlord's written request, any notices required or permitted
to be given to Landlord under this Lease shall also be given to any
mortgagee whose name and address has been provided by Landlord to
Tenant in writing. Such mortgagee shall have the right, but not the
obligation, to cure any default by Landlord within the same time
period as may be granted Landlord under any provision in this Lease.
3
8. EXTERIOR FACILITIES
8.1. Tenant acknowledges that the sidewalks, service drives, parking
aisles, driveways, streets and parking area have been constructed as
shown on EXHIBIT "A" ("EXTERIOR FACILITIES"), that there is adequate
water drainage and that all sidewalks are concrete and all service
drives, parking aisles, driveways, streets and parking areas have
been graded, leveled and paved with concrete or asphalt, clearly
marked with painted lines, and repainted as required. Landlord
agrees there shall be unobstructed use of sidewalks, driveways and
roadways for automotive and pedestrian traffic to and from the
Leased Premises and adjacent public streets and highways. Tenant
agrees that all of the Exterior Facilities, and any signs owned or
permitted by Landlord, have been constructed in a good and
workmanlike manner and will be maintained by Tenant, at its sole
cost and expense.
9. SIGNS AND ANTENNAE
9.1. Landlord agrees that Tenant shall have the right at its own cost and
expense to erect, maintain and replace signs on the Leased Premises
advertising its business and the services it provides. Any signs
erected by Tenant shall conform to the requirements of local
ordinances and shall be signs generally used by Tenant to advertise
its business from time to time, including, but not limited to, its
standard capsule sign.
9.2. Landlord shall not, without Tenant's written consent, utilize or
grant to others the right to utilize the exterior of the Leased
Premises, or the space above it, for sign display purposes.
9.3. If and to the extent permitted by the Legal Requirements (as
hereinafter defined), Tenant may install satellite
receiving/transmitting equipment or antennae on the roof of the
Leased Premises provided such installation does not penetrate the
roof or otherwise adversely affect the integrity of the roof
structure. Tenant agrees to indemnify and hold Landlord harmless
from and against any and all claims and demands arising from the
installation, removal or repair of such equipment, unless such
claims or demands are due to the negligence of Landlord, its agents,
employees or contractors.
10. COMPLIANCE WITH LAW AND REGULATIONS
10.1. Tenant agrees to comply with all laws, orders, rules, regulations
and requirements of any governmental body, relating to the use
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction by Tenant of any of the Leased Premises,
(collectively, the "LEGAL REQUIREMENTS") or alterations made by the
Tenant, and Tenant will pay all costs and expenses incidental to
such compliance.
11. ENVIRONMENTAL COMPLIANCE
11.1. For the purposes of this Lease, the term "ENVIRONMENTAL LAW" shall
mean any federal, state, or local law, statute, ordinance or
regulation pertaining to health, industrial hygiene, or the
environmental conditions on, under or about the Leased Premises,
including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from
time to time ("CERCLA"),
4
42 U.S.C. Sections 9601, ET SEQ., and the Resource Conservation and
Recovery Act of 1976, as amended from time to time ("RCRA"), 42
U.S.C. Sections 6901, ET SEQ.
11.2. For the purposes of this Lease, the term "HAZARDOUS SUBSTANCE" shall
mean, without limitation: (a) those substances included within the
definition of "hazardous substances", "hazardous materials", "toxic
substances", or "solid waste" in CERCLA, RCRA, and the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1801, ET SEQ., and
in the regulations promulgated pursuant to said laws; (b) those
substances defined as "hazardous WASTES" in any applicable state
statute and in the regulations promulgated pursuant to any such
statute; (c) those substances listed in the United States Department
of Transportation Table (49 CFR 172.101, as amended) or by the
United States Environmental Protection Agency (or any successor
agency) as hazardous substances; (d) such other substances,
materials and wastes which are or become regulated under applicable
local, state, or federal law, or which are classified as hazardous
or toxic under federal, state or local laws or regulations; and (e)
any material, waste or substance which is (i) petroleum (ii)
asbestos (iii) polychlorinatedbiphenyls (iv) designated as a
"HAZARDOUS SUBSTANCE" pursuant to Section 311 of the Clean Air Act,
33 U.S.C. Section 1251, ET SEQ., or listed pursuant to Section 307
of the Clean Air Act, (v) flammable explosive, or (vi) radioactive
materials.
11.3. Tenant shall not use, generate, manufacture, produce, store,
release, discharge or dispose of, on, under or about the Leased
Premises, or transport to or from the Leased Premises, any Hazardous
Substance, or allow any other person or entity to do so. Tenant
shall keep and maintain the Leased Premises in compliance with, and
shall not cause or permit the Leased Premises to be in violation of
any Environmental Law. Notwithstanding the foregoing, Tenant may use
and store in reasonable amounts and in accordance with applicable
laws such cleaning products, automotive products and other products
as are normally used, sold or stored in Tenant's drug stores from
time to time, including, without limitation, chemicals and materials
used in connection with photoprocessing.
11.4. Landlord and Tenant shall each give the other party prompt notice of
any of the following of which the party in question has actual
knowledge: (a) any proceeding or inquiry by any governmental
authority with respect to the presence of any Hazardous Substance on
the Leased Premises or the migration of such Hazardous Substance
from or to other property; (b) all claims made or threatened by any
third party against Tenant, Landlord or the Leased Premises relating
to any loss or injury resulting from any Hazardous Substance; and
(c) discovery of any occurrence or condition on any real property
adjoining or in the vicinity of the Leased Premises that could cause
the Leased Premises or any part of the Leased Premises to be subject
to any restrictions on the ownership, occupancy, transferability or
use of the Leased Premises under any Environmental Law or any
regulation adopted in accordance with any Environmental Law.
11.5. Tenant shall protect, defend, indemnify and hold harmless Landlord,
its directors, officers, partners, employees, agents, successors and
assigns from and against any and
5
all loss, penalties, fines, judgments, forfeitures, damage, cost,
expense or liability (including attorney's fees and costs) arising
out of Tenant's failure to comply with the terms of this Section.
11.6. Upon prior reasonable notice, Landlord shall have the right to
inspect Tenant's operations on the Leased Premises to ascertain
Tenant's compliance with the provisions of this Lease at any
reasonable time. Tenant shall also provide periodic certifications
to Landlord, upon request, that Tenant is in compliance with the
environmental restrictions contained in this Section of the Lease.
Landlord shall have the right, but not the obligation, to enter into
the Leased Premises and perform any obligation of Tenant under this
Lease of which Tenant is in default, including without limitation,
any remediation necessary due to the environmental impact of
Tenant's operations on the Leased Premises, without waiving or
reducing Tenant's liability for Tenant's default of this Section of
this Lease.
11.7. All of the terms and provisions of this Section of this Lease shall
survive the expiration or termination of this Lease for any reason
whatsoever.
12. MAINTENANCE AND REPAIRS
12.1. Tenant will keep the Leased Premises in good order and repair
(excepting, however, all repairs made necessary by Landlord's
negligence or default under the terms of this Lease).
12.2. Tenant's obligations under this Section shall include, without
limitation, maintaining in good operating condition (including
making all necessary repairs and replacements, foreseen or
unforeseen, to accomplish the same) all of the Leased Premises,
including bug not limited to the interior, exterior, roof and
structural members of the building on the Leased Premises, footings,
foundations, all elements of the Exterior Facilities, landscaping,
all heating, ventilation, air conditioning and other mechanical
equipment and systems (including replacement of the compressor and
other major components), sprinkler systems (including any testing of
the same) and any water, plumbing, sanitary sewer, storm sewer, gas,
cable, telephone or electrical lines or conduits in or on the Leased
Premises, and making all repairs required due to fire, casualty, or
the elements in order to keep and maintain the Leased Premises in
good order and repair.
12.3. Subject to Tenant's reasonable security requirements, Landlord may
at reasonable times and upon reasonable notice, inspect, alter or
repair the Leased Premises when necessary for its safety or
preservation.
13. REAL ESTATE TAXES
13.1 Landlord shall promptly deliver to Tenant all bills for ad valorem
charges and/or taxes for any easement or agreement maintained for
the benefit of any of the Leased Premises, all general and special
assessments, levies, and all other public charges and/or taxes
whether of a like or different nature, even if unforeseen or
extraordinary, imposed upon or assessed, prior to or during the Term
as a result of or arising in respect of the Leased Premises ,
including any "rent tax" imposed directly upon the Rent
6
(collectively, "TAXES") which are received by Landlord with respect
to the Leased Premises. Alternatively, Landlord has the right to
have the bills for such Taxes sent directly to Tenant from the
taxing authority. Tenant shall have the right during the term of
this Lease, at Tenant's expense, to appeal the amount of any Taxes
assessed against the Leased Premises. Landlord shall reasonably
cooperate with Tenant in such appeal efforts.
13.2 Provided the Tax bills are delivered to Tenant by Landlord in a
timely manner, or Tenant receives such Tax bills directly from the
taxing authority in a timely manner, Tenant agrees to pay all such
Taxes before delinquency and Landlord shall not be obligated to pay
any penalty for delinquent payment. Any payment due pursuant to this
Lease provision shall be prorated as of the termination or
expiration date of this Lease.
14. UTILITIES
14.1. Tenant shall pay, directly to the respective provider with no
surcharge paid to Landlord, for all sewerage and trash disposal
services, water, gas, heat, electric current and other utilities
consumed by it, in or upon the Leased Premises, at rates set by
local public utility as approved by public authority having
jurisdiction.
14.2. Notwithstanding the foregoing, in the event that Tenant is able to
purchase, acquire or otherwise obtain any or all utilities through
direct access or otherwise, as a result of the deregulation of the
utilities or as a result of the utility market providing open access
and customer choice through pilot programs, legislation, or
otherwise, Tenant shall have the option, at any time and from time
to time during the term of this Lease, to purchase its utilities
from any source and to elect the service provider, supplier, and
such supplier's distributor and/or transmitter for any or all
utilities servicing the Leased Premises provided that any such
agreement is terminable, at no cost to Landlord, effective as of the
termination or expiration of this Lease. In the event Tenant's
election necessitates new or additional lines and/or equipment,
Tenant shall provide the same at its sole cost and expense. Landlord
grants Tenant an easement for purposes of installing and maintaining
any such lines or equipment.
15. LIABILITY INSURANCE AND INDEMNIFICATION
15.1. Tenant, in its name and at its own expense, shall procure and
continue in force, commercial general liability insurance against
damages occurring in the Leased Premises during the term or any
extensions of this Lease. Such insurance shall be in an amount not
less than Two Million and No/100 Dollars ($2,000,000.00) general
aggregate limit for bodily injury and property damage. A certificate
of such insurance shall be provided to Landlord not later than the
Lease Commencement Date, and thereafter upon written request. All
insurance required under this Section 15 shall be written by
companies rated A-VIII or higher. Such policy shall state that it
may not be canceled or modified prior to giving Landlord at least
thirty (30) days prior written notice.
15.2. Should Tenant desire to carry all or part of the insurance coverage
described in this Section through self insurance and/or under a
"blanket" policy or policies covering
7
other properties of Tenant, its parent corporation, its
subsidiaries, or controlling or affiliated corporations, or of any
assignee of this Lease, such methods of insurance shall be deemed
compliance with Tenant's obligations under this Section, as to both
original coverage and renewals. During such time as no event of
default is outstanding and the tangible net worth of Tenant is not
less than Fifty Million and No/100 Dollars ($50,000,000.00) as
determined according to generally accepted accounting principles
consistently applied, Tenant may self insure the coverage referred
to in Sections 15.1 and 16.1 provided that to do so does not violate
any legal requirements. Such self-insurance shall then be deemed to
be compliant with Tenant's obligations under Sections 15.1 and 16.1,
as to both original coverage and renewals.
15.3. Landlord agrees to defend, indemnify and save harmless Tenant from
and against any and all claims and demands whether from injury to
person, loss of life, or damage to property, occurring within the
Leased Premises as may result from any injury or damage caused by
acts or omissions of Landlord.
15.4. Tenant agrees to defend, indemnify and save harmless Landlord from
and against any and all claims and demands whether from injury to
person, loss of life, or damage to property, occurring within the
Leased Premises, excepting, however, such claims or demands as may
result from any injury or damage caused by acts or omissions of
Landlord.
16. CASUALTY (PROPERTY) INSURANCE AND DAMAGE TO LEASED PREMISES
16.1. Tenant shall at all times during the term of this Lease and any
Lease renewals maintain "ALL RISK" insurance on the Leased Premises
insuring against all risks of physical loss or damage to property in
the amount of one hundred percent (100%) of the full replacement
cost of the improvements located on the Leased Premises. A
certificate of such insurance shall be provided to Landlord not
later than the Lease Commencement Date and thereafter annually not
less than thirty (30) days prior to the expiration date of such
coverage. Whenever Tenant shall be engaged in making any
alternation, repairs or construction work of any kind (collectively,
the "WORK") Tenant shall obtain, or cause its Contractor to obtain
completed value builder's risk insurance of the estimated cost of
the Work exceeds $250,000.00 and Tenant or its Contractor shall
obtain worker's compensation insurance or other adequate insurance
coverage covering all persons involved in the Work, whether by
Tenant, its contractors or subcontractors and with respect to when
death or bodily injury claims could be asserted against Landlord.
Landlord and any mortgagee named by Landlord from time to time shall
be named as loss payees on all policies of insurance required by
this Section 16. Such policies shall state that it may not be
canceled prior to giving Landlord and mortgagee, if any, at least
ten (10) days prior written notice in the event of non-payment of
premium, and thirty (30) days prior written notice in all other
instances. All insurance required under this Section 16 shall be
written by companies rated A-VIII or higher. The proceeds from any
such insurance shall be utilized to repair and rebuild the Leased
Premises as provided in this Section. Any deficiency between the
cost of repair and rebuilding, and the insurance proceeds, shall be
paid by Tenant.
8
16.2. Except as otherwise provided in this Section, in the event the
Leased Premises or a portion of the Leased Premises shall be
partially damaged or totally destroyed by fire or other disaster,
Tenant shall promptly cause the Leased Premises to be restored as
nearly as possible to their value and condition and character
immediately prior to such event and subject to all requirements of
Legal Requirements, subject to such changes as Tenant may reasonably
require and Landlord reasonably approves prior to commencement of
reconstruction. Due allowance shall be made for (a) reasonable time
necessary (not to exceed one hundred eighty (180) days) for Tenant
to adjust the loss with insurance companies, and (b) delay
occasioned by strikes, lockouts, and conditions beyond the
reasonable control of Tenant, provided such delay does not exceed
six (6) months without Landlord's consent.
16.3. Should Tenant desire to carry all or part of the insurance coverage
described in this Section through self insurance and/or under a
"blanket" policy or policies covering other properties of Tenant,
its parent corporation, its subsidiaries, or controlling or
affiliated corporations, or of any assignee of this Lease, such
method of insurance shall be deemed compliance with Tenant's
obligations under this Section, as to both original coverage and
renewals.
16.4. Should the Leased Premises, or a portion of the Leased Premises, be
rendered untenantable by fire or other disaster, Rent shall not
xxxxx. Notwithstanding anything to the contrary contained in this
Lease, if such damage occurs during the last two (2) years of the
term of this Lease and the cost of restoration of the Leased
Premises would be more than one-third (1/3) of the replacement value
of the Leased Premises, as certified by a registered architect,
Landlord and Tenant shall each have the right to terminate this
Lease by written notice to the other given within thirty (30) days
after such occurrence. If this Lease is so terminated, all insurance
proceeds attributable to the Leased Premises shall be paid to
Landlord and Landlord alone shall have the right to settle any claim
with the insurance carrier. If Landlord elects to terminate this
Lease, such termination shall not be effective if Tenant elects
(within ten (10) days after receipt of Landlord's notice of
termination) to renew this Lease by exercising any remaining options
for extending the term of this Lease. If, at the date of the fire or
other disaster, Tenant shall have paid any Rent in advance, Tenant
shall be entitled to a proportionate refund.
16.5. Provided this Lease is not terminated as set forth in this Section,
the term of this Lease shall be automatically extended for a period
of time equal to the period of time the Leased Premises are totally
untenantable due to fire or other disaster.
17. WAIVER OF SUBROGATION
17.1. Tenant agrees not to assign to any insurance company any right or
cause of action for damage to the property of Tenant located in the
Leased Premises which Tenant now has or may subsequently acquire
against Landlord during the term of this Lease, and expressly waives
all rights of recovery for such damage.
17.2. Landlord agrees not to assign to any insurance company any right or
cause of action for damages to the property of Landlord located in
the Leased Premises which Landlord
9
now has or may subsequently acquire against Tenant during the term
of this Lease, and expressly waives all rights of recovery from
such damage.
17.3. It is specifically understood this Section shall only apply (a)
where such insurance as described in this Section allows the insured
to enter into an agreement waiving recovery rights, and (b) to the
extent insurance proceeds are recovered.
18. TENANT'S RIGHT TO MAKE CHANGES TO LEASED PREMISES
18.1. Tenant, at its own expense during the term of this Lease, may make
any alterations or additions to the Leased Premises which it may
deem necessary, except changes which would impair the structural
integrity of the Leased Premises, or result, after giving
consideration to the completed alteration, in a diminution in value
of the Leased Premises (unless approved by Landlord). Tenant shall
make all changes in accordance with applicable governmental
regulations. All salvage from such work shall belong to Tenant. All
permanent improvements shall belong to Landlord. Tenant shall
promptly pay all costs and expenses of any such alteration, and
shall discharge all liens filed against the Leased Premises arising
out of the same.
18.2. All trade fixtures and equipment and other personal property owned
by Tenant and installed or placed by it in the Leased Premises may
be removed by Tenant at any time during the term of the Lease.
Provided Tenant gives Landlord prior reasonable notice, such removal
may also take place within fifteen (15) days after the expiration
term of the Lease. Tenant agrees to repair any damage to the Leased
Premises occasioned by such removal.
19. ASSIGNMENT AND SUBLETTING
19.1. Tenant shall have the right to assign this Lease or sublet the
Leased Premises at any time without Landlord's consent or approval.
Tenant shall give notice of any and all assignments and subleases to
Landlord, together with a copy of the applicable instrument.
19.2. Unless agreed otherwise by the parties, the assignment of this Lease
or subletting of the Leased Premises shall not relieve Tenant of its
obligations under this Lease.
20. EMINENT DOMAIN
20.1. If the entire building on the Leased Premises shall be taken by
reason of condemnation or under eminent domain proceedings, Landlord
or Tenant may terminate this Lease as of the date when possession of
the building is taken. If a portion of the building shall be taken
under eminent domain or by reason of condemnation and if in the
opinion of Tenant, reasonably exercised, the remainder of the
building is no longer suitable for Tenant's business, this Lease, at
Tenant's option, to be exercised by notice to Landlord within sixty
(60) days of such taking, shall terminate. In such event, any
unearned Rent paid or credited in advance shall be refunded to
Tenant. If this Lease is not so terminated, Landlord shall proceed
promptly and with due diligence, to restore the building. Until so
restored, Rent shall xxxxx to the extent that Tenant shall not be
able to conduct business in a reasonable manner, and Rent for the
remaining portion of the
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term of this Lease shall be proportionately reduced (based on the
reduced square foot floor area of the building).
20.2. In the event any part of the parking areas of the Leased Premises
shall be taken by reason of condemnation or under eminent domain
proceedings, or if as a result of any taking of the Leased Premises
or other property subject to an easement benefiting the Leased
Premises any driveway or curb cut access to the Leased Premises will
be closed, and if in the opinion of Tenant, reasonably exercised,
the Leased Premises are no longer suitable for Tenant's business,
this Lease, at Tenant's option by notice to Landlord within sixty
(60) days of such taking, shall terminate. If this Lease is not so
terminated, Landlord, at Landlord's expense, shall proceed promptly
and with due diligence to restore the remaining Leased Premises and
parking areas to a proper and usable condition. However, Tenant
shall not have the right to terminate this Lease if Landlord
provides alternate parking areas which are reasonably acceptable to
Tenant. Until restored, Rent shall xxxxx to the extent that Tenant
shall not be able to conduct business at the Leased Premises in a
reasonable manner, and Rent for the remaining portion of the term of
this Lease shall be proportionally reduced (based on the effect such
taking has on Tenant's business at the Leased Premises).
20.3. For purposes of this Section, the term "CONDEMNATION OR UNDER
EMINENT DOMAIN PROCEEDINGS" shall include conveyances and grants
made in anticipation of or in lieu of such proceedings.
21. TENANT'S DEFAULT
21.1. Each of the following shall constitute a default by Tenant and a
breach of this Lease:
21.1.1. Any of the following which shall result in final adjudication
against Tenant:
21.1.1.1. The filing of a bankruptcy petition by or against
Tenant for adjudication, reorganization or arrangement;
or
21.1.1.2. Any proceedings for dissolution or liquidation of
Tenant; or
21.1.1.3. Any assignment for the benefit of Tenant's creditors.
21.1.2. Failure to:
21.1.2.1. Pay Rent for a period of fifteen (15) days after
receipt of written notice from Landlord to Tenant; or
21.1.2.2. Perform any other covenant or condition of this Lease
for a period of thirty (30) days after receipt of
written notice from Landlord to Tenant.
21.2. In the event of any default of Tenant, in addition to any other
remedies available to Landlord by law or in equity, Landlord may
serve written notice upon Tenant that Landlord elects to terminate
this Lease upon a specified date not less than thirty (30) days
after the date of receipt of such notice. This Lease shall expire on
the date so specified as if that date had been originally fixed as
the expiration date of the term granted in this Lease unless steps
have, in good faith, been commenced promptly by Tenant to cure the
default, and are prosecuted to completion with diligence and
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continuity. If the matter in question shall involve building
construction, and if Tenant shall be subject to unavoidable delay by
conditions beyond the control of Tenant, Tenant's time to perform
shall be extended for a period commensurate with such delay,
provided such delay does not exceed six (6) months without
Landlord's consent.
21.3. Upon termination of this Lease for Tenant's default, Landlord or its
agents may immediately or at any time after the termination,
re-enter and resume possession of the Leased Premises and remove all
persons and property from the Leased Premises, by a suitable action
or proceeding at law, without being liable for any damages, subject,
however, to Tenant's right to remove trade fixtures and personal
property, after notice to Landlord, within fifteen (15) days after
termination of the Lease. No re-entry by Landlord shall be deemed an
acceptance or a surrender of this Lease. Landlord may then, in its
own behalf, relet any portion of the Leased Premises for any period
of the remaining term for any reasonable sum to any reasonable
tenant for any reasonable use or purpose. In connection with any
reletting, Landlord may make any changes to the Leased Premises and
may grant any concessions of free rent as may be reasonably
appropriate or helpful in effecting such lease.
22. RENT UNDER TENANT'S DEFAULT
22.1. Notwithstanding anything to the contrary in this Lease, the Landlord
shall not be entitled to receive an acceleration of Rent.
Additionally, in the event this Lease shall be terminated for
Tenant's default, Landlord's sole remedy shall be to recover from
Tenant an amount equal to the amount of Rent reserved under this
Lease for the remainder of the initial term or the option period
then in effect, as the case may be, less the net rent, if any,
collected by Landlord on reletting the Leased Premises, which shall
be due and payable, by Tenant to Landlord, on the several days on
which the Rent reserved in this Lease would have become due and
payable. Net rent collected on reletting by Landlord shall be
computed by deducting from the gross rents collected all actual and
reasonable expenses incurred by Landlord in connection with the
reletting of the Leased Premises, including broker's commission and
the cost of repairing, renovating or remodeling the Leased Premises,
but not including the cost of performing any covenant required to be
performed by Landlord.
23. LANDLORD'S DEFAULT
23.1. Each of the following shall constitute a default by Landlord and a
breach of this Lease:
23.1.1 Subject to the terms of the Lease, Landlord shall neglect to
pay when due any taxes or any obligations on any mortgage or encumbrance
affecting title to the Leased Premises (to which this Lease shall be
subordinate); or
23.1.2 Landlord shall fail to make any other payment which Landlord is
obligated to pay under this Lease, and such default continues uncured for
fifteen (15) days after written notice from Tenant to Landlord; or
23.1.3 In the event Landlord shall fail to perform any other
obligation specified in this Lease for a period of thirty (30) days after
receipt of written notice from Tenant to Landlord,
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unless steps have been, in good faith, commenced promptly by Landlord to rectify
the default and Landlord pursues the same to completion with diligence and
continuity.
23.2. In the event of Landlord's default, in addition to any other
remedies available to Tenant by law, Tenant may, but shall not be required to,
cure such default, and do all necessary work and make all necessary payments on
behalf of and at the expense of Landlord. In such event, Landlord shall, on
demand, pay Tenant the amount so paid by Tenant in curing any such default. If
not paid within thirty (30) days after written notice from Tenant to Landlord,
Tenant may withhold Rent and other payments due to Landlord and apply the Rent
or other payments to the payment of the indebtedness. Withholding of Rent or
other payments as provided in this Section or elsewhere in this Lease shall not
constitute a default by Tenant in the payment of Rent or other payments unless
Tenant shall fail to pay such amount withheld within thirty (30) days after a
final adjudication that such amount withheld is owing to Landlord.
Notwithstanding anything to the contrary contained in this Lease, if any
Landlord default as is described in this Section continues uncured for forty
five (45) days after initial written notice by Tenant, Tenant may terminate this
Lease at any time.
24. FORCE MAJEURE
24.1. Anything in this Lease to the contrary notwithstanding, neither
Landlord nor Tenant shall be in default of the performance of any
provisions of this Lease to the extent such performance is delayed
or prevented by strike, war, act of God, or other cause beyond the
control of the party seeking to excuse such performance; provided,
however, no such excusable delay shall exceed six (6) months.
25. SEVERABILITY
25.1. If any term or provision of this Lease (or the application of any
term of provision of this Lease to any person or circumstances)
shall to any extent be invalid or unenforceable, the remainder of
this Lease (or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable) shall not be affected and each term and provision of
this Lease shall be valid and enforceable to the fullest extent
permitted by law.
26. OBLIGATION OF SUCCESSORS
26.1. All of the provisions of this Lease shall bind and inure to the
benefit of Landlord and Tenant, and their respective heirs, legal
representatives, successors and assigns. All covenants, conditions
and agreements contained in this Lease shall be construed as
covenants running with the land.
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27. NOTICES
27.1. All notices and Rent shall be sent to Landlord as follows, until
Tenant is notified by Landlord otherwise in writing:
To Landlord at: INLAND REAL ESTATE ACQUISITIONS, INC.
C/O G. Xxxxxx Xxxxxxx, Vice Chairman
0000 Xxxxxxxxxxx Xx
Xxx Xxxxx, XX 00000
(000) 000-0000 Tel
With a copy to: Xxxxx Xxxx, Esq.
The Inland Real Estate Group, Inc.
Law Department
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
(000) 000-0000 Tel
27.2. All notices shall be sent to Tenant as follows, until Landlord is
notified by Tenant otherwise in writing:
To Tenant at: Eckerd Corporation
Store No. 3978
0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Vice President, Real Estate
(000) 000-0000 Tel
with copies to: Eckerd Corporation and Eckerd Corporation
Store No. 3978 Store No. 3978
0000 Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxx, Xxxxxxx 00000 Xxxxx, Xxxxxxx 00000
Attn: Regional Real Estate Director Attn: Legal Department
(000) 000-0000 Tel Mailstop: CW3W
(000) 000-0000 Tel
27.3. Notices to each party shall be sent by certified mail, return
receipt requested, or by bonded overnight courier, and shall be
effective upon receipt or refusal to accept delivery. Notices
delivered to the Leased Premises shall not constitute notice to
Tenant under the terms of this Lease.
28. MISCELLANEOUS
28.1. The captions in this Lease are for convenience only. They are not a
part of this Lease and do not in any way limit or amplify the terms
and provisions of this Lease.
28.2. This Lease shall be construed in accordance with applicable law of
the state in which the Leased Premises are located.
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28.3. Tenant agrees from time to time but no more often than twice per
Lease year upon not less than thirty (30) days' prior written
request by Landlord, to execute and deliver to Landlord in a
reasonably timely manner Tenant's standard written Estoppel
Certificate stating (i) whether this Lease has been modified or
amended and, if so, identifying any such modification or amendment;
(ii) whether Rent and other charges have been paid more than thirty
(30) days in advance of the date when due and, if so, the date to
which they have been paid in advance; and (iii) whether to the best
of Tenant's knowledge, any uncured default exists on the part of
Landlord and, if so, specifying the nature of such default.
28.4. One or more waivers of any covenant, term or condition of this Lease
by either party shall not be construed as a waiver of a subsequent
breach of the same or any other covenant, term or condition. Any
delay or omission by either party to seek a remedy for any breach of
this Lease or to exercise a right accruing to such party by reason
of such breach shall not be deemed a waiver by such party of its
remedies or rights with respect to such breach. The consent or
approval by either party to or of any act by the other party
requiring such consent or approval shall not be deemed to waive or
render unnecessary consent to or approval of any similar act.
28.5. The parties acknowledge that the parties and their counsel have
reviewed and revised this Lease and that the normal rule of
construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the
interpretation of this Lease, or any part of it, or any exhibits or
amendments or agreements supplementary to this Lease.
28.6. All of the provisions hereof shall bind and inure to the benefit of
the parties hereto, their respective heirs, legal representatives,
successors and assigns, and all covenants, conditions and agreements
contained herein shall be construed as covenants running with the
land.
29. SHORT FORM LEASE
29.1. The parties agree that a short form version of this Lease will be
executed for the purpose of recording. The short form lease shall be
recorded before any mortgage placed on the Leased Premises or any
part of the Leased Premises. Landlord shall pay for any and all real
estate transfer fees assessed in connection with this Lease or
assessed in connection with the recording of the short form version
of this Lease.
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SIGNATURE PAGE FOR LEASE AGREEMENT BETWEEN
INLAND REAL ESTATE ACQUISTIONS, INC. AS LANDLORD, AND
ECKERD CORPORATION, AS TENANT
ECKERD STORE NO. 3978
KILL DEVIL HILLS, NORTH CAROLINA
IN WITNESS WHEREOF, the parties have caused this Lease to be executed by
their respective duly authorized representatives as of the date set forth in the
initial paragraph of this Lease.
"LANDLORD"
WITNESSES as to Landlord: INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois
corporation
Printed Name: By:
----------------------- --------------------------
Name:
------------------------
------------------------------------ Title:
Printed Name: -----------------------
-----------------------
"TENANT"
WITNESSES as to Tenant: ECKERD CORPORATION, a
Delaware corporation
------------------------------------
Printed Name:
----------------------- By:
---------------------------------
Xxxxx X. Xxxxxx, Vice President
------------------------------------
Printed Name:
-----------------------
EXHIBITS ATTACHED:
Exhibit "A" Site Plan
Exhibit "B" Legal Description
Exhibit "C" Subordination, Non-Disturbance and Attornment Agreement
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