Exhibit 2.1
INDIAN RIDGE PLAZA
MISHAWAKA, INDIANA
REAL ESTATE SALE AGREEMENT
--------------------------
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of October, 1999, by and between FIRST CAPITAL INSTITUTIONAL REAL ESTATE,
LTD. - 4, an Illinois limited partnership ("Seller"), with an office at Two
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and CHASE SHOPPING
CENTERS, INC., an Ohio corporation ("Purchaser"), with an office at 00000
Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in the City of Mishawaka, County of St. Xxxxxx, State of Indiana,
commonly known as Indian Ridge Plaza, which parcel is more particularly
described on EXHIBIT A.
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, the "Property" (as such term is hereinafter defined), each in
accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) buildings and improvements
located thereon that are owned by Seller (collectively, the "Improvements") and
any and all of Seller's rights, easements, licenses and privileges presently
thereon or appertaining thereto; (ii) Seller's right, title and interest in and
to the leases of the Property (as amended, the "Leases") affecting the Property
or any part thereof; (iii) the interest of Seller in all security deposits held
by Seller that have been paid by tenants under the Leases and not applied by
Seller in accordance with the terms of the Leases and/or applicable law, if any
(the "Security Deposits"); (iv) all of the furniture, furnishings, fixtures,
equipment, maintenance vehicles, tools and other tangible personally owned by
Seller, located on the Property and used in connection therewith including those
that are listed on EXHIBIT B attached hereto but specifically excluding all
software installed in or used in connection with the computers, monitors,
printers, modems and other computer equipment located in the regional on-site or
management office of the Property and all data stored in such computers, on
diskettes or other storage media (the "Personal Property"); (v) all right, title
and interest of Seller under any and all of the maintenance, service,
advertising and other like contracts and agreements with respect to the
ownership and operation of the Property that are listed on EXHIBIT C attached
hereto (the "Service Contracts"); (vi) if and to the extent transferable, all of
Seller's right, title and interest in and to all licenses and permits issued by
governmental authorities relating to the use, maintenance, occupancy or
operation of the
Property; and (vii) if and to the extent transferable, all of Seller's right,
title and interest in and to the name "Indian Ridge Plaza", if any; all to the
extent applicable to the period from and after the "Closing" (as such term is
hereinafter defined) (items (i) through (vii) above, together with the Real
Property, are collectively referred to in this Agreement as the "Property"). All
of the foregoing expressly excludes all property owned by tenants or other users
or occupants of the Property, and excludes any refund of taxes applicable to the
period prior to the Closing Date.
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property is
Fifteen Million Dollars ($15,000,000.00) (the "Purchase Price"). The Purchase
Price shall be paid as follows:
X. Xxxxxxx Money.
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(i) Upon execution of this Agreement by Purchaser and Seller,
Purchaser shall deliver to Chicago Title and Trust Company,
Chicago, Illinois ("Escrowee") xxxxxxx money in the sum of
One Hundred Fifty Thousand Dollars ($150,000.00) (such
xxxxxxx money deposit, together with any interest earned
thereon net of investment costs, is referred to in this
Agreement as the "Xxxxxxx Money") and Purchaser, Seller and
Escrowee shall execute a joint order escrow agreement in the
form of EXHIBIT D attached hereto. The Xxxxxxx Money shall
be invested as Seller and Purchaser so direct. Any and all
interest earned on the Xxxxxxx Money shall be reported to
Purchaser's federal tax identification number.
(ii) If Purchaser does not terminate this Agreement pursuant to
section 8.A below, Purchaser shall within one (1) business
day of the expiration of the Due Diligence Period (hereafter
defined) deposit an additional One Hundred Fifty Thousand
Dollars ($150,000.00) with Escrowee, which amount shall be
deemed additional Xxxxxxx Money hereunder.
(iii)If the transaction closes in accordance with the terms of
this Agreement, at Closing, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as part payment of the
Purchase Price. If the transaction fails to close due to a
default on the part of Purchaser, the Xxxxxxx Money shall be
delivered by Escrowee to Seller as liquidated and agreed-
upon damages in accordance with Section 7.A below. If the
transaction fails to close due to a default on the part of
Seller, the Xxxxxxx Money shall be delivered by Escrowee to
Purchaser, subject to the provisions of Section 7.B below.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from the
Escrowee, and plus or minus, as the
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case may require, the closing prorations and adjustments to be made pursuant
to Section 4.C. below.
3. EVIDENCE OF TITLE
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A. Title Commitment.
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Seller has delivered to Purchaser a commitment for an ALTA
Owner's Fee Policy of Title Insurance (Form B 1970) (the "Title Commitment"), in
the amount of the Purchase Price, issued by Chicago Title Insurance Company,
Chicago, Illinois (the "Title Insurer"). At Closing, the Title Insurer shall
deliver to Purchaser a later-dated title commitment ("Title Policy") from the
Title Insurer in the amount of the Purchase Price reflecting the conveyance of
the Property to Purchaser, subject only to (a) those exceptions more fully
described on attached EXHIBIT E ("Current Permitted Exceptions") and (b) other
exceptions to title which become "Permitted Exceptions" pursuant to this Section
3 (collectively, the "Permitted Exceptions"), with extended coverage over all
general exceptions and such delivery shall be a condition precedent to
Purchaser's obligation to close the purchase and sale transaction contemplated
herein.
B. Survey.
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Seller has delivered to Purchaser a plat of survey of the
Premises (the "Initial Survey"). Seller shall immediately upon execution of this
Agreement order, and as soon as reasonably practicable after the date of this
Agreement deliver to Purchaser, a current survey of the Real Property (the
"Final Survey") meeting the most recent ALTA/ACSM standards.
C. Review of Title Commitment and Survey.
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Purchaser shall have until the expiration of the Due Diligence
Period (as defined in Section 8 below) to notify Seller of (x) any matters shown
on the Final Survey or Title Commitment which are not listed on EXHIBIT E to
which Purchaser objects ("Defects") and (y) actions or deliveries that Purchaser
requests Seller to make in order for Purchaser to obtain its desired
endorsements ("Endorsement Items"). If any additional exceptions to title or
survey matters ("New Defects") arise between the date of the Title Commitment or
the Final Survey, and the Closing, Purchaser shall have five (5) business days
after its receipt of notice of same within which to notify Seller of such New
Defects to which Purchaser objects. Any matters arising after the date of the
Title Commitment or Final Survey, as applicable, not objected to by Purchaser as
aforesaid shall become Permitted Exceptions. If Purchaser objects to any Defects
or New Defects, or requests Endorsement Items, Seller shall have until Closing
to remove such Defects or New Defects, which removal may be accomplished by
waiver or endorsement by the Title Insurer, and to deliver the Endorsement
Items. Except as set forth in the last sentence of this Section 3.C, if Seller
fails to remove or endorse over any Defects or New Defects or to deliver the
Endorsement Items, Purchaser may, as its sole and exclusive remedy, terminate
this Agreement and obtain a return of the Xxxxxxx Money. If Purchaser does not
elect to terminate this Agreement, Purchaser shall consummate the Closing and
accept title to the Property subject to all such Defects or New Defects (in
which event, such Defects or New Defects shall be deemed Permitted Exceptions).
Anything to the contrary notwithstanding, Seller shall be obligated, at Closing,
to cause the Title Insurer to remove or endorse over any
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judgment liens against Seller, any other liens which in the aggregate can be
satisfied as a matter of right by payment of $25,000 (in the case of liens which
do or do not arise due to an act of Seller) and an additional $25,000 (for liens
that arise due to an act of Seller) and any liens which are not set forth on
Exhibit E and were intentionally placed against the Property in violation of
this Agreement (excluding in each case, any lien created by, through or under a
tenant), and in the event Seller fails to do so, Purchaser shall have a right to
use a portion of the Purchase Price to pay such amounts.
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated by this
Agreement (that is, the payment of the Purchase Price, the transfer of title to
the Property, and the satisfaction of all other terms and conditions of this
Agreement) shall occur through escrow at 11:00 a.m. (Chicago time) on the
thirtieth (30th) day after expiration of the Due Diligence Period, at the
Chicago office of Escrowee, or at such other time and place as Seller and
Purchaser shall agree in writing. The "Closing Date" shall be the date of
Closing. If the date for Closing above provided for falls on a Saturday, Sunday
or legal holiday, then the Closing Date shall be the next business day.
B. Closing Documents.
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(i) Seller. At Closing, Seller shall deliver to Purchaser the
following:
(a) a Special Warranty Deed (the "Deed"), subject to the
Permitted Exceptions (except that the deed may contain
an exception for all matters which would be shown by a
survey), in form acceptable to the Title Insurer;
(b) a xxxx of sale (the "Xxxx of Sale") in the form of
EXHIBIT F attached hereto, executed by Seller;
(c) a letter from Seller or its property manager advising
tenants under the Leases of the change in ownership of
the Property, that all Security Deposits have been
transferred to Purchaser at Closing are held by and are
the responsibility of Purchaser and directing the
tenants to pay all payments of rent with respect to the
period from and after the Closing Date to Purchaser at
an address specified by Purchaser;
(d) two (2) counterparts of an assignment and assumption of
the Leases and Security Deposits in the form of EXHIBIT
G attached hereto (the "Lease Assignment"), executed by
Seller;
(e) two (2) counterparts of an assignment and assumption of
Service Contracts with respect to those Service
Contracts for which written agreements exist, in the
form of
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EXHIBIT H attached hereto (the "Service Contract
Assignment"), executed by Seller;
(f) two (2) counterparts of an assignment of intangibles
(the "Assignment of Intangibles") in the form of
Exhibit O attached hereto;
(g) two (2) counterparts of an assignment and assumption of
maintenance agreement ("Assignment of Maintenance
Agreement") in the form of EXHIBIT P attached hereto
("Assignment of Maintenance Agreement");
(h) two (2) counterparts of an assignment and assumption of
the Toys REA (hereafter defined) ("Assignment of Toys
REA") in the form of EXHIBIT Q attached hereto;
(i) two (2) counterparts of an assignment and assumption of
the May REA (hereafter defined) ("Assignment of May
REA") in the form of EXHIBIT R attached hereto;
(j) two (2) counterparts of an assignment and assumption of
VICORP REA (hereinafter defined) ("Assignment of Vicorp
REA") in the form of EXHIBIT R-1 attached hereto.
(k) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and that
Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code;
(l) two (2) counterparts of a closing statement (the
"Closing Statement") to be executed by Seller and
Purchaser, containing the "Closing Delinquency
Schedule" (as defined below) and setting forth the
prorations and adjustments to the Purchase Price as
required by Section 4.C. below, executed by Seller;
(m) all executed "Estoppel Certificates" (as hereinafter
defined) received by Seller as of the Closing Date;
(n) any "Seller Estoppel Certificates" (as hereinafter
defined) to be delivered by Seller under Section 9.C.
below;
(o) all original Leases and Service Contracts in Seller's
possession or copies of such Leases and Service
Contracts for which Original Leases or Service
Contracts are not available;
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(p) an Owner's affidavit in form reasonably and customarily
required by Title Insurer to issue the Title Policy;
and executed by Seller; and
(q) resolutions evidencing Seller's authorization of this
transaction and an incumbency certificate evidencing
the authority of all signatories.
(ii) Purchaser. Purchaser shall deliver or cause to be delivered
to Seller at Closing:
(a) the funds required pursuant to Section 2.B. above;
(b) two (2) counterparts of the Lease Assignment, executed
by Purchaser;
(c) two (2) counterparts of the Service Contract
Assignment, executed by Purchaser;
(d) two (2) counterparts of the Closing Statement, executed
by Purchaser;
(e) two (2) counterparts of the Assignment of Intangibles
executed by Purchaser;
(f) two (2) counterparts of the Assignment of Maintenance
Agreement, executed by Purchaser;
(g) two (2) counterparts of the Assignment of Toys REA,
executed by Purchaser;
(h) two (2) counterparts of the Assignment of May REA,
executed by Purchaser;
(i) two (2) counterparts of the Assignment of VICORP REA,
executed by Purchaser;
(j) copies of any executed Estoppel Certificates received
by Purchaser as of the Closing Date; and
(k) resolutions evidencing Purchaser's authorization of
this transaction and an incumbency certificate
evidencing the authority of all signatories.
C. Closing Prorations and Adjustments.
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(i) The following items are to be prorated or adjusted by
the parties (as appropriate) as of the Closing Date, it
being understood that for purposes of prorations and
adjustments, Seller shall be
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deemed the owner of the Property on the day preceding the
Closing Date and Purchaser shall be deemed the owner of the
Property on the Closing Date; provided, however, that if
Seller receives the Purchase Price in immediately available
funds after 2:00 p.m., Chicago time on the Closing Date,
then, for purposes of prorations and adjustments, Seller
shall be deemed the owner of the Property on the Closing
Date and Purchaser shall be deemed the owner of the Property
on the day after the Closing Date:
(a) real estate and personal property taxes and assessments
("Taxes") assessed for 1998 and payable in 1999 shall
be paid by Seller at or prior to Closing or credited to
Purchaser. Taxes assessed for 1999 and payable in 2000
shall be prorated based on the most recent
ascertainable tax xxxx if the current xxxx is not then
available and, in all events, subject to reproration as
described in Section 4.C.[iv] upon receipt of the final
xxxx;
(b) the "minimum" or "base" rent payable by tenants under
the Leases ("Base Rent") and Operating Expense
Reimbursements (as defined in Section 4(c)(ii)) payable
by tenants under the Leases; provided, however, that
rent and all other sums which are due and payable to
Seller as of Closing but uncollected as of the Closing
shall not be adjusted, but Purchaser shall cause the
rent and other sums for the period prior to Closing to
be remitted to Seller if, as and when collected,
subject, however, to the remaining provisions of this
Section 4.C.(i)(b). At Closing, Seller shall deliver to
Purchaser a schedule (the "Closing Delinquency
Schedule") of all such past due but uncollected rent
and other sums owed by tenants, (collectively, the
"Past Due Rents"). Purchaser shall promptly remit to
Seller any such Past Due Rents paid by tenants set
forth on the Closing Delinquency Schedule, but only if
the applicable tenants are otherwise current in the
payment of all obligations due for the period following
Closing. The amount of any Past Due Rents to be paid by
any tenant shall be paid in accordance with such
tenant's Lease as now existing (Purchaser hereby
covenanting and agreeing not to modify the Leases after
Closing to change the date and/or method for payment of
amounts attributable to the period prior to Closing).
Seller shall not be permitted (during the six month
period following Closing) to institute or continue any
collection actions against any tenants whose Lease has
not terminated or any tenants that are still in
possession of the premises demised under their Lease.
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(c) Percentage rent shall be prorated as follows: to the
extent not set forth on the Closing Delinquency
Schedule, "percentage" or "overage" rent, shall be
prorated as follows: percentage rent as and when
collected shall be prorated based upon each party's pro
rata share of the sales for the Tenant's fiscal year
(for determination of sales under the Lease) in which
Closing occurs. Prorations shall be on the basis of a
per diem (number of days) method of allocation. Upon
receipt by Purchaser, Purchaser shall furnish to Seller
copies of all sales reports from tenants relative to
the percentage rent, including, without limitation, all
sales reports with respect to any tenants whose lease
years have expired as of the Closing but whose sales
reports were not available on Closing and sales reports
of any tenants whose lease years expire after the
Closing, and the amount of any percentage rent shall be
paid in accordance with such tenant's Lease as now
existing, and Purchaser shall pay to Seller a pro rata
portion of such percentage rent, calculated in the
manner provided above, promptly after the date when
such rent is received from the tenant.
(d) With respect to tenant improvement costs and/or
allowances or leasing commissions relating to "New
Leases" (as hereinafter defined) for space which is
vacant as of the date of this Agreement, Seller and
Purchaser agree that such costs, rent abatements,
allowances and commissions shall be prorated over the
term of any such New Lease with Seller being
responsible for a portion of such costs, rent
abatements, allowances and commissions based on the
ratio of Base Rent payments received by Seller through
the Closing Date to the total Base Rent payable over
the term of the particular New Lease and, in the event
that Seller has paid or incurred such costs, rent
abatements, allowances and/or commissions prior to
Closing, Purchaser shall reimburse Seller at Closing
for the amount of any such costs, allowances and/or
commissions paid by Seller, based on the above-
described proration;
(e) the amount of the Security Deposits held by Seller as
of the Closing Date, if any, with Purchaser receiving a
credit at Closing against the Purchase Price in the
amount of the Security Deposits held by Seller as of
the Closing Date, if any;
(f) water, sewer, electric, telephone and all other utility
and fuel charges, fees and use charges, fuel on hand
(at cost
8
plus sales tax) and any deposits with utility companies
(to the extent possible, utility prorations will be
handled by meter readings on the day immediately
preceding the Closing Date);
(g) amounts due and prepayments under the Service
Contracts and the Maintenance Agreement;
(h) assignable license and permit fees; and
(i) other similar items of income and expenses of operation
(including but not limited to amounts receivable or due
under any reciprocal easement or similar agreement).
(ii) For purposes hereof, real estate taxes, common area
maintenance, utility charges, water and sewer charges,
insurance, and all other expenses for which charges are made
to tenants or contributions are made by tenants under the
Leases are referred to as "Operating Expenses", and the
amount reimbursable by tenants under the Leases for
Operating Expenses are referred to as "Operating Expense
Reimbursements".
(iii) (a) As soon as practical after Closing, but in no event
later than May 1, 2000 (except with respect to Taxes,
which shall be reprorated upon the issuance of the
final xxxx for 1999 when issued in 2000), Seller and
Purchaser shall, with respect to any amounts paid,
prorated or adjusted at Closing pursuant to Section
4.C.(i) above based on estimates or formulae, as
applicable, jointly determine and reapportion such
amounts in accordance with Section 4.C.(i) above upon
determination of the actual costs or expenses with
respect thereto. In the event that the amount credited
to Purchaser by Seller at Closing exceeds the amount of
the credit that Purchaser should have received had such
actual amounts been available at Closing, Purchaser
shall promptly remit such excess amount to Seller. In
the event that the amount credited to Seller by
Purchaser at Closing exceeds the amount of the credit
that Seller should have received, Seller shall promptly
remit such excess to Purchaser. If any payment required
under this Section is not made within 30 days of final
calculation, such amount will thereafter bear interest
at a rate per annum equal to 4% above the then current
"prime rate" announced by Bank One, Chicago, Illinois.
(b) In the event that the amount of Operating Expense
Reimbursements retained by Seller as of Closing (net of
credits to Purchaser) is less than the amount of
Operating
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Expense Reimbursements to which Seller is entitled
after calculation of Seller's share of actual Operating
Expenses for the period prior to closing, Purchaser
shall promptly remit such amounts to Seller. In the
event that the amount of the Operating Expense
Reimbursements retained by Seller as of Closing (net of
credits to Purchaser) exceeds the amount of the
Operating Expense Reimbursements that Seller should
have retained at Closing had the actual amounts of
Operating Expenses for the period prior to Closing been
available at Closing, Seller shall remit such excess
amounts (net of amounts due Seller from the particular
tenant as to which the Operating Expense applies) to
Purchaser and Purchaser shall be thereafter obligated
to promptly remit the applicable portion to the
particular tenants entitled thereto (and Purchaser
shall indemnify, defend and hold Seller, its
beneficiaries, their partners, and their respective
directors, officers, employees and agents, and each of
them, harmless from and against any losses, claims,
damages and liabilities [including, without limitation,
reasonable attorneys' fees and expenses incurred in
connection therewith] arising out of or resulting from
Purchaser's failure to remit any amounts to tenants
that Purchaser is obligated to so remit in accordance
with this Section 4.C.[iii]).
(iv) If Seller has not received all Past Due Rents or other
amounts owed to Seller within six months after the Closing
Date, Seller, at its sole cost and expense, shall be
entitled at any time after such date to commence such
actions or proceedings not affecting possession or resulting
in termination of the Lease in question as Seller shall
desire to collect any such Past Due Rents or other amounts
owed to Seller by Tenants, and Purchaser shall cooperate
with Seller in any such action at no cost to Purchaser.
(v) For purposes of this Section 4.C., the amount of any expense
credited by one party to the other shall be deemed an
expense paid by that party. The terms and provisions of this
Section 4.C. shall survive Closing and the delivery of the
Deed.
(vi) Seller shall have the exclusive right to file and prosecute
and/or appeal (or to continue any of the foregoing to the
extent currently in existence) any tax complaint for the
year in which Closing occurs and prior years. All refunds
and other sums payable by reason of any such tax complaint
shall be the property of Seller (except to the extent
relating to taxes assessed for the year of Closing, which
refund shall be prorated on a per diem basis). Buyer assigns
to Seller all rights which Buyer may have to file a tax
complaint or pursue an appeal for such years. Buyer shall
incur no cost or expense in connection with Seller's actions
under this clause (vi). In the event Seller receives any
refund or other amounts which are due to tenants of the
Property in accordance with their leases, Seller shall
promptly
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remit such amounts to the applicable tenants upon receipt by
Seller. This provision shall survive Closing.
D. Transaction Costs.
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Seller shall be responsible for and pay (i) the cost of the Final
Survey, (ii) the cost of the base owner's title policy to be delivered to
Purchaser in accordance with Section 3.A. above, (iii) one-half of any escrow
and/or closing fees of Escrowee and Title Insurer (the "Escrow Fees"), and (iv)
charges to record releases of Seller's existing mortgage financing. Purchaser
shall be responsible for and pay premiums for (i) extended coverage and title
insurance endorsements requested by Purchaser, (ii) one-half of the Escrow Fees,
and (iii) all recording charges. Seller and Purchaser shall, however, be
responsible for the fees of their respective attorneys.
E. Possession.
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Upon Closing, Seller shall deliver to Purchaser possession of the
Property, subject only to such matters as are permitted by or pursuant to this
Agreement.
5. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof shall be taken
or condemned (a "Condemnation"), or destroyed or damaged by fire or other
casualty (a "Casualty"), Seller shall promptly so notify Purchaser. In such
event, provided that either: (i) the reasonable cost to restore the Property due
to such damage or destruction is greater than $125,000 (a "Material Casualty")
or (ii) the taking or condemnation materially, adversely and permanently affects
the economic use of the Property (a "Material Condemnation"), then Purchaser
shall have the option to terminate this Agreement by delivery of a written
termination notice to Seller within ten (10) days after Seller's delivery to
Purchaser of its notice of a Material Condemnation or Material Casualty. If (a)
the damage or destruction is not a Material Casualty, (b) a taking or
condemnation is not a Material Condemnation, or (c) Purchaser does not elect to
terminate this Agreement pursuant to the provisions of the preceding sentence
(time being of the essence with respect to any such election), then Seller and
Purchaser shall consummate the transaction contemplated by this Agreement
without abatement of the Purchase Price and Purchaser shall be entitled to
approve the terms of any insurance settlement, such approval not to be
unreasonably withheld or delayed, and to receive at Closing the taking,
condemnation or insurance proceeds (or an assignment of the right to such
proceeds) (less any amounts applied against costs incurred or income lost by
Seller as a result of such occurrence) together with a credit against the
Purchase Price in an amount equal to the amount of any deductibles payable under
applicable casualty insurance and Seller shall, at Closing, execute and deliver
to Purchaser all customary proofs of loss, assignments of claims and other
similar items. If Purchaser elects to terminate this Agreement pursuant to the
provisions of this Section 5 and Purchaser is not in default under this
Agreement, the Xxxxxxx Money shall be returned to Purchaser by the Escrowee, in
which event this Agreement shall, without further action of the parties, become
null and void and neither party shall have any further rights or obligations
under this Agreement; provided, however, that the foregoing shall not limit
Seller's recourse against Purchaser under Sections 6 (as to Purchaser's
indemnity obligations), 8.B and 11.J. Purchaser shall have the right to
terminate this Agreement and to have the Xxxxxxx Money returned if tenants
leasing in excess of 30,000 square feet in the
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aggregate have the right to terminate their Leases (except to the extent waived
in writing) by reason of a Casualty or a Condemnation which occurs.
6. BROKERAGE
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Seller, pursuant to a separate written agreement, is obligated to pay
upon Closing (but not otherwise) a brokerage commission to Xxx Xxxxxx Associates
("Broker") for services rendered in connection with the sale and purchase of the
Property. Seller shall indemnify and hold Purchaser harmless from and against
any and all claims of Broker related to Seller's agreement to pay Broker a
commission in connection with the purchase and sale of the Property, including,
without limitation, reasonable attorneys' fees and expenses incurred by
Purchaser in connection with such claim. Seller and Purchaser shall each
indemnify and hold the other harmless from and against any and all claims of all
brokers and finders (other than a claim by Broker) claiming by, through or under
the indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
7. DEFAULT AND REMEDIES
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A. Notwithstanding anything to the contrary contained in this
Agreement, if (1) Seller fails to perform in accordance with the terms of this
Agreement and the Closing does not occur as a result of such failure, and (2)
Purchaser is not otherwise in default hereunder, then, as Purchaser's sole and
exclusive remedy hereunder and at Purchaser's option, either (x) the Xxxxxxx
Money shall be returned to Purchaser, in which event this Agreement shall be
null and void, and neither party shall have any rights or obligations under this
Agreement except as provided in Section 6 (as to Purchaser's indemnity
obligations), 8.B. and 11.J. below, or (y) upon notice to Seller not less than
thirty (30) days after the date then scheduled for Closing hereunder, and
provided an action is filed within ninety (90) days thereafter, Purchaser may
seek specific performance of this Agreement, but not damages; provided, if such
default is intentional and renders specific performance materially unavailable,
Purchaser may recover from Seller damages equal to Seller's actual, third party,
out of pocket costs incurred in connection with its due diligence of the
Property, in an amount not to exceed $30,000 in the aggregate; further,
provided, that if such default arises due to the sale of the Property by Seller
to a third party in violation of this Agreement or Seller's election not to sell
the Property without justification under this Agreement, then Purchaser may
recover all of its actual damages incurred from Seller.
B. If (i) Purchaser fails to perform in accordance with the terms of
this Agreement, and (ii) such failure is not as a result of a default by Seller
in its obligations hereunder, the Xxxxxxx Money may be retained by Seller as
liquidated and agreed upon damages and as Seller's sole and exclusive remedy
with respect thereto at which time this Agreement shall terminate and be of no
further force and effect; provided, however, that the foregoing shall not limit
Seller's recourse against Purchaser under Sections 6 (as to Purchaser's
indemnity obligations), 8.B. and 11.J. Purchaser and Seller acknowledge and
agree that (1) the Xxxxxxx Money is a reasonable estimate of and bears a
reasonable relationship to the damages that would be suffered and costs incurred
by Seller as a result of having withdrawn the Property from sale and the failure
of Closing to occur due to a default of Purchaser under this Agreement; (2) the
actual damages suffered and costs incurred by Seller as a results of such
12
withdrawal and failure to close due to a default of Purchaser under this
Agreement would be extremely difficult and impractical to determine; (3)
Purchaser seeks to limit its liability under this Agreement to the amount of the
Xxxxxxx Money in the event this Agreement is terminated and the transaction
contemplated by this Agreement does not close due to a default of Purchaser
under this Agreement; and (4) the Xxxxxxx Money shall be and constitute valid
liquidated damages.
C. After Closing, Seller and Purchaser shall, subject to the terms
and conditions of this Agreement, have such rights and remedies as are available
at law or in equity, except that neither Seller nor Purchaser shall be entitled
to recover from the other punitive consequential or special damages.
8. PURCHASER'S INSPECTION AND REVIEW OF THE PROPERTY
-------------------------------------------------
A. Purchaser shall have until 5:00 P.M., Chicago time, on the
thirtieth (30th) day after the date of this Agreement (the "Due Diligence
Period"), within which to satisfy itself as to all matters concerning its
acquisition, ownership and operation of the Property, including, without
limitation, matters concerning title, survey, zoning, subdivision laws,
environmental matters, review and approval of leases, contracts and financial
matters affecting the Property, existence of all required licenses, permits and
approvals, approval of the condition of the improvements on the Property, all
soil, landscaping and other physical conditions of the Property, availability
and sufficient quantities of all utilities, and other matters in its discretion.
From the date this Agreement is executed until the Closing, Seller hereby grants
to Purchaser and its agents full access to the Property and all of Seller's
operational and financial records pertaining to the Property in order to conduct
such inspections, samplings and tests as Purchaser deems necessary, but
excluding internal memoranda, appraisals and other confidential information.
Purchaser's right of inspection pursuant to this Section 8.A. shall be subject
to the rights of tenants under the Leases and other occupants and users of the
Property. Purchaser shall have the right to contact tenants and other occupants
and users of the Property upon prior verbal notice to Seller. No inspection
shall be undertaken without twenty-four (24) hours prior notice to Seller and no
invasive testing shall take place without Seller's prior consent. Seller shall
have the right to be present at any inspections.
B. In the event of Purchaser's notice to Seller and Escrow Agent on
or before 5:00 p.m. Chicago time on the last day of the Due Diligence Period
that it elects to terminate this Agreement pursuant to Section 8.A. hereof, the
Xxxxxxx Money (less $100.00 as consideration to Seller for entering into this
Agreement) shall be returned to Purchaser, and neither party shall have any
further obligation to the other, except as set forth herein. If Purchaser fails
to give such notice on or before the end of the Due Diligence Period, Purchaser
shall be deemed to have waived its right to terminate this Agreement under this
Section 8.B. All of the tests, investigations and studies to be conducted by
Purchaser shall be at Purchaser's sole cost and expense and Purchaser shall
restore the Property to the condition existing prior to the performance of such
tests or investigations by or on behalf of Purchaser. Purchaser shall have no
liability to cure or remediate any condition discovered by Purchaser other than
to restore the Property to the condition existing prior to the performance of
such tests or investigation. Purchaser shall defend, indemnify and hold Seller
and any affiliate, partner or parent of Seller, and all shareholders, employees,
officers and directors of Seller or Seller's affiliate, partner or parent
(hereinafter collectively referred to as "Affiliates of Seller") harmless from
any and all damage, liability, cost and expense (including without limitation,
reasonable
13
attorney's fees, court costs and costs of appeal) suffered or incurred by Seller
or Affiliates of Seller for injury to persons or property or otherwise caused by
Purchaser's investigations and inspection of the Property. Purchaser shall
undertake its obligation to defend set forth in the preceding sentence using
attorneys selected by Purchaser and reasonably acceptable to Seller.
Notwithstanding anything contained herein to the contrary, the terms of this
Section 8 shall survive the Closing and the delivery of the Deed and termination
of this Agreement.
C. Purchaser acknowledges that it will have, prior to Closing, had an
opportunity to inspect the Property and review all documents and make such other
inquiries and investigations and obtain such reports and analyses it deemed
adequate in connection with its decision to purchase the Property, and, as a
result thereof, Purchaser, agrees that, except as otherwise specifically set
forth in this Agreement, it shall purchase the Property in its "AS IS, WHERE IS"
condition, subject to ordinary wear and tear and as more particularly provided
in Section 11.H.
9. ESTOPPEL CERTIFICATES
---------------------
A. Seller shall, upon expiration of the Due Diligence Period, send
estoppel certificates (individually, a "Estoppel Certificate" and collectively,
the "Estoppel Certificates") (x) in the form of EXHIBIT I attached hereto (the
"Form Tenant Estoppel Certificate") to each tenant occupying space at the
Property as of such date and (y) in the form of EXHIBITS X-0, X-0 and S-3
attached hereto to KRC, TRU and VICORP (each hereinafter defined) ("REA
Certificates").
B. It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates executed by (i) Circuit City, T.J.
Maxx, Fashion Bug and Shoe Carnival ("Major Tenants") and (ii) tenants occupying
one hundred percent (100%) of the remaining net usable square footage of leased
space at the Property as of the date of this Agreement (the tenants described in
(i) and (ii), collectively, the "Required Tenants") and (iii) from (a) KRC
Mishawaka 895, Inc. ("KRC") (successor to The May Department Store Company
("May") pursuant to that certain Construction, Operation and Reciprocal Easement
Agreement dated September 14, 1987 between May and Mishawaka Retail Associates
Limited Partnership ("MRALP") as assigned by MRALP to Seller (as amended, the
"May REA")), (b) TRU Properties, Inc. ("TRU") (successor to Toys "R" Us, Inc.
("Toys") pursuant to that certain Reciprocal Easement and Operating Agreement
dated June 12, 1987 between MRALP and Toys as assigned by MRALP to Seller (as
amended, the "Toys REA")) and (c) from VICORP Restaurants, inc. ("VICORP")
(successor to MRALP pursuant to that certain Reciprocal Easement Agreement dated
January 19, 1989 between MRALP and Seller (the "VICORP REA")). The Estoppel
Certificates executed by tenants shall be in substantially the form of the Form
Tenant Estoppel Certificate and not materially inconsistent with the Rent Roll
and any other representations made herein by Seller with respect to the Leases,
except that an Estoppel Certificate executed by a tenant shall be deemed an
acceptable Estoppel Certificate for purposes of this Section 9 as long as it is
in the form or contains such specified information as the Lease requires the
tenant to provide and/or contains the qualification by the tenant of any
statement as being to its knowledge or as being subject to any similar
qualification. The Estoppel Certificates executed by KRC, TRU and VICORP shall
be in substantially the form of the REA Certificates (the aforesaid acceptable
Estoppel Certificates to be delivered are collectively referred to as the
"Required Estoppel Certificates"). Notwithstanding the foregoing, Purchaser
shall have the right to consider as
14
unacceptable any Estoppel Certificate materially inconsistent with the Rent Roll
or which claims a default or breach by Seller.
C. In the event that Seller is unable to provide the Required Estoppel
Certificates to Purchaser at the Closing Seller shall (other than with respect
to Major Tenants, KRC, TRU and VICORP) execute and deliver to Purchaser
certificates (individually, a "Seller Estoppel Certificate", and, collectively,
the "Seller Estoppel Certificates") substantially in the same form as the
certificate attached hereto as Exhibit J (the "Form Seller Estoppel
Certificates) covering up to 20% of the net usable square footage of leased
space at the Property so that Purchaser shall receive, at Closing, Required
Estoppel Certificates and Seller Estoppel Certificates with respect to the
Required Tenants. Each statement contained in such Seller Estoppel Certificates
shall survive for a period terminating on the earlier of (i) two hundred seventy
(270) days from the Closing Date, or (ii) the date on which Purchaser has
received an executed Required Estoppel Certificate signed by the tenant under
the Lease in question. If Purchaser receives an estoppel certificate which
contains some but not all of the matters set forth in the Estoppel Certificate
(a "Partial Certificate") and Seller provides a Seller Estoppel Certificate for
such tenant, then (i) if the Partial Certificate is received prior to Closing,
the Seller Estoppel Certificate may omit matters contained in the Partial
Certificate and (ii) if the Partial Certificate is received after Closing,
Seller's Estoppel Certificate shall cease to survive as to the matters contained
in the Partial Certificate. If any Estoppel Certificate contains statements
confirming any of Seller's representations or warranties contained in Section 10
hereof, then Seller shall be relieved of any liability with respect to any such
representation or warranty.
D. In the event that Seller does not provide to Purchaser Required
Estoppel Certificates and Seller Estoppel Certificates for Required Tenants,
KRC, TRU and VICORP, Purchaser may either: (x) elect not to purchase the
Property, in which event this Agreement terminate and be of no further force and
effect, the Escrowee shall promptly return the Xxxxxxx Money to Purchaser and
thereafter neither Seller nor Purchaser shall have any further rights or
obligations under this Agreement, provided, however, that the foregoing shall
not limit Seller's recourse against Purchaser under Sections 6 (as to
Purchaser's indemnity obligations), 8.B. or 11.J.; or (y) elect to purchase the
Property notwithstanding Purchaser's decision not to require Seller to provide
the such Certificates, in which event Seller shall not be obligated to provide
any additional Estoppel Certificates to Purchaser after Closing.
E. If any Estoppel Certificates or Seller Estoppel Certificates contain
statements or allegations that a default or potential default exists on the part
of Seller under the instrument in question or contain information inconsistent
with any representations of Seller contained in this Agreement and Purchaser
elects to close the purchase and sale transaction contemplated herein
notwithstanding the existence of such statements, allegations or information,
then such Estoppel Certificates and/or Seller Estoppel Certificates shall be
deemed acceptable for purposes of this Section 9, notwithstanding the existence
of such allegations, statements or information and Seller shall have no
liability to Purchaser hereunder with respect to the existence of such
allegations, statements or information.
F. At Purchaser's request, Seller shall send a Subordination,
Nondisturbance and Attornment Agreement to each tenant at the same xxxx Xxxxxx
sends the Estoppel Certificates to such tenants, provided that (i) Purchaser
delivers such request and the applicable forms to Seller at least five days
prior to the expiration of the Due Diligence Period
15
and (ii) it is acknowledged that Seller is sending such forms to tenants as a
courtesy to Purchaser, and Seller shall have no liability to Purchaser in
connection with the failure to receive executed forms from any tenant, and
receipt of such forms from the tenants shall not be a condition precedent to
Purchaser's obligations hereunder.
10. REPRESENTATIONS AND WARRANTIES
------------------------------
A. Seller represents and warrants to Purchaser that, as of the date
hereof (or as of such other date set forth below) and as of Closing:
(i) To the "Actual Knowledge of Seller" (as hereinafter defined),
except as set forth on EXHIBIT K attached hereto, Seller has
received no written notice from any governmental authority of
any violation of any, state or federal law, rule or regulation
(including, without limitation, environmental laws and laws
governing hazardous materials) concerning the Property or any
part thereof which has not been cured prior to the date of this
Agreement.
(ii) To the Actual Knowledge of Seller and except for the property
management agreement that will be terminated by Seller effective
as of Closing, the list attached hereto as EXHIBIT C lists all
of the maintenance, service, advertising and other service
contracts to which Seller is a party regarding the Property.
(iii) To the Actual Knowledge of Seller, except as set forth on
EXHIBIT L attached hereto, Seller is neither a party to any
existing litigation with respect to the Property nor has it
received written notice of any pending litigation with respect
to the Property.
(iv) Seller has the requisite power and authority to enter this
Agreement and consummate the transaction contemplated in this
Agreement. The party signing this Agreement on behalf of Seller
has full power and authority to bind Seller. The execution,
delivery and performance of this Agreement (together with any
instrument or document to be executed or delivered pursuant to
this Agreement) will not result in a violation of any
contractual obligation of Seller to any third party, nor will
the execution, delivery or performance of this Agreement
conflict with or constitute a default or result in a breach of
any agreement to which Seller is a party and which the property
is bound. No consent of any third party, private or public, is
required to enter into or consummate this Agreement.
(v) To the Actual Knowledge of Seller, Seller has received no
written notice of any pending condemnation proceedings affecting
the Property.
16
(vi) To the Actual Knowledge of Seller, the list (the "Rent Roll")
attached hereto as EXHIBIT M accurately sets forth the
information thereon as of the date of this Agreement.
(vii) Except: (1) as set forth on EXHIBIT N attached hereto, and/or
(2) as expressly set forth in a Lease, no commission or other
compensation is presently payable or in the future will become
payable by Seller or any subsequent owner of the Property to any
broker or finder in connection with any Leases, any unexercised
renewals of such Leases or any unexercised expansion rights
contained in any such Leases.
(viii) Seller is not a "foreign person" within the meaning of Section
1445 of the Internal Revenue Code of 1986, as amended.
(ix) Seller has no employees at the Property.
(x) The Property is not subject to any union or collective
bargaining agreements that will be enforceable against any owner
of the Property after Closing.
(xi) To the Actual Knowledge of Seller, no party other than Seller
has any claim to the Property by reason of any purchase
agreement, option to purchase, right of first refusal, land
installment contract or other similar agreement or instrument or
by adverse possession or prescriptive right, other than pursuant
to Leases.
B. When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Xxxxxx Xxxxxx or Xxxxxx Xxxxx who
Seller represents are the individuals to whom the regional property manager is
directed to send all written notices from tenants and third parties.
Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxx or Xxxxxx
Xxxxx shall have any personal liability or obligation whatsoever with respect to
any of the matters set forth in this Agreement or any of Seller's
representations and/or warranties herein being or becoming untrue, inaccurate or
incomplete in any respect. Any knowledge of or notice given to any of Seller's
other agents, servants or employees shall not be imputed to Seller.
C. The representations and warranties set forth in this Section 10,
shall, subject to the provisions of Section 9.C. above and Section 10.E. below,
survive the Closing and the delivery of the Deed for a period of one hundred
eighty (180) days from the Closing Date. Notice of any claim as to a breach of
any such representations or warranties must be made to Seller prior to the
expiration of such one hundred eighty (180) day period or it shall be deemed a
waiver of the right to asset such claim.
D. Seller does not represent and warrant that any particular Lease or
Service Contract will be in force or effect as of the Closing or that tenants
under Leases or the parties to the Service Contracts will not be in default
under their respective Leases or Service Contracts, and neither the existence of
any default by any tenant under its Lease nor the
17
default of any party under any Service Contract shall affect the obligations of
Purchaser hereunder, except as set forth in Section 10A(v).
E. In the event that, prior to Closing, Purchaser obtains knowledge that,
as of Closing, Seller is in breach of any of the representations and warranties
set forth in Section 10.A. above, or Seller otherwise discloses to Purchaser
facts that are inconsistent with or different from the information set forth in
the representations and warranties made in Section 10.A. or any Seller Estoppel
Certificates (a "Disclosure"), and the Closing occurs, then the representations
and warranties in Section 10.A. shall be deemed to be modified and/or superseded
by such certificates or other documents (and, in such event, Seller shall no
longer have any liability hereunder with respect to the portion of
representation or warranty modified or superseded herein, as applicable and, if
Purchaser receives such information from a source other than Seller, Purchaser
shall promptly notify Seller thereof). If as a result of a Disclosure, Purchaser
elects not to close, Purchaser's sole remedy shall be to receive a return of its
Xxxxxxx Money.
F. Purchaser represents and warrants to Seller than as of the date hereof
and as of Closing that (i) Purchaser has the requisite power and authority, to
enter this Agreement and consummate the transaction contemplated in this
Agreement and (ii) Shaker Towne Centre Limited Partnership is controlled by
Xxxxxx Xxxxx and/or Xxxxx Xxxxxxxx. For purposes of this provision, disclosure
to the "Purchaser" or to the knowledge of "Purchaser" shall refer to the actual
knowledge of Xxxxxx Xxxxx.
10A. CONDITIONS TO CLOSING
---------------------
A. Anything herein contained to the contrary notwithstanding, Purchaser's
obligations under this Agreement are subject to and conditioned upon the
following, any one or all of which may be waived in writing by Purchaser in
Purchaser's sole discretion:
(i) All warranties and representations of Seller shall be materially
true and correct on the Closing Date, and Seller shall have
delivered a certificate (the "Certificate") updating all of such
warranties and representations as of the Closing Date.
(ii) The Title Company shall be in a position to issue the Title
Policy to Purchaser (in the form required by Section 3 hereof) on
the Closing Date subject only to the Permitted Exceptions.
(iii) Seller shall have delivered to Purchaser the Required Estoppel
Certificates set forth in Section 9; and
(iv) Seller shall have delivered all other items required by this
Agreement to be delivered by it and shall have performed each and
every material term, covenant and condition required of it under
this Agreement.
(v) There shall have been no "Material Adverse Change" in the Rent
Roll. There shall be deemed to be a Material Adverse Change in
the Rent Roll only if (a) there has been (and/or Seller receives
18
written notice that there will be) (as of Closing) a reduction of
5% or more in the aggregate income receivable under the leases
that are not Major Leases from the aggregate income shown in the
Rent Roll attached hereto for such leases which are not Major
Leases or (b) there has been (and/or Seller receives written
notice that there will be) any reduction in the rent payable
under any Major Lease or any change (not undertaken in accordance
with the terms of the applicable Lease) in the expiration date of
any Major Lease.
B. Satisfaction of all of the foregoing is a condition precedent to
Purchaser's obligation to close under this Agreement. If Purchaser does not
give Seller written notice on or before Closing of the failure of any such
condition, all conditions shall be deemed satisfied or waived.
C. If as a result of the failure of any condition set forth above,
Purchaser elects not to close, Purchaser's sole remedy shall be to receive a
return of its Xxxxxxx Money, provided, if such failure is solely the result of
sale of the Property by Seller to a third party in violation of this Agreement
or Seller's election not to sell the Property without justification under this
Agreement, then Purchaser may recover all of its actual damages incurred from
Seller as provided in Section 7 hereof.
11. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller and
Purchaser with respect to the Property are merged in this Agreement, which alone
fully and completely expresses the agreement of Purchaser and Seller. Purchaser
further acknowledges that, except as expressly provided in this Agreement,
neither Seller nor any agent or representative of Seller has made, and Seller is
not liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be assigned or
transferred by Purchaser without the written consent of Seller, which consent
may be withheld in the sole and absolute discretion of Seller. Anything to the
contrary notwithstanding, Purchaser shall have the right to assign this
Agreement to any entity controlled by Xxxxxx Xxxxx and/or Xxxxx Xxxxxxxx and/or
their respective family members or trusts for the benefit of such family
members, or to Shaker Towne Centers Limited Partnership, without the consent of
Seller, effective upon written notice to Seller and delivery to Seller of a copy
of the instrument pursuant to which the assignee assumes all of Purchaser's
obligations hereunder. Upon an assignment of this Agreement to a permitted
assignee: (1) Purchaser shall not be relieved of any subsequently accruing
liability under this Agreement, and (2) as used in this Agreement, the term
"Purchaser" shall be deemed to include such permitted assignee. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or other
transferee of any Seller. Subject to the foregoing, this Agreement shall inure
to the benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns.
19
C. This Agreement shall not be modified or amended except in a written
document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance with
the laws of the State of Indiana.
F. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and delivered personally, by
certified mail, return receipt requested, postage prepaid, by overnight courier
(such as Federal Express), or by facsimile transmission, addressed as follows:
1. If to Seller:
c/o Equity Properties and Development Limited Partnership
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxx, Gerber & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
2. If to Purchaser:
Chase Properties
00000 Xxxxxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx
20
With a copy to:
Xxxxx Xxx, Esq.
General Counsel
Chase Properties
00000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving notices,
requests, demands or other communication by notice sent in accordance with the
terms of this Section 11.F.
G. OMITTED.
H. Acknowledging the prior use of the Property and Purchaser's
opportunity to inspect the Property and except as specifically provided in this
Agreement, Purchaser agrees to take the Property "as is, where is" with all
faults and conditions thereon. Any information, reports, statements, documents
or records (collectively, the "Disclosures") provided or made to Purchaser or
its constituents by Seller, its agents or employees concerning the condition of
the Property shall not be representations or warranties except as expressly
provided hereunder. Purchaser shall not rely on such Disclosures, but rather,
Purchaser shall rely only on its own inspection of the Property. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO BE DERIVED FROM
THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER
WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS
REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION
AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980
("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER.
Purchaser, its successors and assigns, hereby waive, release and agree
not to make any claim or bring any cost recovery action or claim for
contribution
21
or other action or claim against Seller and Affiliates of Seller, based on (a)
any federal, state, or local environmental or health and safety law or
regulation, including CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted, (b) any discharge, disposal, release, or escape
of any chemical, or any material whatsoever, on, at, to, or from the Property;
or (c) any environmental conditions whatsoever on, under, or in the vicinity of
the Property.
I. Omitted.
J. Purchaser acknowledges that all information (other than information
which is publicly available) with respect to the Property furnished or to be
furnished to Purchaser is, has been and will be so furnished on the condition
that Purchaser maintain the confidentiality thereof. Accordingly, Purchaser
shall, and shall cause its employees, consultants, agents, directors, officers
and other personnel and representatives to, hold in strict confidence, and not
disclose to any other party without the prior written consent of Seller or
unless the Closing occurs: (i) any of the information with respect to the
Property delivered to Purchaser by Seller or any of its agents, representatives
or employees, or (ii) any term or condition of this Agreement, or (iii) the
results of any inspections or studies undertaken in connection herewith. In
addition, neither Purchaser nor Purchaser's employees, consultants, agents,
directors, officers and other personnel and representatives shall solicit offers
to purchase the Property to any other party without the prior written consent of
Seller and unless the Closing occurs. Notwithstanding the above, Purchaser may
disclose such information to individuals or entities necessary for Purchaser to
consummate the transaction contemplated herein (such as attorneys, lenders,
brokers, engineers, prospective management companies, environmental consultants,
accountants and tax advisors) and as required by law. Purchaser shall instruct
such parties to whom the existence of this Agreement or any information with
respect to the Property is disclosed of the confidentiality provisions of this
Section 11.J. and that such parties shall treat such information in compliance
with this Section 11.J. In the event the Closing does not occur and this
Agreement is terminated, Purchaser shall, upon written request by Seller,
promptly return to Seller all copies of all such information without retaining
any copy thereof or extract therefrom. The foregoing agreements will not survive
Closing.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller all of its
right, title and interest in and to any and all studies, reports, surveys and
other information, data and/or documents relating to the Property or any part
thereof prepared by or at the request of Purchaser, its employees and agents,
and shall deliver to Seller copies of all of the foregoing.
L. Seller hereby covenants and agrees with Purchaser that:
1. From and after the end of the Due Diligence Period through the
Closing, Seller shall deliver for Purchaser's review (a "New Lease
Notice") a copy of any proposed new Lease, or any modification, amendment,
restatement or renewal of any existing Lease (individually, a "New Lease"
and collectively, "New Leases") together with required tenant improvement
costs, allowances, abatements, brokerage commissions and financial
information in Seller's possession with respect to the proposed tenant,
and Purchaser shall have the right to approve or disapprove of any New
Lease by responding in writing to Seller's New Lease Notice within five
(5) business days after Purchaser's receipt
22
of the New Lease Notice. If Purchaser fails to approve or disapprove of
such New Lease within such five (5) business day period, Purchaser shall
be deemed to have conclusively approved of such New Lease, provided
Purchaser shall be deemed to approve any amendment (including renewals and
expansions) to Lease which by the terms of such Lease is automatic or
which Seller is required to enter into pursuant to the Lease, and any such
document shall be deemed an approved New Lease. For any New Lease executed
by Seller prior to the end of the Due Diligence Period, Seller will give
Purchaser written notice of such New Lease together with a copy thereof at
least three business (3) days prior to the expiration of the Due Diligence
Period and if Purchaser fails to terminate this Agreement pursuant to
Section 8.A. hereof, then Purchaser shall be deemed to have approved such
New Lease.
2. All tenant improvement costs and/or allowances and leasing
commissions relating to New Leases entered into by Seller after the date
of this Agreement, for space which is vacant as of the date of this
Agreement, which Purchaser approves (or is deemed to approve) in
accordance with Section 11.L.(1) above, shall be prorated in accordance
with Section 4.C.(i)(c) above.
3. Between the date of this Agreement and the Closing Date, Seller
shall not enter into any Service Contracts unless they are cancelable as
of Closing.
4. Between the date of this Agreement and the Closing Date, Seller
shall operate the Property in the normal course of Seller's business and
maintain the Property in the same condition as of the date of this
Agreement, ordinary wear and tear excepted, subject to Section 5 above.
Notwithstanding anything in the preceding sentence to the contrary, in no
event shall Seller be required to make any capital improvements to the
Property or expend in excess of $10,000 for repairs.
5. Between the date of this Agreement and the Closing Date and except
as required by law or by any of the instruments set forth on EXHIBIT E
attached hereto or as otherwise permitted under this Agreement, Seller
shall not grant an easement, right-of-way or license on, under or about
the Property or for the use of the Property.
6. Between the end of the Due Diligence Period and the Closing Date,
Seller shall neither terminate any Lease nor shall Seller enter into an
agreement with any tenant wherein such tenant is permitted to vacate the
space demised under its Lease. For any lease termination executed by
Seller prior to the end of the Due Diligence Period, Seller will give
Purchaser written notice of such lease termination at least three (3)
business days prior to the expiration of the Due Diligence Period and if
Purchaser fails to terminate this Agreement pursuant to Section 8.A.
hereof, then Purchaser shall be deemed to have approved such termination
or vacation agreement.
M. OMITTED
23
N. Seller and Purchaser hereby designate Escrowee to act as and perform
the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
O. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
P. Seller and Purchaser acknowledge and agree that neither this Agreement
nor a memorandum thereof shall be recorded.
Q. Purchaser acknowledges and agrees that any recovery against Seller
that Purchaser may be entitled to as a result of any and all claims, demands or
causes of action that Purchaser may have against Seller with respect to this
Agreement and the transactions contemplated herein and the documents delivered
at Closing shall be limited to direct and actual damages and only be recoverable
against Seller to the extent of $500,000 in the aggregate; provided, such
limitation shall not apply in the event of fraud on the part of Seller under
this Agreement. Neither Seller's partners nor affiliates, nor any of their
shareholders, partners, officers, directors, agents or employees shall have any
personal liability by reason of any matter whatsoever under, in connection with
this Agreement or the transactions contemplated herein and Purchaser waives for
itself and anyone who may claim by, through or under Purchaser any and all
rights to recover on account of any such personal liability.
R. OMITTED
S. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement shall
not survive the Closing.
T. OMITTED
U. Except as specifically provided herein, no third parties shall have
the benefit of any of the provisions of this Agreement, nor is this Agreement
made with the intent that any person or entity other than Seller and Purchaser
shall rely hereon.
V. (i) Seller acknowledges that Purchaser may acquire the Property as
part of a like-kind exchange under terms and conditions that
qualify as an exchange within the meaning of Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code"). Seller
agrees to execute and deliver any and all documents necessary
and proper in order for Purchaser to effectuate the like-kind
exchange, including, but not limited to, an exchange trust
agreement or similar arrangement (the "Trust Agreement") with
the Title Insurer or another party that will act as a "qualified
intermediary" as defined in the Treasury Regulations
interpreting Section 1031 of the Code (the
24
"Trustee") at no liability, cost or expense to Seller and
without otherwise affecting Purchaser's covenants, warranties or
representations to Seller under the Agreement. In connection
therewith, Purchaser may assign this Agreement (but not its
obligations hereunder) to the Trustee, may cause the Purchase
Price to be delivered in escrow to the Trustee pursuant to the
Trust Agreement and may take such other actions as may be
necessary and proper to consummate such like-kind exchange.
(ii) Purchaser acknowledges that Seller may sell the Property as part
of a like-kind exchange under terms and conditions that qualify
as an exchange within the meaning of the Code. Purchaser agrees
to execute and deliver any and all documents necessary and
proper in order for Seller to effectuate the like-kind exchange,
including, but not limited to, a Trust Agreement with a Trustee
at no cost, liability or expense to Purchaser and without
otherwise affecting Seller's covenants, warranties or
representations to Purchaser under this Agreement. In connection
therewith, Seller may assign this Agreement (but not its
obligations) to the Trustee, may cause the Purchase Price to be
delivered in escrow to the Trustee pursuant to the Trust
Agreement and may take such other actions as may be necessary
and proper to consummate such like-kind exchange.
25
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD.-4,
an Illinois limited partnership
By: First Capital Financial Corporation, its general partner
By:
------------------------------
PURCHASER:
CHASE SHOPPING CENTERS, INC., an Ohio corporation
By:
------------------------------
26
LIST OF EXHIBITS
----------------
A - Legal Description
B - Personal Property
C - Service Contracts
D - Joint Order Escrow Agreement
E - Permitted Exceptions
F - Xxxx of Sale
G - Assignment and Assumption of Leases
H - Assignment and Assumption of Service Contracts
I - Form Estoppel Certificate
J - Form Seller Estoppel Certificate
K - Notices of Violations of Laws
L - List of Litigation
M - Rent Roll
N - Outstanding Leasing Commissions
O - Assignment of Intangibles
P- Assignment of Maintenance Agreement
Q- Assignment of Toys REA
R- Assignment of May REA
R-1- Assignment of VICORP REA
S-1- REA Certificate (KRC)
S-2- REA Certificate (Toys)
S-3- REA Certificate (VICORP)
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
PERSONAL PROPERTY
-----------------
LANDSCAPE EQUIPMENT OFFICE
------------------- ------
1 Snow Blower 1 Answering machine
1 Salt Spreader 1 Telephone
2 Fertilizer Spreader 1 Stapler
4 Squeegies 1 Desk
1 Window bucket 1 Chair
1 Metal rake 2 Metal trash liners
2 Snow shovels 4 Battery security lights
1 Broom
1 Big ladder (metal - 20')
1 Flashlight
1 Hose sprayer
2 Tape measures
1 Hammer
2 Hand saws
1 Paint brush
1 Wheelbarrow
1 Edger
1 5 gal. Yellow paint
1 Light bulb pole
1 Bucket
1 Hose Nozzle
6 Barricade signs
EXHIBIT C
SERVICE CONTRACTS
-----------------
Vendor Date of Contract Service Provided
------- ------------------ ------------------
ADT 7/27/94 Monitor Fire Alarm
Mishawaka Tree 1/1/99 Janitorial
Mishawaka Tree 1/1/99 Landscaping
Mishawaka Tree 8/13/98 Snow Removal
Mishawaka Tree 4/1/99 Sweeping/Trash Removal
St. Xxxxx Inc. ________ X-mas Decorations
Superior Waste Services 4/5/99 Waste Removal
EXHIBIT D
JOINT ORDER ESCROW AGREEMENT
----------------------------
INDIAN RIDGE PLAZA
MISHAWAKA, INDIANA
Date: ________ ____,1999
TO: Chicago Title & Trust Company
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
The amount of One Hundred Fifty Thousand Dollars ($150,000.00) (together with
any subsequent additional deposit, the "Escrow Deposit") is deposited with you
in escrow on behalf of ___________________, the "Purchaser" under that certain
Real Estate Sale Agreement (the "Contract"), dated _________ ____, 1999, with
First Capital Institutional Real Estate, Ltd. - 4, an Illinois limited
partnership, as the "Seller", with respect to the purchase and sale of the
property commonly known as Indian Ridge Plaza, Mishawaka, Indiana.
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a
joint order by Seller and Purchaser as to the disposition of the Escrow
Deposit; or (b) you are in receipt of a written demand (the "Demand") from
either Seller or Purchaser for the payment of the Escrow Deposit or any
portion thereof. Upon receipt of any Demand, you are directed to so notify
the non-demanding party, enclosing a copy of the Demand. If within five
(5) business days after the non-demanding party has received or is deemed
to have received your notice of your receipt of the Demand, you have not
received from the non-demanding party its notice of objection to the
Demand, then you are to disburse the Escrow Deposit as requested by the
Demand. If within said five business-day period you receive from the non-
demanding party its notice of objection to the Demand, then you are to
continue to hold the Escrow Deposit until you are in receipt of a joint
order as aforesaid, but after sixty (60) days you may deposit the Escrow
Deposit with a court of competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any court, and in case you obey
or comply with any such order, judgment or decree of any court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or
proceeding regarding this Escrow Agreement, to which you are or may at any
time be a party, the undersigned Seller and Purchaser agree that the non-
prevailing party shall pay to you upon demand
all reasonable costs and expenses incurred by you in connection herewith
but solely for costs incurred in your role as Escrowee.
3. Provided that the closing occurs, you shall not charge an escrow fee in
connection with your role as Escrowee hereunder. In the event that the
closing does not occur, you shall charge an escrow fee of no greater than
$150.00, with one-half of such fee to be paid by Seller and one-half of
such fee to be paid by Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
account with a federally-insured bank or savings and loan as association or
as otherwise directed by both Purchaser and Seller in writing. Any interest
earned on the Escrow Deposit, after you deduct your customary investment
charges, shall become and be deemed to be a part of the Escrow Deposit.
The FEIN of Purchaser is ___________________.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for Seller, Purchaser and escrowee as herein provided,
together with copies to the attorneys for Seller and Purchaser at the
addresses for such attorneys set forth in Paragraph 6 below. All notices
given in accordance with the terms hereof shall be deemed received forty-
eight (48) hours after posting, or when delivered personally or otherwise
received. Either party hereto may change the address for receiving
notices, requests, demands or other communication by notice sent in
accordance with the terms of this Section 11.F.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for Purchaser is:
Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
Tower at Erieview, Suite 2600
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx
00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
The attorney for Seller is:
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
2
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that Escrowee may rely solely upon this Escrow
Agreement.
[signature page to Joint Order Escrow Agreement]
PURCHASER:
ADDRESS OF PURCHASER:
3
[signature page to Joint Order Escrow Agreement]
SELLER:
----------------------------
ADDRESS OF SELLER:
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
ACCEPTED THIS ______ DAY OF ____________, 1999
ACCEPTED:
Chicago Title & Trust Company, as Escrowee
By:
------------------------------
Title:
----------------------
ADDRESS OF ESCROWEE:
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
4
EXHIBIT E
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes, and assessments, not yet due to payable as of
Closing (but subject to apportionment or payment as described in Section
4.C. of the Agreement and with no exception related to the pending tax
complaint (but such complaint may be shown as a note)).
3. Rights of tenants under the leases shown on the Rent Roll delivered at
Closing, and those claiming by, through and under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Riparian rights, claims of accretion and similar matters.
EXHIBIT F
INDIAN RIDGE PLAZA
MISHAWAKA, INDIANA
XXXX OF SALE
------------
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of the ____ day of
_________, l999, by FIRST CAPITAL INSTITUTIONAL REAL ESTATE, LTD. - 4, an
Illinois limited partnership ("Seller"), having an office at Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, in favor of
______________________________________________ ("Purchaser"), having an office
at _________________________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. Contract. The "Contract" shall mean that certain Real Estate Sale
Agreement dated __________________, 199___, by and between Assignor, as Seller,
and Assignee, as Purchaser, for the purchase and sale of the Property.
3. Personal Property. The "Personal Property" shall mean the "Personal
Property", as defined in Contract, including the items of personal property set
forth in attached EXHIBIT C.
4. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers all of its right, title and interest in and to the
Personal Property to Purchaser. Seller covenants to warrant title to the
Personal Property set forth on Exhibit C attached hereto unto Purchaser and will
defend the same against the lawful claims of all persons claiming by, through or
under Seller, but not otherwise The Personal Property is transferred "AS IS,
WHERE IS" and ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY
EXCLUDED.
5. Limited Liability. This Assignment is subject to Section 11.Q. of the
Contract.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
----------------------------------
EXHIBIT G
ASSIGNMENT AND ASSUMPTION
OF LEASES
---------
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ______________ day of __________, 1999,
by and between First Capital Institutional Real Estate, Ltd. - 4, an Illinois
limited partnership ("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and ________________________, a
_______________________ ("Assignee"), with an office at
________________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, including the leases listed on the rent roll (the "Rent Roll")
attached to this Assignment as Exhibit B. "Lease" shall mean any one of the
Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
security deposits: (i) held by Assignor under the Leases in the form of a letter
of credit and/or in a segregated bank account, and (ii) held by Assignor under
the Leases for which Assignee has received a credit on the "Closing Statement"
(as defined in the Contract). The Security Deposits are set forth on Exhibit C
attached hereto.
4. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated __________, 1999 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
5. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases, and the Security Deposits arising from and after the date hereof.
6. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases arising from
and after the date hereof, and Assignee further assumes all liability of
Assignor for the proper refund or return of the Security Deposits.
7. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
8. Third Parties. Except as set forth in Section 1 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee rely hereon.
9. Limited Liability. This Assignment is subject to Section 11.Q. of the
Contract.
10. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
------------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of the Property
B - Rent Roll
C - Security Deposits
EXHIBIT H
---------
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment") is
entered into as of the ______________ day of __________, 1999, by and between
First Capital Institutional Real Estate Ltd., - 4, an Illinois limited
partnership ("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, and _______________________, a ________________
("Assignee"), with an office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on Exhibit B attached to this Assignment.
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Service Contracts arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts
arising from and after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of the
Contract.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
--------------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
EXHIBIT I
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
_______________________ ("Purchaser")
_______________________
_______________________
_______________________
_______________________
First Capital Institutional Real Estate, Ltd. - 0
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Institutional Real Estate, Ltd. - 4
("Landlord"), made in connection with the proposed sale of the property known as
Indian Ridge Plaza, Mishawaka, Indiana (the "Property") the undersigned hereby
certifies to Landlord and Purchaser as follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")] for [describe space] (the
"Premises").
2. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended.
3. The monthly [base][minimum] rent of $________ due under the Lease has
been paid through _______, 199__, and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 199__.
Percentage rent is payable in the amount of ___% of ______________ per
____________, over a breakpoint of $______________, and the last payment in the
amount of $__________ was made on _________, 19__.
4. The Landlord is not in default under the Leases nor to Tenant's
knowledge has any event occurred which, with the passage of time or the giving
of notice or both, would constitute a default by Landlord under the Lease.
5. The expiration date of the Lease is ____________________, 19___.
6. The amount of the security deposit currently held by Landlord under the
Lease is $ _______________.
7. There is no prepaid rent, except $ _____________ [explain to which
period and type of rent such prepayment relates].
8. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises, except as follows:
_____________________________.
9. The undersigned has no defenses, counterclaims, set-offs or concessions
against rent or charges due or to become due under the Lease and all duties of
an inducement nature required of Landlord by said Lease as of date hereof have
been fulfilled, including, without limitation, all construction allowances, rent
concessions and "free rent."
10. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to _____ month's abatement of
base rent, as of the date hereof] under the Lease and the improvements of the
Premises required to be furnished by the terms of the Lease as of date hereof
have been completed in all respects to the satisfaction of the undersigned.
11. [All work required to be performed by Landlord with respect to the
Lease and in connection with the Premises or otherwise has been completed by
Landlord to the satisfaction of Tenant except for _________________.] [All
amounts to be paid by Landlord under the Lease with respect to work in the
Premises has been paid by Landlord except for ________________.]
12. The "base year" for operating expense reimbursements and real estate
taxes under the Lease is 19___.
13. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
14. The undersigned is not in default under the Lease.
15. Tenant's current notice address under the Lease is:
________________________________________________________________________________
________________________________________________________________________________
Very truly yours,
______________________, Tenant
By:_____________________________________
___________________, Title
Date: ____________________, 1999
2
EXHIBIT J
FORM SELLER ESTOPPEL CERTIFICATE
--------------------------------
Ladies and Gentlemen:
Reference is herein made to that certain Real Estate Sale Agreement (the
"Agreement") dated ______________, 199___, by and between FIRST CAPITAL
INSTITUTIONAL REAL ESTATE, LTD. - 4, an Illinois limited partnership ("Seller"),
and _______________________, a _______________________ ("Purchaser"), for the
purchase and sale of the property known as Indiana Ridge Plaza, Mishawaka,
Indiana (the "Property"). All capitalized terms used herein but not defined
herein shall have the meanings ascribed to them in the Agreement. Pursuant to
Section 9 of the Agreement, Seller hereby certifies to Purchaser that Seller's
Actual Knowledge (as defined in the Agreement) as follows:
1. The undersigned is the landlord under a lease with ______________, as
tenant (the "Tenant"), dated ____________, 19___, [as amended by ___________,
dated __________, 19___ (collectively, the "Lease") [(the "Lease")] for
[describe space].
2. The Lease sets forth the entire agreement between Seller and the Tenant
with respect to the Premises, is in full force and effect and has not been
amended, modified or extended.
3. The monthly [base][minimum] rent of $_________ due under the Lease has
been paid through ______________, 199__, and all additional rent (consisting of
$_______ per month for estimated "Operating Expenses [as defined in the
Agreement]) due under the Lease has been paid through ____________, 199___.
Percentage rent is payable in the amount of ___% of ______________ per
____________, over a breakpoint of $______________, and the last payment in the
amount of $__________ was
4. Seller has not received written notice from the Tenant of any material
default by Seller under the Lease which has not been cured as of the date of
this certificate ("Certificate").
5. The expiration date of the Lease is __________, 19___.
6. The amount of the security deposit currently held by Seller under the
Lease is $____________.
7. There is no prepaid rent, except $___________ [explain to which period
and type of rent such prepayment relates].
8. The Tenant has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises, except as follows:
______________________.
9. The Tenant has no defenses, counterclaims, set-offs or concessions
against rent or charges due under the Lease and all duties of an inducement
nature required of Landlord by said Lease as of date hereof have been fulfilled,
including, without limitation, all construction allowances, rent concessions and
"free rent."
10. Tenant has unconditionally accepted the Premises and [has commenced
payment of full rent] [or] [is entitled to ________ month's abatement of base
rent as of the date hereof] under the Lease and, the Tenant is the owner and
holder of the entire tenant's interest in the Lease and the improvements of the
Premises required to be furnished by the terms of the Lease as of date hereof
have been completed in all respects to the satisfaction of the Tenant.
11. [All work required to be performed by Seller with respect to the
Premises under the Lease has been completed by Seller, and such work has been
completed to the satisfaction of Tenant [or] [All amounts to be paid by Seller
under the Lease with respect to work in the Premises has been paid by Seller
except for _______________.]
12. The "base year" for operating expense reimbursements and real estate
tax reimbursements under the Lease is 19___.
13. The Tenant has no right of option pursuant to the Lease or otherwise to
purchase all or any portion of the Premises or the Property.
14. Tenant's current proper notice address under the Lease is:
________________________________________________________________________________
________________________________________________________________________________
This Certificate is executed by Seller solely for the benefit of Purchaser
and no third party shall have the benefit of any of the provisions of this
Certificate, nor is this Certificate made with the intent that any person other
than Purchaser shall rely thereon.
This Certificate is delivered to Purchaser in connection with, and subject
to the terms, provisions and limitations of Section 9 and Section 11.Q. of the
Agreement.
IN WITNESS WHEREOF, Seller has executed this Certificate as of the ____ day
of ___________, 1999.
2
EXHIBIT K
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
NONE
EXHIBIT L
LIST OF LITIGATION
------------------
NONE
EXHIBIT M
RENT ROLL
---------
EXHIBIT N
---------
LEASING COMMISSIONS
-------------------
NONE
EXHIBIT O
---------
ASSIGNMENT AND ASSUMPTION OF INTANGIBLES
----------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLES (this "Assignment") is
entered into as of the ______________ day of __________, 1999, by and between
First Capital Institutional Real Estate, Ltd., - 4, an Illinois limited
partnership ("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, and ______________________, a ________________
("Assignee"), with an office at __________________________________
______________________.
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza". Capitalized terms not defined herein shall have the
meanings ascribed to them in that certain Real Estate Sale Agreement dated
________________ between ___________________ and _____________________.
2. Intangibles. "Intangibles" shall mean, to the extent transferable,
all of Assignor's right, title and interest in and to all licenses and permits
issued by governmental authorities and held by Assignor relating to the use,
maintenance, occupancy or operation of the Property; and to the extent
transferable, all of Assignor's right, title and interest in and to the name
"Indian Ridge Plaza".
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Intangibles arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Intangibles arising
from and after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Intangibles, and Assignor
shall have no liability to Assignee in the event that any or all of the
Intangibles (i) are not transferable to Assignee or (ii) are canceled or
terminated by reason of this assignment or any acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of the
Contract.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation, its
general partner
By:
----------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
EXHIBIT P
---------
ASSIGNMENT AND ASSUMPTION OF MAINTENANCE AGREEMENT
--------------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF MAINTENANCE AGREEMENT (this "Assignment")
is entered into as of the ______________ day of __________, 1999, by and between
First Capital Institutional Real Estate Ltd., - 4, an Illinois limited
partnership as successor to Mishawaka Retail Associates Limited Partnership
("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, and _______________________, a
_____________________________________________________ ("Assignee"), with an
office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. Maintenance Agreement. "Maintenance Agreement" shall mean that
certain Maintenance Agreement dated June 12, 1987, between Toys "R" Us, Inc. and
Mishawaka Retail Associates Limited Partnership.
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Maintenance Agreement arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Maintenance
Agreement arising from and after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. Limited Liability. This Assignment is subject to Section 11.Q. of the
Contract.
8. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
---------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
EXHIBIT Q
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is entered into as of
the ______ day of __________, 1999, by and between First Capital Institutional
Real Estate Ltd., - 4, an Illinois limited partnership ("Assignor"), with an
office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and
_______________________, a ________________ ("Assignee"), with an office at
______________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. REA. "REA" shall mean the Reciprocal Easement and Operating Agreement
by and between Mishawaka Retail Associates Limited Partnership ("MRALP") and
Toys "R" Us, Inc. ("Toys") dated June 12, 1987, as amended by First Amendment to
Reciprocal Easement and Operating Agreement dated September 2, 1993 among Toys,
Seller, MRALP, Venture Stores, Inc. and Metropolitan Life Insurance Company and
by Second Amendment to Reciprocal Easement and Operating Agreement dated April
27, 1999 among Tru Properties, Inc., Seller, Vicorp Restaurants, Inc., K's
Merchandise Mart, Inc. and KRC Mishawaka 895, Inc., together with the
Development Agreement dated June 12, 1987 between Toys and MRALP and the
Maintenance Agreement dated June 12, 1987.
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the REA arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the REA arising from and
after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts
(i) are not transferable to Assignee or (ii) are canceled or terminated by
reason of this assignment or any acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of
that certain Real Estate Sale Agreement dated _____________ between Assignor and
_________________.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
-------------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
Prepared by and return to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
[NOTARY]
EXHIBIT R
---------
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is entered into as of
the _______day of __________, 1999, by and between First Capital Institutional
Real Estate Ltd., - 4, an Illinois limited partnership ("Assignor"), with an
office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and
_______________________, a ________________ ("Assignee"), with an office at
______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. REA. "REA" shall mean a Construction, Operation and Reciprocal
Easement Agreement dated September 14, 1987 between May and Mishawaka Retail
Associates Limited Partnership ("MRALP") (as amended by that certain Joint
Improvement Agreement dated September 14, 1987 between May and MRALP, that
certain Supplemental Agreement dated September 14, 1987 between May and MRALP,
that certain First Amendment to Construction, Operation and Reciprocal Easement
Agreement between Seller and Venture Stores, Inc. and that certain Second
Amendment to Construction, Operation and Reciprocal Easement Agreement dated
April 27, 1999 among K's Merchandise Mart, Inc., KRC Mishawaka 895, Inc. and
Seller).
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the REA arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the REA arising from and
after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts
(i) are not transferable to Assignee or (ii) are canceled or terminated by
reason of this assignment or any acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of
that certain Real Estate Sale Agreement dated _________________ between Assignor
and ________________.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
-----------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
Prepared by and return to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
[NOTARY]
EXHIBIT R-1
-----------
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is entered into as of
the _______day of __________, 1999, by and between First Capital Institutional
Real Estate Ltd., - 4, an Illinois limited partnership ("Assignor"), with an
office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and
_______________________, a ________________ ("Assignee"), with an office at
______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Mishawaka, County of St. Xxxxxx, State of Indiana, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Indian Ridge Plaza".
2. REA. "REA" shall mean Reciprocal Easement Agreement dated January 19,
1989 between Mishawaka Retail Associates Limited Partnership and Assignor, as
amended by Amendment to Reciprocal Easement Agreement dated September 28, 1993
between Assignor and VICORP Restaurants, Inc. ("Vicorp") and by Second Amendment
to Reciprocal Easement Agreement dated April 27, 1999 between Assignor and
Vicorp.
3. Assignment. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the REA arising from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the REA arising from and
after the date hereof.
5. Enforcement. If Assignor or Assignee resorts to a court of law or
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Third Parties. Except as set forth in Section 9 of this Assignment,
no third party shall have the benefit of any of the provisions of this
Assignment, nor is this Assignment made with the intent that any person or
entity other than Assignor or Assignee shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11.Q. of
that certain Real Estate Sale Agreement dated _________________ between Assignor
and ________________.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INSTITUTIONAL REAL
ESTATE, LTD. - 4, an Illinois limited partnership
By: First Capital Financial Corporation,
its general partner
By:
---------------------------
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
Prepared by and return to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
[NOTARY]
EXHIBIT S-1
_______________________ ("Purchaser")
_______________________
_______________________
_______________________
_______________________
First Capital Institutional Real Estate, Ltd. - 0
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Institutional Real Estate, Ltd. - 4
("Seller"), made in connection with the proposed sale of the property known as
Indian Ridge Plaza, Mishawaka, Indiana (the "Property") the undersigned hereby
certifies to Seller and Purchaser as follows:
1. The undersigned ("TRU") is the successor to Toys "R" Us, Inc. under a
Reciprocal Easement and Operating Agreement by and between Mishawaka Retail
Associates Limited Partnership and Toys "R" Us, Inc. dated June 12, 1987, as
amended by First Amendment to Reciprocal Easement and Operating Agreement dated
September 2, 1993 among Toys "R" Us, Inc., Seller, Mishawaka Retail Associates
Limited Partnership, Venture Stores, Inc. and Metropolitan Life Insurance
Company and by Second Amendment to Reciprocal Easement and Operating Agreement
dated April 27, 1999 among Tru Properties, Inc., Seller, Vicorp Restaurants,
Inc., K's Merchandise Mart, Inc. and KRC Mishawaka 895, Inc. together with the
Development Agreement dated June 12, 1987 between Toys and MRALP and the
Maintenance Agreement dated June 12, 1987(collectively, the "REA").
2. The REA is in full force and effect and has not been amended, modified
or extended.
3. Seller is not in default under the REA.
4. TRU hereby consents to the assignment of that certain that certain
Maintenance Agreement dated June 12, 1987, between Toys "R" Us, Inc. and
Mishawaka Retail Associates Limited Partnership from Seller to Purchaser.
5. The undersigned is not due any amounts under the REA as of the date
hereof
Very truly yours,
TRU Properties, Inc.
By:_____________________________________
___________________, Title
Date: ____________________, 1999
EXHIBIT S-2
_______________________ ("Purchaser")
_______________________
_______________________
_______________________
_______________________
First Capital Institutional Real Estate, Ltd. - 0
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Institutional Real Estate, Ltd. - 4
("Seller"), made in connection with the proposed sale of the property known as
Indian Ridge Plaza, Mishawaka, Indiana (the "Property") the undersigned hereby
certifies to Seller and Purchaser that to the best of its actual knowledge:
1. The undersigned is the successor to The May Department Stores Company
("May") under a Construction, Operation and Reciprocal Easement Agreement dated
September 14, 1987 between May and Mishawaka Retail Associates Limited
Partnership ("MRALP") (as amended by that certain Joint Improvement Agreement
dated September 14, 1987 between May and MRALP, that certain Supplemental
Agreement dated September 14, 1987 between May and MRALP, that certain First
Amendment to Construction, Operation and Reciprocal Easement Agreement between
Seller and Venture Stores, Inc. and that certain Second Amendment to
Construction, Operation and Reciprocal Easement Agreement dated April 27, 1999
among K's Merchandise Mart, Inc., KRC Mishawaka 895, Inc. and Seller
[collectively, the "REA"].
2. The REA is in full force and effect and has not been amended, modified
or extended.
3. Seller is not in default under the REA.
4. The undersigned is not due any amounts under the REA as of the date
hereof.
Very truly yours,
KRC Mishawaka 895, Inc.
By:_____________________________________
___________________, Title
Date: ____________________, 1999
EXHIBIT S-3
_______________________ ("Purchaser")
_______________________
_______________________
_______________________
_______________________
First Capital Institutional Real Estate, Ltd. - 0
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Institutional Real Estate, Ltd. - 4
("Seller"), made in connection with the proposed sale of the property known as
Indian Ridge Plaza, Mishawaka, Indiana (the "Property") the undersigned hereby
certifies to Seller and Purchaser that to the best of its actual knowledge:
1. The undersigned ("VICORP") is successor to Mishawaka Retail Associates
Limited Partnership ("MRALP") under Reciprocal Easement Agreement dated January
19, 1989 between MRALP and Seller ("REA").
2. The REA is in full force and effect and has not been amended, modified
or extended.
3. Seller is not in default under the REA.
4. The undersigned is not due any amounts under the REA as of the date
hereof.
Very truly yours,
Vicorp Restaurants, Inc.
By:_____________________________________
___________________, Title
Date: ____________________, 1999
