Exhibit 10.131
POST CLOSING AGREEMENT
THIS POST CLOSING AGREEMENT (this "Agreement") is made and entered into as
of the day _____ of April, 2004, by and between INLAND WESTERN CHARLESTON NORTH
RIVERS, L.L.C., a Delaware limited liability company ("Purchaser"), and SEMBLER
FAMILY PARTNERSHIP #26, LTD., a Florida limited partnership ("Seller"), in
connection with the acquisition by Purchaser of that certain property commonly
known as Xxxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx (the
"Property").
WHEREAS, Purchaser is inquiring the Property from Seller (the
"Transaction").
WHEREAS, in order to proceed with and consummate such acquisition and as a
condition to closing the Transaction, Purchaser requires that Seller agree to
the obligations set forth below, which are to be performed after such closing.
NOW, THEREFORE, for good and valuable consideration including the mutual
promises contained herein, the parties hereto agree as follows:
1. WARRANTIES. Seller's right, title and interest in, to and under the
warranties set forth on Exhibit A attached hereto and nude a part hereof
(individually, a "Warranty", and collectively, the "Warranties") were not
assigned to Purchaser at the closing of the Transaction because such Warranties
may not be assigned or transferred without the prior consent of the Warranty
issuer. From and after the date of this Agreement, Seller shall use commercially
reasonable efforts to obtain the aforementioned consents (upon the receipt of
which Seller shall assign such Warranty to Purchaser) or have the Warranties
reissued in the name of Purchaser. Seller shall be responsible for the payment
of any and all fees and costs in connection with obtaining any such consents or
the re-issuance of any of the Warranties. Seller shall, until the first to occur
of (i) the expiration of an applicable Warranty and (ii) the date that the
applicable Warranty is assigned to Purchaser (with any and all required
consents) or reissued in the name of Purchaser, cooperate with Purchaser, at no
cost to Seller, with respect to the enforcement of the terms and provisions of,
and any and all claims under, any Warranty.
2. SEWER EXTENSION CONTRACT. Seller is a party to that certain Contract
dated June 16, 2003 (the "Extension Contract"), by and among, Seller, the North
Charleston Sewer District (the "District") and Target Corporation ("Target").
Purchaser requires that all of Seller's right, title and interest in, to and
under the Extension Contract be assigned to Purchaser. However, the Extension
Contract provides that no party thereto may assign the Extension, Contract or
any right thereunder without the prior written consent of the other parties to
the Extension Contract. Accordingly, from and after the date of this Agreement,
Seller shall use commercially reasonable efforts to obtain the consents of both
the District and Target to Seller's assignment of its right, title and interest
in, to and under the Extension Contract (upon the receipt of which Seller shall
assign the Extension Contract to Purchaser). Seller shall be responsible for the
payment of any and all fees and costs in connection with obtaining any such
consents. Seller shall, until the first to occur of (i) the expiration of the
Extension Contract and (ii) the date that the Extension Contract is assigned to
Purchaser (with any and all required consents), cooperate with Purchaser, at no
cost to Seller, with respect to the enforcement of the terms and provisions of
the Extension Contract. The assignment of the Extension Contract shall contain
the following indemnities: (a) Seller will indemnify, hold harmless and defend
Purchaser from and against all claims, damages, losses, liabilities, costs and
expenses (including but not limited to reasonable attorneys' fees and expenses)
arising out of any failure by Seller to perform or observe the obligations,
covenants, terms and conditions of or under the Extension Contract, to the
extent arising prior to the date
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of this Agreement; and (b) Purchaser will indemnify, hold harmless and defend
Seller from and against all claims, damages, losses, liabilities, costs and
expenses (including but not limited to reasonable attorneys' fees and expenses)
arising out of any failure of Purchaser to perform or observe the obligations,
duties, covenants, terms and conditions to be performed by Seller under the
Extension Contract, to the extent arising from and after the date of this
Agreement.
3. CERTIFICATES OF OCCUPANCY. Within ten (10) days after the date of this
Agreement, Seller shall, at its cost, deliver to Purchaser copies of final,
unconditional certificates of occupancy relating to the spaces leased by the
following tenants at the Property: (a) Xxxx Stores, Inc.; (b) Xxxxxxx Golf, Inc.
(Pro Golf); (c) Carolina Eyes, Inc. (Pearl Vision); and (d) Palmetto Food Group
Charleston III, LLC (Just Fresh). Within thirty (30) days after the date of this
Agreement, Seller shall, at its cost, deliver to Purchaser copies of final,
unconditional certificates of occupancy relating to the spaces leased by JCD,
Inc. (Tobacco Shop) at the Property.
4. WARRANTIES. Within ten (10) days after the date of this Agreement,
Seller shall deliver to Purchaser the final construction close-out manual
relating to the space and building leased by Bed, Bath & Beyond, which close-out
manual shall include copies of any and all warranties relating thereto.
5. OEA ESTOPPEL CERTIFICATES. For a period of thirty (30) days after the
date of this Agreement, Seller shall reasonably cooperate with Purchaser's
efforts, at Purchaser's cost, in obtaining estoppel certificates from all
parties bound by that certain Operation and Easement Agreement, dated as of
November 14, 2002, and recorded with the RMC Office for Charleston County in
Book E426, Page 686, as amended by First Amendment to Operation and Easement
Agreement, dated as of March 24, 2003, and recorded with the RMC Office for
Charleston County in Book T442, Page 419 (collectively, the "OEA"). Seller
represents to Purchaser that Seller previously has forwarded an estoppel
certificate relating to the OEA to all parties to the OEA.
6. COLD STONE CREAMERY AND SUPER NAILS. Seller acknowledges that Seller has
agreed to reimburse each of the tenants under the Cold Stone Creamery (Cold
Stone Creamery Leasing Company Inc.) and Super Nails (Xxxx X. Xxxxxx) leases for
the cost of the installation by such tenants in their respective leased premises
of a sprinkler system (the "Sprinkler System Reimbursement"). Cold Stone
Creamery Leasing Company Inc., raised such Sprinkler System Reimbursement in the
tenant estoppel certificate that it delivered with respect to the Transaction.
Seller estimates that the amount of the Sprinkler System Reimbursement to which
each aforementioned tenant is entitled is three thousand and no/100 dollars
($3000.00) (the "Estimate"). With respect to the Sprinkler System Reimbursement,
at the closing of the Transaction, Purchaser received a credit against the
purchase price for the Property in an amount equal to six thousand and no/100
dollars; ($6,000.00). Seller and Purchaser shall reasonably cooperate with each
other in resolving any and all issues in regards to the Sprinkler System
Reimbursement with respect to each of the aforementioned tenants. Purchaser in
all events shall have the right to settle, all such issues with each tenant in
an amount not to exceed the Estimate (with respect to each tenant). If, with
respect to either or both of the aforementioned tenants, the final resolution of
the amount of the Sprinkler System Reimbursement shall exceed the Estimate, then
Seller shall pay such excess to the applicable tenant. If, with respect to
either or both of the aforementioned tenants, the final resolution of the amount
of the Sprinkler System Reimbursement shall be less than the Estimate, then
Purchaser shall refund such difference to Seller.
7. XXXX DRESS FOR LESS AND BED, BATH & BEYOND.
(a) Within thirty (30) days of the date of this Agreement, and Subject
to Purchaser's prior approval, which shall not be unreasonably withheld, Seller
will agree in writing (and Purchaser will execute said agreement as "Landlord"
upon request) with Xxxx Stores, Inc. ("Ross"), and Bed, Bath & Beyond, Inc.
("BBB") concerning the annual Minimum Rent (as defined in the respective leases)
payable by Ross and BBB (the "Adjusted Rent"). To the extent that such Adjusted
Rent is lower than the Minimum Rent payable by Ross and BBB under their
respective leases, the annual rent difference will be
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multiplied by ninety-six percent (96%) and divided by seven and six tenths
percent (7.6%), and Escrow Agent (as hereinafter defined) shall pay such amount
out of the Escrow Funds (as hereinafter defined) to Purchaser within fifteen
(15) days thereafter. To the extent that such Adjusted Rent is higher than the
Minimum Rent payable by Ross and BBB under their respective leases, the annual
rent difference will be multiplied by ninety-six percent (96%) and divided by
seven and six tenths percent (7.6%), and Purchaser shall pay such amount to
Seller within fifteen (15) days thereafter.
(b) The proration of expenses (as defined and determined in accordance
with the terms and provisions of that certain Purchase and Sale Agreement by and
between Purchaser and Seller dated April 12, 2004, as amended) for all common
area maintenance expenses, real estate taxes and insurance premiums relating to
the Property shall be adjusted (the "Adjusted Prorations") to reflect the change
in square footage as determined in accordance with the terms of paragraph 7(a).
To the extent that Seller is liable to Purchaser for expenses under the Adjusted
Prorations, Seller will pay such amount to Purchaser within fifteen (15) days
thereafter. To the extent that Purchaser is liable to Seller for expenses under
the Adjusted Prorations, Purchaser will pay such amount to Seller within fifteen
(15) days thereafter.
(c) Concurrently with the execution of this Agreement, Seller shall
deposit the sum of One Hundred Nineteen Thousand Two Hundred Ninety-Three and
No/100 Dollars ($119,293.00) (the "Escrow Funds") with Chicago Title Insurance
Company, whose address is 000 X. Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, Attn: Xxxxx
Xxxxxx (the "Escrow Agent"). After any portion of the Escrow Funds is
distributed in accordance with the provisions of paragraph 7(a) of this
Agreement, the remainder of the Escrow Funds shall be returned to Seller. In the
event that Seller obtains the written agreements with Ross and BBB as required
by paragraph 7(a) of this Agreement and no payment is due to Purchaser under the
terms and provisions of paragraph 7(a) of this Agreement, Purchaser shall
execute a written correspondence to Escrow Agent stating that none of the Escrow
Funds is due to Purchaser, and Escrow Agent shall return the Escrow Funds to
Seller within three (3) days of receipt of such letter from Purchaser.
(d) The Escrow Agent is acting as a stakeholder only with respect to
the Escrow Funds. If there is any dispute as to whether the Escrow Agent is
obligated to deliver the Escrow Funds or as to whom the Escrow Funds are to be
delivered, the Escrow Agent may refuse to make any delivery, and may continue to
hold the Escrow Funds until receipt of an authorization in writing, signed by
both Seller and Purchaser, directing the delivery of the Escrow Funds, or, in
the absence of authorization, the Escrow Agent may hold the Escrow Funds until a
final determination of the rights of the parties in an appropriate judicial
proceeding. If such written authorization is not given or a proceeding for such
determination is not begun within sixty (60) days of the date of this Agreement,
the Escrow Agent may bring an appropriate action or proceeding for leave to
deposit the Escrow Funds in a court of competent jurisdiction pending such
determination. The Escrow Agent shall be reimbursed for all costs and expenses
of such action or proceeding, including, without limitation, reasonable
attorneys' fees and disbursements, by the party determined not to be entitled to
the Escrow Funds. Upon delivery of the Escrow Funds in the manner herein
provided, the Escrow Agent shall have no further liability or obligation
hereunder.
8. FURTHER ASSURANCES. Seller and Purchaser agree to cooperate with each
other following the closing to confirm any matter and execute any document
reasonably required by the other party in furthering of the closing.
9. MISCELLANEOUS. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of South Carolina. The invalidity
or unenforceability of any provision of this Agreement shall not affect, modify
or impair the validity and enforceability of all other provisions of this
Agreement. This Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their representatives, heirs, legatees, successors, and
assigns; provided, however, that Seller shall have no right whatsoever to assign
its interest under this Agreement and any such attempted assignment
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shall automatically be null and void and of no force and effect, and shall be
deemed a breach by Seller of its obligations hereunder. No failure or delay by
Purchaser in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder. No change, amendment or modification of this
Agreement shall be binding or enforceable unless in writing and executed by the
party to be bound thereby. The covenants, agreements and indemnification
provisions contained in this Agreement shall be enforceable notwithstanding the
closing of the Transaction. In the event of litigation with respect to any
portions of this Agreement the prevailing party will be entitled to collect all
reasonable legal fees incurred in connection with such litigation from the
non-prevailing party. Purchaser shall have all remedies available at law and in
equity on account of a default by Seller under this Agreement. Time is of the
essence of this Agreement and the terms hereof. This Agreement may be signed in
counterparts.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective as of the first date written above.
SELLER:
SEMBLER FAMILY PARTNERSHIP #26, LTD.
By: SEMBLER RETAIL, INC., its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------
Its: Sr. Vice President
--------------------------
PURCHASER:
INLAND WESTERN CHARLESTON NORTH RIVERS, L.L.C.
By: INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., its sole member
By:
---------------------------------
Name:
-------------------------
Its:
--------------------------
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EXHIBIT A
WARRANTIES
BUILDING B
Roof - Serial No. 46228 JPS Elastronics Corp. Yes
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK # 273264
Faucets, Showers, Sinks, Etc. Florestone Yes
BUILDING C
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK # 25901 and
#245745
Faucets, Showers, Sinks, Etc. Florestone Yes
BUILDING E
Roof - Serial No. 46228 JPS Elastronics Corp. Yes
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK #273264
Faucets, Showers, Sinks, Etc. Florestone Yes
BUILDING G
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK #294818 and
#294825
Faucets, Showers, Sinks, Etc. Florestone Yes
OFFICE
DEPOT Roof - Serial No. 46228 JPS Elastronics Corp. Yes
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK #273264
Plumbed Water Cooler Elkay Sales, Inc. Yes
Faucets, Showers, Sinks, Etc. Florestone Yes
DAVID'S
BRIDAL Roof - Serial No. 45206 JPS Elastronics Corp. Yes
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK #272278,
272284 and 275482
Laminated Glass Oldcastle Glass Yes
HVAC - Unit Model No. Lennox Yes
LGC12052BSG; Serial No.
5603G03295
HVAC - Unit Model No. Lennox Yes
LGC12052B5G; Serial No.
5603G03296
HVAC - Unit Model No. Lennox Yes
LGC156HG; Serial No.
5603G02867
Plumbed Water Cooler Elkay Sales, Inc. Yes
Faucets, Showers, Sinks, Etc. Florestone Yes
XXXX DRESS
FOR LESS
Roof - Serial No. 46226 JPS Elastronics Corp. Yes
Aluminum-Framed Entrance and YKK AP America Inc. Yes
Storefronts - YKK #284987
Bathroom Fixtures and Faucets American Standard Yes
Plumbed Water Cooler Elkay Sales, Inc. Yes
Faucets, Showers, Sinks, Etc. Florestone Yes
BED, BATH
AND BEYOND
ANY AND ALL EXISTING
WARRANTIES RELATING
TO THE BED, BATH &
BEYOND SPACE THAT, BY
THEIR TERMS, ARE NOT
TRANSFERRABLE WITHOUT
THE APPLICABLE
WARRANTY PROVIDER'S
PRIOR CONSENT
GENERAL ANY AND ALL OTHER
EXISTING WARRANTIES
RELATING TO THE
PROPERTY THAT, BY THIER
TERMS, ARE NOT
TRANSFERRABLE WITHOUT
THE APPLICABLE
WARRANTY PROVIDER'S
PRIOR CONSENT
