Exhibit 10.380
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AGREEMENT OF SALE
Between
UTF WINSTON-SALEM L.L.C.
as Seller
and
INLAND REAL ESTATE ACQUISITIONS, INC.
as Purchaser
August__________, 2004
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is made this _______ day of August,
2004 by and between UTF WINSTON-SALEM L.L.C., a Delaware limited liability
company ("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC. ("Purchaser").
WITNESSETH:
WHEREAS, GMAC Insurance Management Corp. ("Lessee") is the current owner
of a fee simple interest in and to the land located at 000 X. Xxxxx Xxxxxx, more
particularly described on Exhibit "A" attached to this Agreement and made part
of this Agreement (the "Land") together with the Improvements (as described in
Section 1 below) located thereon;
WHEREAS, Seller has the right to acquire the Premises (as defined herein)
from Lessee and the Lessee has agreed to convey the Premises to Seller;
WHEREAS, Lessee and Seller have agreed to enter into a Lease Agreement in
the form attached hereto as Exhibit "C" (the "Lease") upon conveyance of the
Premises by Lessee to Seller. Lessee has indicated that, at Closing (as such
term is defined in Section 7), Lessee's obligations under the Lease will be
guaranteed pursuant to a Guaranty (the "Guaranty) from GMAC Insurance Holdings,
Inc. ("Guarantor"); and
WHEREAS, Seller is desirous of selling to Purchaser, and Purchaser is
desirous of purchasing from Seller, a fee simple interest in and to the
Premises, upon the terms and conditions hereinafter stated.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE. Seller hereby agrees to sell to Purchaser
and Purchaser hereby agrees to purchase from Seller, for the Purchase Price (as
defined in Section 2(b) hereof) and subject to the encumbrances set forth on
Exhibit "B" or such other encumbrances that Purchaser may approve pursuant to
the terms of this Agreement (the "Permitted Encumbrances") and subject to and
upon each and every of the terms and conditions hereinafter set forth, the
following-described property (all of which are collectively referred to as the
"Premises"):
(a) a fee simple interest in and to the Land;
(b) all of Seller's right, title and interest in and to all of the
buildings, structures, fixtures, facilities, installations and other
improvements of every kind and description now in, on, over and under the
Land, and all plumbing, gas, electrical, ventilating, lighting and other
utility systems, ducts, hot water heaters, oil burners, domestic water
systems, elevators, escalators, canopies, air conditioning systems and all
other building systems and fixtures attached to or comprising a part of
the buildings, but excluding those items deemed to be Severable Property
pursuant to the Lease (collectively, the "Improvements"). Lessee is the
owner of the land upon which the parking garage improvements serving the
Premises are located, but Seller and Purchaser
acknowledge that the parking garage improvements are subject to certain
financing documents and are owned by the City of Winston-Salem (the
"City"). Lessee manages and operates the parking garage improvements on
the City's behalf. Lessee intends to acquire the parking garage
improvements from the City prior to its conveyance of the Premises to
Seller. Lessee has agreed that, upon Lessee's acquisition of the parking
garage improvements prior to the conveyance of the Premises to Seller,
Lessee will convey title to such parking garage improvements to Seller. If
Lessee is unable to acquire the parking garage improvements on or before
Closing, Lessee will convey to Seller only the land on which the parking
garage improvements are located. Accordingly, if Seller does not receive a
conveyance by Lessee of title to the parking garage improvements prior to
Closing, the term "Improvements" shall not include the parking garage
improvements; and
(c) all of the Seller's right, title and interest, if any, in and
to all easements, rights-of-way, appurtenances and other rights and
benefits thereunto belonging, and to all public or private streets, roads,
avenues, alleys or pass ways, open or proposed, on or abutting the Land,
and to any award made to or to be made in lieu thereof, and in and to any
award for damage to the land or any part thereof by reason of a change of
grade in any street, alley, road or avenue, as aforesaid (all of the
foregoing being included within the term "Land").
SECTION 2. XXXXXXX MONEY AND PURCHASE PRICE.
(a) Purchaser has delivered Chicago Title Insurance Company,
National Business Unit, 000 X. Xxxxx Xx., Xxxxxxx, XX 00000-0000,
Attention: Xxxxx Xxxxxx (the "Escrow Agent"), the sum of Five Hundred
Thousand Dollars ($500,000) (the "Xxxxxxx Money"), to be held in an
interest bearing escrow account with interest to be credited to Purchaser
The Xxxxxxx Money shall be applied as set forth in Section 14 hereof.
(b) The purchase price for the Premises (the "Purchase Price")
shall be Sixty Million Dollars ($60,000,000) less any charges or
prorations provided for herein in cash or by bank wire transfer in
immediately available funds at Closing.
SECTION 3. WARRANTIES AND REPRESENTATIONS
(a) Except as specifically set forth in Section 3(b), Purchaser
hereby acknowledges that Seller is conveying the Premises in their present
"AS IS" condition and has not made, does not make and will not make any
warranties or representations, whether express or implied, with respect to
the Premises or the value or marketability thereof or any of the
appurtenances, facilities or equipment thereof or of the financial
condition or accuracy of the financial information provided by or with
respect to Lessee. Further, Purchaser acknowledges that Seller has not
made, does not make and will not make any warranties, whether express or
implied, of habitability, merchantability or fitness for a particular
purpose unless specifically set forth herein. Purchaser further
acknowledges that, by its consummating the transactions contemplated by
this Agreement, it will have made such legal, factual, financial and other
inquiries and investigations as it deems necessary, desirable or
appropriate with respect to Lessee, the
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Premises and the value thereof and the appurtenances, facilities and
equipment thereof, and that it will be relying solely thereon (except for
the representations and warranties of Seller pursuant to Section 3(b)
hereof).
(b) Seller hereby covenants, represents and warrants to Purchaser
that:
(i) Seller has the right to receive a conveyance of the
Premises from Lessee pursuant to a Purchase and Sale Agreement dated
June 21, 2004 by and between Purchaser and Lessee (the "Underlying
Agreement"). Seller hereby agrees to complete the acquisition of the
Premises from Lessee, provided that (A) the Due Diligence Deadline
has passed without Purchaser having delivered a Notice of
Termination (as such term is defined in Section 6 hereof), (B)
Seller has not elected to terminate the Underlying Agreement prior
to the Due Diligence Deadline and (C) Lessee complies with its
obligations under the Underlying Agreement including, but not
limited to, its obligation to convey the Premises to Seller. The
Premises are free of liens and encumbrances except for Permitted
Encumbrances.
(ii) Seller has no knowledge and has not been notified of
any condemnation proceedings or any annexation proceedings having
been instituted or threatened against the Premises.
(iii) Seller is a duly and validly formed Delaware limited
liability company in good standing and has obtained authority to
transact business in North Carolina.
(iv) Seller has full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
Neither the entering into of this Agreement nor the consummation of
the transactions described herein has or will constitute a violation
or breach of any of the terms of any contract or other instrument to
which Seller is a party or by which any of Seller's assets or
property may be affected.
(v) (A) At Closing, the Lease and Guaranty shall be in
full force and effect in accordance with their respective terms, and
no Event of Default (as defined in the Lease) shall exist under the
Lease. At Closing, there will be no claims, credits or offsets in
favor of Lessee.
(B) At Closing, the Lease will be in the form
attached hereto as Exhibit "C". Furthermore, at Closing:
(1) Lessee will not be entitled to and will
not have received rental concessions or abatements;
(2) No action or proceeding will have been
instituted against Seller by Lessee in any court;
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(3) There will be no security deposit on
deposit with Seller or otherwise chargeable to
Seller's account by any party under the Lease;
(4) No rental payments thereunder will have
been received by Seller more than one month in advance
of the date such payments are due under the terms of
the Lease;
(5) Prior to the Due Diligence Deadline,
Seller shall provide Purchaser with copies of any
amendments or modifications to the form of Lease.
Following the Due Diligence Deadline, Seller shall
make no amendments or modifications to the form of
Lease or Guaranty without first obtaining Purchaser's
prior written consent;
(6) The form of Guaranty, which is attached
hereto as Exhibit "G", is a preliminary draft of the
Guaranty. Prior to the Due Diligence Deadline, Seller
shall promptly provide Purchaser with the final form
of Lease and Guaranty that has been agreed upon by
Seller and Guarantor, Seller shall promptly provide
Purchaser with any interim drafts of the Lease and
Guaranty reflecting changes to the drafts previously
delivered to Purchaser. Purchaser shall have 2
business days to review and approve any changes to the
Lease and Guaranty. If the 2 business days afforded to
Purchaser hereunder shall extend beyond the Due
Diligence Deadline, then Seller shall request an
extension of its due diligence period ("Seller's
Feasibility. Period") under the agreement between
Seller and Lessee with respect to the acquisition of
the Premises (the "Underlying Agreement"). If Lessee
agrees to amend the Underlying Agreement to provide
for an extension of Seller's Feasibility Period, the
Due Diligence Deadline on this Agreement shall be
extended for an additional 2 business days.. Following
the Due Diligence Deadline, Seller shall make no
amendments or modifications to the form of Guaranty
without first obtaining Purchaser's prior written
consent; and
(7) There will be no agreements or
understandings regarding the Lease that are not
included in the Lease. Lessee will have no right or
option to purchase the Premises except as may be
specifically set forth in the Lease.
(vi) Seller is not required to perform any work for Lessee.
(vii) To the best of Seller's knowledge, no work has been
performed or is in progress at, and no materials have been furnished
to, the Premises which, though not presently the subject of, might
give rise to mechanic's, materialmen's or other liens against the
Premises or any portion thereof for which Lessee is not required to
pay.
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(viii) There are no leasing commissions or other compensation
due and payable to any person, firm or entity with respect to or on
account of the Lease, and no leasing commissions or other
compensation which would be payable by the lessor under the Lease
shall become due and payable solely as a result of the exercise by
Lessee of any renewal options contained in the Lease.
(ix) At Closing, Seller will not have entered into any
service and maintenance contracts relating to or affecting the use,
operation or management of the Premises, and Seller will not employ
any person to service or manage the Premises.
(x) There are no actions or proceedings pending or, to the
best of Seller's knowledge, threatened against or involving the
Premises, the Seller or the Lease.
(xi) Seller has not received written notice from the Lessee
of any violations of environmental, health, safety, clean air, clean
water, federal, state, county or municipal law, ordinance, order,
regulation or requirement affecting the Premises.
(xii) Seller has not received written notice from any
governmental authority of any violation of the building code or
zoning code affecting the Premises.
(c) Purchaser hereby covenants, represents and warrants to Seller
that:
(i) Purchaser has all requisite power and authority to
acquire the Premises and to carry out the transactions contemplated
hereby.
(ii) Purchaser and any principal(s) of Purchaser shall keep
in confidence, and not disclose to any third party (exclusive of
Purchaser's counsel and other representatives and the principal(s)
counsel, all of which shall hold the same in confidence) prior to
Closing without the express written consent of Seller, any
information or documentation provided to Purchaser by or on behalf
of Seller (the "Confidential Information") which is not otherwise
available to the public, and such confidentiality obligation shall
survive if the transaction contemplated by this Agreement is not
consummated, Notwithstanding anything herein to the contrary,
following the Due Diligence Deadline (or Purchaser's waiver of its
right to terminate this Agreement prior to the Due Diligence
Deadline), Purchaser may disclose the Confidential Information to
(a) potential investors in Purchaser's Section 1031 funds (so long
as management of the Property shall be maintained by Purchaser or an
affiliate) and (b) potential lenders in connection with the purchase
of the Premises by Purchaser.
(d) The following representations and warranties related to
restrictions on uses of or at the Premises shall be included in: (i) any
agreement transferring complete or partial possession or ownership of the
Premises through sale, lease, or otherwise to any successor, assign,
purchaser, or tenant, and (ii) any deed of conveyance transferring
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complete or partial ownership of the Premises as restrictions which will
run with the Premises and be binding upon all subsequent owners, tenants,
and users, and shall be enforceable against Purchaser, its successors, and
assigns and inure to the benefit of and be enforceable by Seller, its
successors and assigns:
(i) Purchaser warrants and agrees that it shall not
"treat," "store" or "dispose" of any "hazardous substances,"
"hazardous wastes" or "toxic substances" as those terms are defined
under CERCLA, 42 U.S.C. 9601 ET. SEQ., RCRA, 42 U.S.C. 6901 ET.
SEQ., or TSCA, 15 U.S.C. 2601 ET. SEQ., or under similar North
Carolina law, statute, or regulation, on, at, or below the Premises,
and shall maintain generator-only status; provided, however, that
Purchaser may (A) accumulate such substances or wastes as allowed
under applicable Environmental Laws for off-site treatment, off-site
storage, or off-site disposal, and (B) use commercial products
on-site which may contain such substances.
(ii) Purchaser acknowledges and agrees that the Premises
may only be used by Purchaser, its successors, assigns, and tenants
for industrial uses and the following commercial uses; office
buildings. Purchaser further acknowledges and agrees that any site
modifications required at, in, on, or below the Premises to
accommodate such uses is the sole obligation and liability of
Purchaser (or the owner of the Premises at the time of such
activities) and will be conducted at Purchaser's sole expense.
(iii) The obligations and use restrictions set forth in this
Section 3(d) shall survive the Closing.
SECTION 4. ITEMS DELIVERED BY SELLER. Within one (1) business day after
Seller's receipt thereof, Seller shall deliver the following to Purchaser:
(a) one copy of the "as-built" Survey for the Premises dated July
7, 2004, prepared by The Xxxxxxxx Company (the "Survey"); and
(b) one (1) copy of a Property Condition Assessment prepared by
Criterium Engineers; and
(c) one (1) copy of a Phase I Environmental Site Assessment
("Phase I") prepared by Criterium Engineers.
In the event that the Purchaser shall require a re-certified, updated or
otherwise revised version of the Survey described in this Section 4 ("Revised
Survey"), Purchaser may, at its own cost and expense obtain such a Revised
Survey. In the event that the Purchaser shall require an update or a reliance
letter with respect to the Phase I described in this Section 4, Purchaser may,
at its own cost and expense obtain such items. Seller and Purchaser agree that
Seller shall not be responsible for ordering a Revised Survey, updated Phase I,
or a reliance letter with respect to the Phase I, but agrees that it shall
provide any necessary authorizations and otherwise cooperate with Purchaser.
Purchaser's receipt of a Revised Survey, updated Phase I, or a reliance letter
with respect to the Phase I prior to Closing shall not be deemed to be a
condition to Closing.
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SECTION 5. TITLE REPORT. Upon the execution hereof by Purchaser and
Seller, Seller shall order a preliminary title commitment (including copies of
all documents described therein as exceptions to coverage) with respect to the
Premises from Chicago Title Insurance Company, National Business Unit, 0000-00xx
Xxxxxx XX, Xxxxx 000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Xxxx (the "Title
Company") for delivery to Purchaser. To the extent such title commitment
discloses matters not shown as Permitted Encumbrances, Purchaser shall have
until the earlier of the Due Diligence Deadline or 20 days following receipt by
Purchaser of the last of the title commitment, title exception documents and
Survey within which to object in writing to the substantive matters reflected
therein. Seller shall, within three business days following the receipt by
Seller of such objection by Purchaser, inform Purchaser whether or not Seller
shall undertake to remove or cure the matter or matters objected to by
Purchaser. If Seller undertakes to remove or cure such matters, Seller shall
proceed with all diligence to do so, and the parties shall proceed toward
Closing, with the Closing Date being extended for such a reasonable time as may
be necessary to remove or cure those matters to which Purchaser has objected but
in no event shall any extension be more than 30 days without the written consent
of both parties. If Seller is unwilling or unable to remove or cure some or all
of those matters to which Purchaser has objected, Purchaser shall, within five
business days of receiving notice that Seller is either unwilling or unable to
so remove or cure: (1) waive its objection to those matters not removed or cured
(whereby such matters shall be deemed to be included within the definition of
Permitted Encumbrances) and proceed to Closing; or (2) terminate this
transaction, in which event the Xxxxxxx Money shall promptly be returned to
Purchaser, any information and documents supplied by Seller to Purchaser shall
promptly be returned to Seller, and Seller and Purchaser shall be relieved and
discharged of any further liability or obligation under this Agreement except as
may have accrued pursuant to Section 6 hereof. Notwithstanding anything herein
to the contrary, as long as Purchaser has provided its objections to the title
commitment to Seller within the time period prescribed in this Section 5, Seller
shall be obligated to cure any matter or matters (which are not set forth as
Permitted Encumbrances on Exhibit "B") that are objected to by Purchaser in the
event that (A) Seller has caused the matter or matters objected to by Purchaser,
and (B) the matter or matters objected to by Purchaser may be cured by Seller's
payment of an amount up to $100,000. Seller and Purchaser hereby agree that
Seller will be under no obligation to cure any objection by Purchaser with
respect to any restrictive covenants similar to those described in Section 3(d)
of this Agreement.
SECTION 6. INSPECTION; DUE DILIGENCE DEADLINE; TERMINATION NOTICE. From
and after the date of the execution hereof until Closing, upon reasonable notice
and subject to Lessee's rights under the Lease to be executed, Purchaser and its
agents shall be permitted to further inspect the Premises, at Purchaser's sole
cost and expense, in any reasonable manner desired by Purchaser. Seller and
Purchaser agree that Seller shall arrange any and all inspections, and that
Purchaser shall not make any contact with the Lessee prior to Closing. Seller
shall not be responsible for and Purchaser indemnifies Seller against any claim
for injury or damage caused or incurred by Purchaser, its authorized agents or
representatives conducting the inspection.
Purchaser shall have until 5:00 p.m., New York time, on August 17, 2004
(the "Due Diligence Deadline") to deliver written notice to Seller of its
intention to terminate this Agreement ("Termination Notice"). If Purchaser
elects to terminate this Agreement by sending the Termination Notice prior to
the Due Diligence Deadline, the Xxxxxxx Money, together with interest thereon,
shall be returned to Purchaser and neither party shall have any further
liability or
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obligation under this Agreement. If Purchaser does not elect to terminate this
Agreement by delivery of the Termination Notice prior to the Due Diligence
Deadline, the Xxxxxxx Money shall become nonrefundable and be applied pursuant
to this Agreement except in the event of a default by Seller under this
Agreement whereby Purchaser is entitled to a refund of the Xxxxxxx Money or the
failure of a condition to Purchaser's obligation to consummate the acquisition
of the Premises. Seller and Purchaser acknowledge and agree that Purchaser may
exercise its right to terminate the Agreement prior to the Due Diligence
Deadline for any reason whatsoever including, but not limited to, Purchaser not
having approved of the credit of Lessee or Guarantor.
Purchaser hereby acknowledges that, except as may be contained in Section
3(b) hereof, Seller has not made any representations upon which Purchaser has
relied with respect to the physical condition of the Premises and that the
Premises are being purchased in their "AS IS" condition.
SECTION 7. CLOSING.
(a) The closing hereunder ("Closing") shall take place at the
offices of Escrow Agent or at such place as may be mutually agreed in
writing by Purchaser and Seller. The date of Closing shall be the later of
September 16, 2004 (the "Projected Closing Date") or 10 days after Lessee
has conveyed the Premises to Seller.
(b) At Closing, following satisfaction of all requirements and
conditions specified in Section 8 hereof, (i) Purchaser shall release such
of the documents received from Seller, as Purchaser or Seller reasonably
desires to have recorded, to Escrow Agent, and Purchaser shall
concurrently instruct Escrow Agent to record such documents necessary to
consummate this transaction and simultaneously transfer the Purchase Price
to such account as Seller may have designated; and (ii) Seller shall
release such of the documents received from Purchaser as Seller or
Purchaser reasonably desires to have recorded to Escrow Agent. Escrow
Agent shall not be authorized to record any deed or other documents until
it or Seller has in its possession the Purchase Price and is prepared to
deliver same to Seller in immediately available funds. Escrow Agent will
not be authorized to deliver the Purchase Price until Title Company and
Escrow Agent are prepared to record such documents necessary to consummate
this transaction and deliver the title policy referred to in Section
8(a)(i)(C) hereof.
SECTION 8. CONDITIONS TO CLOSING.
(a) Purchaser shall not be obligated to close the purchase and
sale transaction contemplated by this Agreement until all of the following
conditions have been satisfied:
(i) Seller shall have delivered or caused to be delivered
to Purchaser, at Seller's cost and expense, each of the following
items:
(A) A limited warranty deed for the Premises, duly
executed and acknowledged, conveying the Premises to
Purchaser, subject to Permitted Encumbrances;
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(B) An assignment of the Lease in the form attached
hereto as Exhibit "E";
(C) An owner's policy of title insurance from Title
Company subject only to Permitted Encumbrances, in an amount
not less than the Purchase Price, or, at Seller's election, a
signed pro forma policy from the Title Company dated as of the
date and time of the Closing for the issuance of such policy.
If the Title Company refuses to issue such signed pro forma
policy, then Seller must provide an irrevocable written
commitment from Title Company dated as of the date and time of
the Closing for the issuance of such policy showing that all
requirements for issuance have been satisfied;
(D) Such evidence or documents as may be reasonably
required by Purchaser or Title Company evidencing the status
and capacity of Seller and the authority of the person or
persons who are executing the various documents on behalf of
Seller in connection with the sale hereunder;
(E) A certificate or certificates of insurance,
relating to the insurance carried by Lessee for the additional
benefit of the lessor under the Lease;
(F) An original executed copy of the Lease and the
Guaranty;
(G) Full and complete possession of the Premises
subject to the rights of parties in possession pursuant to or
as permitted by the Lease;
(H) A nonforeign status affidavit in substantially
the form of Exhibit "D" attached hereto;
(I) An assignment of intangible rights or contract
rights, if any, that Seller may have with respect to the
Premises;
(J) A bring down letter confirming that all of the
representations or warranties set forth in this Agreement
remain true as of the date of Closing signed by the Seller;
and
(K) Lessee's estoppel certificate in the form
required of Lessee under the Lease, signed by an authorized
representative of Lessee. In the event that Lessee has not
executed and delivered such estoppel certificate prior to
Closing, Purchaser may elect to postpone Closing to the date
on which the estoppel certificate is received by Purchaser.
(L) There has been no default claimed under any
estoppel certificate delivered pursuant to the terms of this
Agreement
(M) A Quitclaim Xxxx of Sale.
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(N) In the event that the Lessee does not acquire
the parking garage improvements from the City prior to its
conveyance of the Premises to Seller, Purchaser must have
delivered an estoppel certificate or non-disturbance agreement
in form reasonably acceptable to Purchaser to Seller to
confirm Lessee's right to use and operate the parking garage
during the entire term of the Lease.
(ii) Lessee must have conveyed title to the Premises to
Seller prior to or concurrently with the Closing. If Lessee has not
conveyed title to the Premises to Seller within sixty (60) days
after the Projected Closing Date, then either Purchaser or Seller
(but only if Lessee's failure to convey the Premises to Seller is
not due to a default by Seller under the Underlying Agreement) may
terminate the Agreement and Escrow Agent shall return the Xxxxxxx
Money to Purchaser; and
(iii) Basic Rent (as defined in the Lease) under the Lease
shall be in amounts that are not less than those amounts set forth
on Exhibit "F" attached hereto.
(iv) Seller shall have delivered, at Closing, an estoppel
certificate signed by an authorized representative of Guarantor
confirming its obligations under the Guaranty.
(v) Seller shall have delivered to Purchaser such further
documents as reasonably may be required in order to fully and
legally close this transaction.
(b) Seller shall not be obligated to close the purchase and sale
transaction contemplated by this Agreement until all of the following
conditions have been satisfied:
(i) The Purchase Price shall have been placed in escrow
with Escrow Agent for release to Seller upon Seller's satisfaction
of the requirements of Section 8(a);
(ii) Lessee must have conveyed title to the Premises to
Seller prior to or concurrently with the Closing. If Lessee has not
conveyed title to the Premises to Seller within sixty (60) days
after the Projected Closing Date, then either Purchaser or Seller
(but only if Lessee's failure to convey the Premises to Seller is
not due to a default by Seller under the Underlying Agreement) may
terminate the Agreement and Escrow Agent shall return the Xxxxxxx
Money to Purchaser; and
(iii) Purchaser shall have delivered to Seller such further
documents as reasonably may be required in order to fully and
legally close this transaction.
(c) If any of the foregoing conditions to Purchaser's or Seller's
obligation shall fail to be satisfied or waived on or before the date of
Closing and the transaction does not close on the date of Closing as a
result of such failure or lack of waiver (with the exception of the
delivery of the estoppel certificate described in Section 8(a)(i)(K) and
as
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otherwise set forth in the following sentence), all items delivered shall
immediately be returned, and all such prior deliveries shall be deemed to
have been of no force or effect whatsoever and the parties shall have the
remedies provided in Section 14. Notwithstanding anything herein to the
contrary, the failure of the conditions set forth in Section 8(a)(ii) and
8(b)(ii) to be satisfied shall not be deemed to be a default by either
party and Section 14 shall not be applicable.
SECTION 9. PRORATIONS. Lessee pays all taxes, operating expenses and
insurance premiums with respect to the Premises. Seller and Purchaser shall
prorate at Closing the Basic Rent (as defined in the Lease) payable in the month
of Closing so that Purchaser receives a credit for the date of Closing until the
end of the month in which the Closing occurs.
SECTION 10. REAL ESTATE COMMISSION. Neither Purchaser nor Seller has used
a broker to negotiate this transaction. Purchaser and Seller hereby indemnify,
defend and hold the other harmless from and against any and all claims, losses,
costs and expenses, including reasonable counsel fees, resulting from any claims
that may be made through that party against the other by any other broker
claiming a commission.
SECTION 11. EXPENSES. Seller shall pay the cost of a standard coverage
owner's title insurance policy, and if requested by Purchaser, Purchaser shall
pay the cost of an extended coverage owner's title insurance policy and any
endorsements. At Closing, all fees and expenses with respect to transfer of
title and recordation of the deed, including but not limited to, recording
charges, taxes or document stamps with respect to the recording of the deed, and
escrow fees of the Escrow Agent shall be paid by Seller. Each party shall pay
its own legal fees and expenses, if any, and its due diligence fees and
expenses, if any. Notwithstanding anything herein to the contrary, Seller shall
provide Purchaser with a credit at Closing in the amount of $3,000 that may be
applied by Purchaser to pay any of its costs at Closing.
SECTION 12. OPERATION OF PREMISES. Upon commencement of the Lease until
Closing, Seller will enforce the terms of the Lease regarding operation of the
Premises by Lessee and will not take or omit to take any action which reasonably
could be expected to have a materially adverse effect on Seller's title to the
Premises or the condition of the Premises.
SECTION 13. CONDEMNATION AND CASUALTY. In case any material portion of the
Premises shall have been condemned or shall be in the process of condemnation on
the date of Closing or shall then have been damaged by reason of public or
quasi-public improvements, or in case a portion of the Premises shall be damaged
or destroyed by fire or other casualty which will cost more than $100,000 to
restore and which Lessee is required to restore, or if Lessee has the right to
xxxxx rent or terminate the Lease, Purchaser shall have the right (a) to cancel
this Agreement by written notice to Seller within 30 business days after notice
of any such event or (b) to proceed to Closing according to the terms hereof
without any reduction of the Purchase Price but with all insurance proceeds,
together with any deductible amount, or condemnation awards payable to Seller
and not required to be applied to restoration pursuant to the Lease with respect
to such casualty or condemnation assigned or paid to Purchaser through escrow.
SECTION 14. REMEDIES. In the event of a default by Seller under this
Agreement, at Purchaser's option, either (i) the Xxxxxxx Money shall be returned
to Purchaser, and Seller will
11
not have any further liability to Purchaser and Seller shall reimburse Purchaser
for all of Purchaser's actual third party costs, which were incurred in
connection with the transaction described herein, but in no event shall Seller
be required to pay more than $100,000 in the aggregate, or (ii) if Seller is the
fee simple owner of the Premises, Purchaser shall have the right of specific
enforcement of this Agreement. Notwithstanding the foregoing, Seller shall
remain liable for a year after the date of Closing for any breach of a
representation and warranty of which Purchaser is unaware until after Closing.
IN THE EVENT OF A DEFAULT BY PURCHASER, SELLER MAY RETAIN THE XXXXXXX MONEY AS
LIQUIDATED DAMAGES, IT BEING ACKNOWLEDGED BY PURCHASER AND SELLER THAT ACTUAL
DAMAGES SUFFERED BY SELLER IN SUCH EVENT WILL BE DIFFICULT OR IMPOSSIBLE TO
MEASURE AND THAT THE XXXXXXX MONEY REPRESENTS GOOD FAITH ESTIMATE THEREOF, WHICH
RECEIPT OF LIQUIDATED DAMAGES SHALL BE SELLER'S SOLE REMEDY HEREUNDER.
SECTION 15. NOTICES All notices, demands or other communications of any
type (herein collectively referred to as "Notices") given by Seller to Purchaser
or by Purchaser to Seller, whether required by this Agreement or in any way
related to the transaction contracted for herein, shall be void and of no effect
unless given in accordance with the provisions of this Section 15. All Notices
shall be in writing and delivered to the person to whom the Notice is directed,
either in person, or by United States mail as a registered or certified item,
return receipt requested, or by overnight courier, or by telephone facsimile
(telecopier) transmission, and shall (except as limited below) be effective upon
receipt. Notices shall be provided to the parties and addresses (or facsimile
numbers, as applicable) specified below.
If to Seller:
c/o United Trust Fund, Inc.
Xxxxx 0000
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
with a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Telephone: (000)000-0000
Facsimile: (000)000-0000
12
If to Purchaser:
Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: G. Xxxxxx Xxxxxxx
If to Escrow Agent:
Chicago Title Insurance Company
000 X. Xxxxx Xx.
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
Facsimile transmissions shall be effective upon receipt thereof so long as
receipt of the transmission is confirmed by telephone call and an original copy
of the correspondence is posted by mail or sent by overnight courier as provided
above.
SECTION 16. INDEMNITY
(a) Seller hereby agrees to indemnify and hold harmless Purchaser,
its partners and their officers, directors, shareholders and partners from
and against any and all liabilities, losses, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands or judgments of any nature
arising from or connected with the ownership of the Premises to the date
of Closing, except as the same may be caused by any negligence or willful
misconduct of Purchaser or may arise pursuant to an inspection of the
Premises by Purchaser pursuant to Section 6 hereof.
(b) Purchaser hereby agrees to indemnify and hold harmless Seller,
its partners and their officers, directors, shareholders and partners from
and against any and all liabilities, losses, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses),
causes of action, suits, claims, demands or judgments of any nature
arising from or connected with the ownership of the Premises on and after
the date of Closing except as the same may be caused by any negligence or
willful misconduct of Seller.
SECTION 17. ASSIGNMENT. The rights and obligations of Purchaser arising
under this Agreement may not be assigned without the prior written consent of
Seller. Notwithstanding anything herein to the contrary, the rights and
obligations of Purchaser under this Agreement may be assigned, without the prior
written consent of Seller, to (a) an entity owned or controlled by Purchaser and
formed for the sole purpose of entering into the transaction contemplated by
this Agreement, or (b) a qualified intermediary retained by Purchaser in
connection with an exchange of the Premises pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended, or (c) an affiliate or subsidiary of
Purchaser or a part of the same group of entities
13
which contain a parent entity. In any assignment which may be made by Purchaser
of its rights and obligations under this Agreement, Purchaser shall remain
primarily liable under this Agreement.
SECTION 18. MISCELLANEOUS
(a) This Agreement shall be construed and interpreted in
accordance with the laws of North Carolina. Where required for proper
interpretation, words in the singular shall include the plural, the
masculine gender shall include the neuter and the feminine, and vice
versa. Periods of time shall be measured in calendar days unless otherwise
stated. If any performance is required on a Saturday, a Sunday or any
holiday, such performance will be due on the next succeeding day which is
not a Saturday, a Sunday or a holiday.
(b) This Agreement may not be modified or amended except by an
agreement in writing signed by Seller and Purchaser. The parties may waive
any of the conditions contained herein or any of the obligations of the
other party hereunder, but any such waiver shall be effective only if in
writing and signed by the party waiving such conditions or obligations.
(c) This Agreement shall be binding upon and inure to the benefit
of all successors and permitted assigns of the parties hereto.
(d) This Agreement shall not create any third party beneficiary
rights.
(e) Each party executing this Agreement warrants and represents
that it is fully authorized to do so.
(f) The descriptive headings of the several sections contained in
this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
(g) This Agreement, including the Exhibits hereto, constitutes the
entire agreement among the parties pertaining to the subject matter hereof
and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith.
(h) This Agreement may be executed in any number of counterparts,
each of which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one and the same instrument.
(i) In the event of any litigation between Seller and Purchaser
with respect to the Premises or this Agreement, subject to Section 16
hereof the prevailing party shall be entitled to collect its reasonable
attorneys' fees and expenses from the losing party.
(j) This Agreement shall not be recorded by either party in any
office or place of public record, and, if Purchaser shall record this
Agreement or cause or permit same to
14
be recorded, Seller may, at its option, elect to treat such act as a
breach of this Agreement.
15
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
UTF WINSTON-SALEM L.L.C.
By United Trust Fund Limited Partnership, its
sole member
By United Trust Fund, Inc., its sole general
partner
By /s/ [ILLEGIBLE]
----------------------------------------
Its Sr Vice President
---------------------------------------
INLAND REAL ESTATE ACQUISITIONS, INC.
By /s/ [ILLEGIBLE]
--------------------------------------------
Its PRESIDENT
--------------------------------------------
16
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
PERMITTED ENCUMBRANCES
1. Taxes, due and assessments for the year 2004, and subsequent years, not
yet due and payable.
2. Easement(s) to Southern Xxxx Telephone and Telegraph Company recorded in
Book 449, page 241, Forsyth County Registry.
3. Lease to North Carolina Municipal Leasing Corporation, memorandum of which
is recorded in Book 1718, page 862, Forsyth County Registry.
4. Easement(s) to Southern Xxxx Telephone and Telegraph Company recorded in
Book 1712, page 1418, Forsyth County Registry.
5. Access alley and easement and proposed access described in Deed recorded
in Book 1769, page 628 and Dedication recorded in Book 1769, page 625,
Forsyth County Registry.
6. Reservation of easements by the City of Winston-Salem contained in
Resolution recorded in Book 1811, page 3368, Forsyth County Registry.
7. Easements, setback lines and any other matters shown on plat recorded in
Plat Book 8, page 66, Forsyth County Registry.
8. Rights of others entitled thereto in and to the use of that portion of
insured premises within the bounds of sidewalk and concrete walk.
EXHIBIT C
LEASE
EXHIBIT D
CERTIFICATION OF NONFOREIGN STATUS
(Entity-Corporation, Partnership, Trust of Estate)
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by UTF Winston-Salem L.L.C.,
the undersigned hereby certifies the following on behalf of UTF Winston-Salem
L.L.C.:
1. UTF Winston-Salem L.L.C. is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations).
2. UTF Winston-Salem L.L.C.'s office address is Suite 1300, 000
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 and its Federal Employer
Identification Number is ______________.
UTF Winston-Salem L.L.C. understands that this certification may be
disclosed to the Internal Revenue Service by transferee and that any false
statement contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of UTF Winston-Salem L.L.C.
Dated: UTF WINSTON-SALEM L.L.C.
--------------
By United Trust Fund Limited Partnership, its
sole member
By United Trust Fund, Inc., its sole general
partner
By
---------------------------------------
Its
--------------------------------------
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE, dated __________________ ____,
2002, by and among UTF WINSTON-SALEM L.L.C., a Delaware limited liability
company ("Assignor"), [Assignee], a ___________ (collectively, the "Assignee").
WITNESSETH:
WHEREAS, Assignor, as lessor, and GMAC Insurance Management Corp.
("Lessee"), pursuant to that certain Lease Agreement between Seller and Lessee
dated as of__________ _____, 2004, demising certain premises located in
Winston-Salem, North Carolina and legally described on Exhibit "A", which is
attached hereto and incorporated herein by this reference (the "Lease"); and
WHEREAS, Assignor desires to assign the Lease to Assignee and Assignee
desires to accept such assignment and assume the obligations of the lessor under
the Lease.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, transfers, and conveys to
Assignee all of Assignor's right, title and interest as lessor in and to the
Lease, including without limitation all of Assignor's right, title and interest
in and to all security deposits and rentals thereunder.
2. ASSUMPTION. Assignee hereby assumes all liabilities and obligations
of Assignor under the Lease which arise on or after the date hereof and agrees
to perform all obligations of Assignor under the Lease which are to be performed
or which become due on or after the date hereof ("Assumed Obligations").
3. INDEMNITY BY ASSIGNOR. Assignor shall indemnify and hold Assignee
harmless from any and all cost, liability, damage, or expense, including,
without limitation, reasonable attorneys' fees and disbursements, accruing or
arising out of any obligations of Assignor under the Lease, other than the
Assumed Obligations.
4. INDEMNITY BY ASSIGNEE. Assignee shall indemnify and hold Assignor
harmless from any claim, liability, cost or expense (including without
limitation reasonable attorneys' fees) arising out of Assignee's failure to
perform any of the Assumed Obligations.
5. BINDING EFFECT. This Assignment shall be binding upon and inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
6. COUNTERPARTS. This Assignment may be executed in two or more
counterparts.
IN WITNESS WHEREOF, this Assignment and Assumption of Lease has been
executed on the date and year first above written.
ASSIGNOR:
UTF Winston-Salem L.L.C., a Delaware limited
liability company.
By United Trust Fund Limited Partnership, a
Delaware limited partnership
By United Trust Fund, Inc., a Delaware corporation
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
ASSIGNEE:
[ASSIGNEE]
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
EXHIBIT F
BASIC RENT
YEARS BASIC RENT
----- ----------
1-5 $ 5,164,449
6 $ 5,266,828
7 $ 5,369,206
8 $ 5,475,680
9 $ 5,582,154
10 $ 5,692,722
EXHIBIT G
FORM OF GUARANTY
