Exhibit 10.367
Saucon Valley Square
Northampton County, PA
Eighth Amendment to Agreement
EIGHTH AMENDMENT TO AGREEMENT
THIS EIGHTH AMENDMENT TO AGREEMENT (the "Eighth Amendment") is made and
entered into as of the 7th of September, 2004, by and between SAUCON VALLEY
SQUARE L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. Seller hereby agrees to credit Buyer in the sum of Two Million Two
Hundred Forty-five Thousand Nine Hundred Ninety-three and 06/100
($2,245,993.06) Dollars at Closing.
2. This Eighth Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Eighth Amendment. Each person executing
this Eighth Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Eighth Amendment. Any counterpart to this Eighth
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Eighth Amendment, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Eighth Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-------------------------
Title: EVP
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By:
---------------------------
Name: [ILLEGIBLE]
-------------------------
Title: Authorized Agent
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Seventh Amendment to Agreement
SEVENTH AMENDMENT TO AGREEMENT
THIS SEVENTH AMENDMENT TO AGREEMENT (the "Seventh Amendment") is made and
entered into as of the 27th of August 2004, by and between SAUCON VALLEY SQUARE
LP., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "September 1, 2004 at 5:00
p.m. Chicago time" and inserting the date of "September 7, 2004 at
5:00 p.m. Chicago time" therein solely for the purpose of Buyer's
satisfaction of the following described matters: (a) the
organizational structure and form and substance of transfer
documentation in regard to the condominium association; and (b) the
resolution of the water and sewer issues raised by the August 26,
2004 letter from Lower Saucon Authority.
2. The "Closing Date", as defined in Section 11.1 of the Agreement is
hereby amended by deleting "The Closing Date shall be the first
business day after the expiration of the Due Diligence Period" and
inserting "The Closing Date shall be September 7, 2004."
3. The "Purchase Price", as defined in Section 3 of the Agreement is
hereby amended by deleting "Sixteen Million Ninety-two Thousand Five
Hundred Eighty ($16,092,580.00) Dollars" and inserting "Sixteen
Million Forty-two Thousand Five Hundred Eighty and ($16,042,580.00)
Dollars."
4. This Seventh Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of
Saucon Valley Square
Northampton County, PA
Seventh Amendment to Agreement
which taken together shall constitute one Seventh Amendment. Each
person executing this Seventh Amendment represents that such person
has full authority and legal power to do so and bind the party on
whose behalf he or she has executed this Seventh Amendment. Any
counterpart to this Seventh Amendment may be executed by facsimile
copy and shall be binding on the parties.
Except as modified herein by this Seventh Amendment, the Agreement shall
remain unmodified and in full force and effect.
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: XXXX X. XXXXXX
-------------------------
Title: Vice President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
------------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------
Title: Acquisition Officer
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Sixth Amendment to Agreement
SIXTH AMENDMENT TO AGREEMENT
THIS SIXTH AMENDMENT TO AGREEMENT (the "Sixth Amendment") is made and
entered into as of the 26th of August, 2004, by and between SAUCON VALLEY SQUARE
L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004 ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "August 26, 2004 at 5:00 p.m.
Chicago time" and inserting the date of "September 1, 2004 at 5:00
p.m. Chicago time" therein solely for the purpose of Buyer's
satisfaction of the following described matters: (a) the
organizational structure and form and substance of transfer
documentation in regard to the condominium association; and (b) the
resolution of the water and sewer issues raised by the August 26,
2004 letter from Lower Saucon Authority.
2. The "Purchase Price", is defined in Section 3 of the Agreement is
hereby amended by deleting "Sixteen Million Ninety-two Thousand Five
Hundred Eighty ($16,092.580.00) Dollars" and inserting "Sixteen
Million Forty-two Thousand Five Hundred Eighty and ($16,042,580.00)
Dollars."
3. This Sixth Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Sixth Amendment. Each person executing
this Sixth Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Sixth Amendment. Any counterpart to this Sixth
Saucon Valley Square
Northampton County, PA
Sixth Amendment to Agreement
Amendment may be executed by facsimile copy end shall be binding on
the parties.
Except as modified herein by this Sixth Amendment, the Agreement
shall remain unmodified and in full force and effect.
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEest Real Estate Investment Trust, its
General Partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx Authorized Agent
------------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------
Title: Acquisition Officer
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Sixth Amendment to Agreement
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Sixth Amendment, the Agreement
shall remain unmodified and in full force and effect.
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: XXXX X. XXXXXX
-------------------------
Title: Vice President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By:
---------------------------
Name:
-------------------------
Title:
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Fifth Amendment to Agreement
FIFTH AMENDMENT TO AGREEMENT
THIS FIFTH AMENDMENT TO AGREEMENT (the "Fifth Amendment") is made and
entered into as of the 25th of August, 2004, by and between SAUCON VALLEY SQUARE
L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "August 25, 2004 at 5:00 p.m.
Chicago time" and inserting the date of "August 26, 2004 at 5:00 p.m.
Chicago time" therein.
2. This Fifth Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Fifth Amendment. Each person executing
this Fifth Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Fifth Amendment. Any counterpart to this Fifth
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Fifth Amendment, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Fifth Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: XXXX X. XXXXXX
-------------------------
Title: Vice President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
---------------------------
Name: G. Xxxxxx Xxxxxxx
-------------------------
Title: President
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Fourth Amendment to Agreement
FOURTH AMENDMENT TO AGREEMENT
THIS FOURTH AMENDMENT TO AGREEMENT (the "Fourth Amendment") is made and
entered into as of the 24th of August, 2004, by and between SAUCON VALLEY SQUARE
L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Xxxxxx agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "August 24, 2004 at 5:00 p.m.
Chicago time" and inserting the date of "August 25, 2004 at 5:00 p.m
Chicago time" therein.
2. This Fourth Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Fourth Amendment. Each person executing
this Fourth Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Fourth Amendment. Any counterpart to this Fourth
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Fourth Amendment, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Fourth Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P, a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxx
-------------------------
Title: Vice President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx Authorized Agent
------------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------
Title: Acquisition Officer
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Third Amendment to Agreement
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT TO AGREEMENT (the "Third Amendment") is made and
entered into as of the 23rd of August, 2004, by and between SAUCON VALLEY SQUARE
L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "August 23, 2004 at 5:00 p.m.
Chicago time" and inserting the date of "August 24, 2004 at 5:00 p.m.
Chicago time" therein.
2. This Third Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Third Amendment. Each person executing
this Third Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Third Amendment. Any counterpart to this Third
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Third Amendment, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Third Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxxxxx [ILLEGIBLE]
---------------------------
Name: Xxxxxxx [ILLEGIBLE]
-------------------------
Title: Senior Counsel
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By: /s/ [ILLEGIBLE]
---------------------------
Name: [ILLEGIBLE]
-------------------------
Title: [ILLEGIBLE]
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Second Amendment to Agreement
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT (the "Second Amendment") is made and
entered into as of the 17th of August 2004, by and between SAUCON VALLEY SQUARE
L.P., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC. ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated July 1, 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting "August 17, 2004 at 5:00 p.m.
Chicago time" and inserting the date of "August 23, 2004 at 5:00 p.m.
Chicago time" therein.
2. This Second Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Second Amendment. Each person executing
this Second Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Second Amendment. Any counterpart to this Second
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein by this Second Amendment, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Second Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------
Title: President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. [ILLEGIBLE] Authorized Agent
------------------------------------------
Name: Xxxxx X. [ILLEGIBLE]
-------------------------
Title: Acquisition Officer
------------------------
0
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx, XX
Amendment to Agreement
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into as
of the 11th of August 2004, "by and between SAUCON VALLEY SQUARE L.P., a Florida
limited partnership ("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC.
("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Sale
dated My 1. 2004, ("the Agreement"), for the sale and purchase of the property
commonly known as Saucon Valley Square Shopping Center located in Northampton,
Pennsylvania, as legally described by the Agreement (the "Property")
WHEREAS, Buyer and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 1.7 of the
Agreement is hereby amended by deleting the words "on the 30th
business day thereafter or the first business day after such 30th day
if such 30th day is not a business day," and inserting the date of
"August 17, 2004 at 5:00 pm Chicago time" therein.
2. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Amendment
represents that such person has full authority and legal power to do
so and bind the party on whose behalf he or she has executed this
Amendment. Any counterpart to this Amendment may be executed by
facsimile copy and shall be binding on the parties.
Except as modified herein by this Amendment, the Agreement shall remain
unmodified and in full force and effect
(SIGNATURE PAGE FOLLOWS)
Saucon Valley Square
Northampton County, PA
Amendment to Agreement
Seller:
SAUCON VALLEY SQUARE, L.P., a Florida
limited partnership
By: MART Saucon LLC, its General Partner
By: MART Limited Partnership, its Sole Member
By: KimEast Real Estate Investment Trust, its
General Partner
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxxxx
-------------------------
Title: Vice President
------------------------
Purchaser:
INLAND REAL ESTATE ACQUSITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. [ILLEGIBLE] Authorized Agent
------------------------------------------
Name: Xxxxx X. [ILLEGIBLE]
-------------------------
Title: Acquisitions Associate
------------------------
2
AGREEMENT OF SALE
THIS AGREEMENT made this 1 day of July, 2004, between SAUCON VALLEY SQUARE
L.P., a Florida Limited Partnership, with an office at 0000 Xxx Xxxx Xxxx Xxxx,
Xxxxx 000 (P. O. Xxx 0000), Xxx Xxxx Xxxx, Xxx Xxxx 00000 (hereinafter,
"Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois Corporation,
with an office at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 (hereinafter,
"Buyer").
WHEREAS, Seller owns a portion of the shopping center commonly known as
Saucon Valley Square, located in Bethlehem, Pennsylvania (the "Shopping Center")
and Seller wishes to sell and Buyer wishes to buy Seller's entire right title
and interest in the Shopping Center;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. DEFINITIONS. The following expressions shall have the meanings set
forth below:
1.1 "Real Estate" means the fee interest in the land described
on EXHIBIT 1 and all of the buildings and other improvements constructed
thereon.
1.2 "Space Lease(s)" means all lease(s), license(s), concessions
or other occupancy or use agreements, including all modifications, addenda and
supplements thereto and guarantees thereof, applicable to any part of the Real
Estate. All existing Space Leases as of the date hereof are listed on attached
EXHIBIT 2.
1.3 "Property" means collectively all of Seller's rights and
interests in the Real Estate, the Space Leases and the other assets described in
ARTICLE 2 hereof.
1.4 "Closing Date" means the date on which Closing occurs.
"Closing" means the event whereby title to the Property is actually conveyed by
Seller to Buyer.
1.5 "Service Contracts" means all written agreements pursuant to
which goods, services or supplies are furnished on a recurring basis for the
operation of the Real Estate and are approved by Buyer during the Due Diligence
Period (as hereinafter defined). Copies of such Service Contracts are attached
as EXHIBIT 3.
1.6 "Escrow Agent" means Chicago Title and Trust Company, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, Attn: Xxxxx Xxxxxx, Escrow Agent. Chicago
Title and Trust Company may also be hereinafter referred to as the "Title
Company".
1.7 "Due Diligence Period" means a period of time commencing on
the date a fully executed copy of this Agreement is received by Buyer in
accordance with Article 13 hereof and expiring at midnight, New York time, on
the 30th business day thereafter or the first business day after such 30th day
if such 30th day is not a business day.
1.8 "Permitted Exceptions" means those certain title exceptions
set forth in EXHIBIT 6 attached hereto that are approved by Buyer in accordance
with the terms of Article 6 hereof.
1.9 "Personal Property" means all personal property and
equipment (if any) owned by Seller and located on the Real Estate.
1.10 "Deposit" means a deposit, to be paid by Buyer to Escrow
Agent upon the execution hereof, in the amount of TWO HUNDRED THOUSAND
($200,000.00) DOLLARS, plus all interest earned thereon.
2. SALE AND PURCHASE. In accordance with the provisions of this
Agreement, Seller agrees to sell, convey, assign and transfer to Buyer, and
Buyer agrees to purchase and acquire from Seller, subject to the Permitted
Exceptions and Space Leases, all of Seller's right, title and interest in and
to: (a) the Real Estate, (b) the Space Leases, (c) any Personal Property, (d)
any land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Real Estate, (e) any strips or gores adjoining the
Real Estate, (f) all appurtenances and hereditaments appertaining to the Real
Estate (g) the right to use, in common with others the name "Saucon Valley
Square Shopping Center" provided Buyer's use of same is done in a commercially
reasonable manner in connection with the first class operation of the Property.
3. PURCHASE PRICE. The "Purchase Price" for the Property shall be
SIXTEEN MILLION, NINETY-TWO THOUSAND, FIVE HUNDRED EIGHTY ($16,092,580.00)
DOLLARS plus the Contingent Amount if any, as set forth in Section 11.6 hereof,
shall be paid as follows:
A. (i) Upon the execution of this Agreement Buyer shall
pay the Deposit to Escrow Agent by bank check to the order of Escrow Agent or
wire transfer of federal funds for immediate credit.
(ii) The Deposit shall be invested by Escrow Agent in a
sound financial institution's money market fund or account which pays interest
or dividends, in Escrow Agent's name separate from its personal and business
accounts. All investment decisions shall be made by Buyer. If no Closing occurs,
all interest or dividends earned shall be paid to the party entitled to the
escrowed proceeds, which party shall pay all income taxes thereon. The parties
shall furnish Escrow Agent with their respective tax identification numbers. At
Closing, Escrow Agent shall pay the Deposit (together with all interest earned
thereon) to Seller; and the principal portion of the Deposit shall be a credit
against the Purchase Price (but no such credit shall be given for the interest
earned on such principal portion of the Deposit, if any, which shall be the
property of Buyer). All escrow fees, if any, charged by Escrow Agent shall be
equally shared by Seller and Buyer. Escrow Agent shall hold the Deposit as set
forth above unless either Seller or Buyer makes a written demand upon Escrow
Agent for the Deposit accompanied by an affidavit signed by the party making the
demand stating sufficient facts to show that said party is entitled to receive
the Deposit pursuant to the terms of this Agreement. Upon receipt of such
demand, Escrow Agent shall give ten (10) days written notice to the other party
of such demand and of Escrow Agent's intention to remit the Deposit to the party
making the demand on the stated date, together with a copy of the affidavit. If
Escrow Agent does not receive a written objection before the proposed date for
remitting the Deposit, Escrow Agent is hereby authorized to so remit. If,
however, Escrow Agent actually receives written objection from the other party
before the proposed date on which the Deposit is to be remitted, Escrow Agent
shall continue to hold the Deposit until otherwise directed by joint written
instructions from Seller and Buyer or until a final judgment of an appropriate
court. In the event of a dispute, Escrow Agent may place the Deposit with an
appropriate court and, after giving written notice of such action to the
parties, Escrow Agent shall have no further obligations with respect to the
Deposit. The parties acknowledge that Escrow Agent is acting as a stakeholder at
their request and for their convenience, that Escrow Agent shall not be deemed
to be the agent of either of the parties, and the Escrow Agent shall not be
liable to either of the parties for any act or omission on its part unless taken
or suffered in bad faith or in willful or negligent disregard of this Agreement.
Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent
harmless from and against all costs, claims and expenses, including reasonable
attorney' fees, incurred in connection with the faithful performance of Escrow
Agent's duties hereunder. Escrow Agent acknowledges agreement to the provisions
of this Agreement applicable to it by signing on the signature page of this
Agreement. Notwithstanding the foregoing, Buyer shall have the right to deliver
a notice of termination of this Agreement to Escrow Agent and Seller on or prior
to the expiration of the Due Diligence Period and Escrow Agent shall be
authorized, immediately upon receipt of such notice and verification of Seller's
receipt of same, to return the Xxxxxxx Money to Buyer. Buyer agrees to return
all documents provided to Buyer by or on behalf of Seller to Seller within
fifteen (15) days of Tenant's delivery of the notice of termination to Escrow
Agent and Seller.
B. At Closing, and subject to the terms and provisions of this
Agreement, Buyer shall pay Seller the balance of the Purchase Price by wire
transfer of immediately available federal funds into a so-called "New York
Style" closing escrow to be established by the Escrow Agent. Seller shall
furnish Escrow Agent with wire transfer instructions prior to Closing.
C. In connection with any Personal Property included in the
sale, the parties agree that no part of the Purchase Price shall be deemed to
have been paid by Buyer on account thereof.
4. CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD.
4.1 (A) Buyer shall at Closing accept the Property in AS IS
physical condition as exists on the date hereof, subject to reasonable wear and
tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer
will have the Due Diligence Period to inspect the Shopping Center or cause an
inspection thereof to be made on Buyer's behalf and it is understood and agreed
that neither Seller nor any person acting or purporting to act for Seller has
made or now makes any representation as to the physical condition (latent or
patent or otherwise), income, expense, operation, legality of current rents, or
any other matter of thing affecting or relating to the Shopping Center except as
herein specifically set forth. Buyer hereby expressly acknowledges that except
as expressly set forth herein, no such representations have been made and Buyer
further agrees to take the Shopping Center "as is" as of the date hereof and
subject to normal use, wear, tear, and deterioration between now and Closing.
Buyer agrees that Seller is not liable or bound in any manner by any financial
or written statements,
2
representations, real estate brokers' "set-ups", or information pertaining to
the Shopping Center furnished by any real estate broker, agent, employee,
trustee, servant or other person, unless the same are specifically set forth
herein. It is understood and agreed that all understandings and agreements
heretofore had between the parties are hereby merged in this Agreement which
alone fully and completely expresses their agreement and that the same is
entered into after full investigation, neither party relying upon any statement
or representation made by the other not embodied in this Agreement.
(B) SELLER'S REQUIRED PRE-CLOSING DELIVERIES
Seller shall, as soon as practicable after the date of this Agreement but not
later than five (5) business days after the date of this Agreement,, deliver to
Buyer the following (which are referred to herein as "Pre-Closing Deliveries"):
(a) copy of the Space Leases affecting the Property; (b) a certification from
Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the
name of each tenant at the Property and the date of the Space Leases and any
modifications or amendments thereto, the amount of rent payable by each tenant
throughout the term of its respective Space Lease, any concessions granted to
the tenants, the amount of security deposits, if any, (or a certification that
Seller is not holding any security deposits), the expiration date of the Space
Leases, and the existence of any options to renew or extend the term of the
Space Leases or to purchase all or any part of the Property and such information
with respect to any subtenant if Seller has knowledge thereof; (c) a
certification by Seller that there are no employees at the Property; (d) a
certification by Seller that, other than as disclosed to Buyer, there are no
service agreements, maintenance contracts or other similar agreements affecting
the Property; (e) copies of the most recent tax xxxx for the Property, together
with copies of any notice of assessments received by Seller, or any other
information relative to taxes assessed against the Property; (f) copies, if any,
of any environmental reports, architectural drawings, warranties, guarantees,
plans and specs or any similar document in Seller's possession relating to the
Property; (g) copies of any insurance policies or certificates insuring the
Property, whether purchased by Seller or by the tenants under the Space Leases;
(h) copies of certificates of occupancy for each tenant at the Property and
copies of any building code violations received by Seller with respect to the
Property during the last two years and evidence reasonably acceptable to Buyer
that such violations have been corrected, or a certification from Seller that it
has not received any notice of building code violations; (i) the materials
described on Buyer's Due Diligence Checklist, attached hereto as Exhibit 12, and
made a part hereof; (j) as applicable (depending upon the number of years the
Property has been operating), an operating statement for the Property for the
two calendar years prior to the year of the date hereof, and monthly operating
statements for the Property for each month of the year of the date hereof. Such
statements shall include reasonable detail of all items of income and expense,
other than construction costs as well as all items of capital expenditures made
during the relevant periods, other than capital expenditures made in connection
with the initial construction of the Shopping Center, and (k) an engagement and
representation letter signed by Seller and prepared by and for the benefit of
Buyer's auditors substantially in the form attached hereto as Exhibit 18, and
made a part hereof.
4.2 On and after the date hereof, Buyer shall have access to the
Property for the purpose of making engineering, survey or non-intrusive
inspections and independent investigations; and Seller will on receipt of
reasonable prior written notice, provide Buyer with access to information within
its possession or control with respect to the Property, including (without
limitation) full and accurate copies of Space Leases, Service Contracts, title
information or instruments, and books and operating records of the Shopping
Center. Buyer agrees to defend, indemnify and hold Seller harmless from any
personal injury or property damage caused by Buyer in doing any testing,
inspections or survey and such obligation shall survive the Closing or sooner
termination of this Agreement. Buyer shall give Seller true, accurate and
complete copies of all written reports prepared by third parties resulting from
Buyer's inspections and investigations.
4.3 (a) Buyer shall have the Due Diligence Period within
which to inspect and examine the Real Estate, the Space Leases, and the Service
Contracts.
(b) In the event that during the Due Diligence Period,
Buyer, in its sole judgment, and absolute discretion, determines that Buyer is
not satisfied with the condition of the Real Estate, the Property, the Space
Leases, the Ground Leases, or the Service Contracts then, prior to the end of
the Due Diligence Period, Buyer shall have the right by giving written notice to
Seller and Escrow Agent to cancel and terminate this Agreement without liability
except as set forth in Sections 4.2 and 15.8. Upon receipt of such notice prior
to the end of the Due Diligence Period, Escrow Agent shall deliver the Deposit
to Buyer. In the event Buyer fails to give such notice prior to the end of the
Due Diligence Period, Buyer's right to cancel this Agreement pursuant to this
Section 4 shall lapse.
5. ADJUSTMENTS AND PRORATIONS.
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5.1 Seller shall be entitled to all income produced from the
operation of the Property which is allocable to the period prior to the Closing
Date and shall be responsible for all expenses allocable to that period; and
Buyer shall be entitled to all income and responsible for all expenses allocable
to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items
of income and expense with respect to the Property shall be prorated in
accordance with the foregoing provisions and the rules for the specific items
set forth hereafter:
5.1.1 Seller shall arrange for a billing under all those
Service Contracts for which fees are based on usage and with utility companies
for a billing for utilities, to include all utilities or service used up to the
Closing Date, and Seller shall pay the resultant bills. In the event any of the
Service Contracts set forth in EXHIBIT 3 cover periods beyond the Closing Date
the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or
betterment assessments and personal property taxes shall be prorated for those
taxes which are due and payable as of the Closing Date. In the event that as of
the Closing Date the actual tax bills for the tax year or years in question are
not available and the amount of taxes to be prorated as aforesaid cannot be
ascertained, then rates, millages and assessed valuation of the previous year,
with known changes, shall be used; and after the Closing occurs and when the
actual amount of taxes for the year or years in question shall be determinable,
such taxes will be re-prorated between the parties to reflect the actual amount
of such taxes.
5.1.3 Rentals and other payments (other than "percentage
rent" and common area maintenance charges which are dealt with in SECTION 5.1.4
and Section 5.1.6) which are payable pursuant to Space Leases shall be prorated
on a per diem basis as and when collected (subject to the provisions of Section
5.3). However as to the following tenants ("the Credit Tenants") Superfresh and
Blockbuster, Seller shall at closing, receive a credit in an amount equal to
real estate taxes that have accrued as of the Closing Date but are either unpaid
or not yet due and payable from the Credit Tenants as of the Closing Date.
Except as provided in the preceding sentence in respect of the Credit Tenants.
Buyer shall not be obligated to make any payment or give any credit to Seller on
account of or by reason of any rental or other payments which are unpaid as of
the Closing Date, but shall be required to turn over Seller's share of the same
within ten (10) days if, as and when received by Buyer after the Closing;
likewise, Seller agrees to turn over Buyer's share of any payments received from
tenants applicable to any period from and after the date of Closing within ten
(10) days of Seller's receipt of same; this provision shall survive Closing.
5.1.4 Percentage rent; if any, payable under each Space
Lease shall be prorated with respect to the lease year thereunder in which
Closing occurs on a per diem basis as and when collected. Any percentage rent
collected by Buyer including any percentage rent which is delinquent and
pertaining to (i) an entire lease year or accounting period of a tenant under a
Space Lease which ends on a date prior to the Closing Date, or (ii) that portion
of a lease year or accounting period of such tenant covering a period prior to
the Closing Date where such lease year or accounting period begins prior to the
Closing Date and ends thereafter shall in both cases be paid to Seller within
ten (10) days of receipt by Buyer; and if any tenant's Space Lease provides for
offsets or deductions against percentage rent, then such offsets or deductions
shall be prorated in the same manner as the percentage rent itself is prorated.
This provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and
other utilities charges to which SECTION 5.1.1 cannot be applied, and the
governmental licenses, permits and inspection fees and operating expenses
relating to the Shopping Center (expressly excluding therefrom, however, such
expenses relating to the initial construction of the Shopping Center), shall be
prorated on a per diem basis.
5.1.6 Common area maintenance expenses and charges shall
be prorated. Seller shall be responsible for all common area expenses and
charges incurred prior to the Closing Date, and Buyer shall be responsible for
the same accruing on and subsequent to the Closing Date. All common area expense
payments made by each tenant and such charges paid under its Space Lease for the
entire lease year during which the Closing occurs, including end-of-year
adjustments, if any, shall be prorated between Seller and Buyer in the following
manner: Not later than three (3) days prior to Closing, Seller shall deliver to
Buyer, with regard to each Shopping Center tenant required to pay common area
charges ("CAM Charges") under its lease, a detailed computation showing all CAM
Charge expenses incurred by Seller for the period from the beginning of each
such tenant's then current billing period for CAM Charges (e.g., calendar year,
lease year, etc.) through the Closing Date, any CAM estimated payments or
charges collected by Seller relating to such tenant (hereinafter "CAM
Estimates"), and a xxxx for the tenant's pro rata share of CAM Charges (i.e.,
for CAM charges through the Closing Date net of any such CAM Estimates held by
Seller), together with all invoices and other evidence
4
documenting such CAM Charges in detail required by such tenant's lease. Buyer
shall send any such bills to tenants promptly following Closing, in which event
such tenant shall pay any amount shown due directly to Seller, and except as
otherwise stated in Section 5.3.3 below Buyer shall have no responsibility to
collect same. However, if any tenant rightfully refuses to pay such xxxx for CAM
Charges due through the Closing Date, then Buyer shall resubmit such xxxx to any
such tenant at the same time as Buyer next submits Buyer's own xxxx to any such
tenant; and any payment thereafter made by any such tenant on account of CAM
Charges shall belong to and be forwarded within ten (10) days of its receipt to
Seller until Seller's xxxx is paid in full.
Any CAM Estimates for any tenant shall be retained
by Seller up to the amount of the pre-Closing CAM Charges payable by such tenant
as evidenced by such bills and computations delivered by Seller at Closing, and
Buyer shall receive a credit for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments(other
than monthly real estate tax estimates or installments), security deposits paid
pursuant to Space Leases, electric, gas, sewer and water deposits deposited with
Seller by tenants, (including any accrued interest required under any Space
Lease on all of the foregoing, unless Seller is entitled to retain the benefit
thereof) under any Space Leases, license agreements or concession agreements
relating to the Property, shall all belong to Buyer and all shall be assigned
and delivered to Buyer at Closing, whereupon Seller shall be released from all
liability with respect thereto. At Seller's option, Buyer shall receive a cash
credit in the amount of all Security Deposits to be delivered to Buyer at
Closing, and Seller may retain same.
5.1.8 Buyer shall not be responsible for any charges,
salaries, vacation pay or fringe benefits of employees of Seller prior to or
following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing
provisions shall be made on the basis of a written statement or statements
delivered to Buyer by Seller and approved by Buyer. In the event any prorations,
apportionments or computation shall prove to be incorrect for any reason, then
either party shall be entitled to an adjustment to correct the same, provided
that it makes written demand on the one from who it is entitled to such
adjustment within two (2) years after the erroneous payment or computation was
made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be
treated as follows:
5.3.1 Buyer and Seller agree to treat all base or
minimum rental payments received from a tenant as applicable to base or minimum
rent which was owed by that tenant, if any, first for the month prior to the
month in which Closing occurs and next for the month in which Closing occurs
until the base or minimum rental amount due to Seller for such periods have been
collected. In the event that there remains any unpaid base or minimum rent for a
period prior to such periods, all payments of base or minimum rent received from
such tenant shall be applied to sums owed Buyer before any part thereof shall be
treated as belonging to Seller. In the event that there remains any unpaid
tenant receivable other than base or minimum rent (including without limitation
any tax, CAM, insurance or percentage rent payments) for any period prior to
Closing, all payments received from any tenant in arrears (whether base or
minimum rent or any other amount) shall be applied first to any such sums owed
Buyer from such tenant before any part thereof shall be treated as belonging to
Seller.
5.3.2 In the event that any tenant of Seller or Buyer
shall hereafter apply or shall have heretofore applied for relief under the
provisions of any bankruptcy or similar laws for the protection of debtors, the
provisions of Section 5.3.1 shall not apply, and the parties shall have the
right to seek collection of their respective accounts, their entitlements being
determined by the Closing and the other provisions of this Agreement. Neither
party shall have the right to enter into any transactions that purport to
compromise claims belonging to the other, without the other party's prior
written consent.
5.3.3 "If at the Closing Date any tenants owe
Seller any money (i.e. reimbursements to Seller for payment of liens or
violations on the Property that were created by tenant(s) but that
Seller is required hereunder to satisfy in order to effectuate the sale
of the Property or rent arrears (which shall include CAM and tax
reimbursements)), Seller shall have the right, subsequent to the
Closing, to collect such sums directly from the tenants, including
bringing lawsuits against the tenants (at Seller's sole expense) for
such collection (except that Seller is prohibited from bringing a
lawsuit against any tenant(s) to collect rent in arrears for a period
of thirty (30) days after such dispute or arrears has arisen (the"
Buyer Collection Period"); instead Buyer agrees to use commercially
reasonable efforts to collect such arrears on Seller's behalf, if Buyer
is unsuccessful in collecting the
5
tenant arrears by the expiration of the Buyer Collection Period, then
Seller shall have the right to collect such sums directly form the
tenants including bringing lawsuits against the tenants (at Sellers
sole expense) for such collection, however, Seller agrees that any such
legal action or collection shall not include any disturbance of the
possession, use or occupancy of the tenants or any right to evict the
tenants, whether pursuant to the lease provisions or otherwise, and
Buyer shall at Seller's expense join in any lawsuit and/or also
participate or cooperate with Seller in its collection attempts. Buyer
will (at Seller's expense) join in such a lawsuit or action only if the
same does not include or require disturbance of the possession of any
tenants."
5.3.4 In the event Seller has granted rent concessions
to tenants under space lease(s) that would extend beyond the Closing Date, Buyer
shall receive credit for same.
5.4 Intentionally Deleted.
5.5 The provisions of this Article 5 will survive Closing.
6. TITLE AND SURVEY.
6.1 Seller shall convey and Buyer shall accept, subject to the
right of Buyer to review and approve all title matters, documents and plats of
record in regard to the condition of title to the Property, title such as the
Title Company will be willing to approve and insure subject only to Permitted
Exceptions as provided for in this Agreement. Buyer acknowledges that it has
heretofore received copies of Seller's existing title insurance policy for the
Real Estate (the "Existing Title Policy") and of Seller's existing survey of the
Real Estate (the "Existing Survey"). Promptly following the execution of this
Agreement, Buyer may (if it so elects) obtain (the costs of which shall be split
equally by Buyer and Seller) updates of the Existing Survey to the certification
standards described upon the Surveyor's certification attached hereto as Exhibit
13 and made a part hereof (such updated survey hereinafter referred to as the
"Updated Survey"); if Buyer does obtain such an Updated Survey, Buyer shall
cause it to be certified to Seller and Buyer shall promptly furnish Buyer,
Seller and the Title Company with a copy thereof. Promptly following the
execution of this Agreement, Buyer shall also (the costs of which shall be split
equally by Buyer and Seller) obtain a commitment for ALTA Form B Leasehold Title
Insurance (the "Title Commitment"); and Buyer shall promptly cause the Title
Company to furnish Seller and Buyer with true accurate and complete copies
thereof (including true, accurate and complete copies of all underlying title
exception documents referenced therein). Not later than the expiration of the
Due Diligence Period, Buyer shall give Seller written notice ("Buyer's
Title/Survey Notice") of any title exceptions which are contained in the Title
Commitment and/or the Survey which are not Permitted Exceptions. Failure by
Buyer to give Buyer's Title/Survey Notice (or to object to any matter referenced
in the Title Commitment) to Seller on or before said date shall constitute
Buyer's final and irrevocable approval of the condition of title (and to any
such unobjected to matter) in and to the Real Estate. If Buyer's Title/Survey
Notice shall be timely given Seller shall have a period of fifteen (15) days
following Seller's receipt of Buyer's Title/Survey Notice, to commence to
remove, correct, cure or satisfy (provided Seller does in fact elect to so
remove, correct, cure or satisfy) any title exceptions that were identified in
Buyer's Title/Survey Notice as not being Permitted Exceptions, it being
nevertheless agreed that Seller shall have no obligation to undertake any action
or to incur any expense in order to effectuate any such removal, correction,
cure or satisfaction (except that notwithstanding the foregoing Seller shall be
required to remove or discharge any fee mortgages or deeds of trust, as well as
any other liens in an ascertainable dollar amount). In the event that Seller
elects not to attempt to remove, correct, cure or satisfy the matters raised in
Buyer's Title/Survey Notice, or if having elected to do so, does not within
thirty (30) days thereafter, (or such additional time as is reasonably necessary
(not to exceed an additional fifteen (15) days without Buyer's written consent)
to remove, correct, cure or satisfy the matter(s) so raised using commercially
reasonable good faith efforts) effectuate any such removal, correction, cure or
satisfaction as aforesaid (hereinafter called "title correction"), Buyer shall
have the right at its sole option either (a) to terminate this Agreement, in
which event the Deposit shall be returned to Buyer and neither party shall
thereafter have any further liability hereunder, or (b) to accept such title as
is disclosed by the Title Commitment and/or Survey without title correction and
without Survey correction and without any reduction to the Purchase Price,
thereby waiving any rights against Seller with respect thereto. Said election
shall be made by Buyer within three (3) days following Buyer's receipt of
written notification by Seller that Seller has not effectuated (or has elected
not to effectuate) title correction. In the event that Seller (even though under
no duty to do so) shall undertake title correction and/or Survey correction as
aforesaid, and shall be successful, this Agreement shall continue in full force
and effect and Buyer shall close the transaction contemplated hereby in
accordance with the terms hereof. In the event that Seller shall only be
partially successful in obtaining title and/or Survey correction, Buyer shall
have the same alternative rights as Buyer would have in the event Seller had
declined to seek title and/or Survey correction (as set forth above). Buyer
6
shall make its election within three (3) days after Buyer's receipt of written
notice from Seller to Buyer of the extent to which title and/or the Survey has
been corrected.
6.2 If at the Closing Date there may be any liens or
encumbrances which render title unmarketable or otherwise are not permitted
title exceptions hereunder, and which Seller is obligated or desires to pay and
discharge, Seller may use any portion of the balance of the Purchase Price to
satisfy the same, provided Seller shall simultaneously either deliver to Buyer
at the Closing instruments in recordable form and sufficient to satisfy such
liens and encumbrances of record together with the cost of recording or filing
said instruments; or provided that Seller has made arrangements with the title
company in advance of Closing, Seller will deposit with said company sufficient
monies, acceptable to and required by it to insure obtaining and the recording
of such satisfactions and the issuance of title insurance to Buyer either free
of any such liens and encumbrances, or with insurance against enforcement of
same out of the insured premises. The existence of any such liens and
encumbrances shall not be deemed objections to title, if Seller shall comply
with the foregoing requirements. Unpaid liens for taxes, water charges, sewer
rents and assessments which are the obligation of Seller to satisfy and
discharge shall be objections to title, and thus the amount thereof, plus
interest and penalties thereon, shall be deducted from the Purchase Price to be
paid hereunder and allowed to Buyer, subject to the provisions for apportionment
of taxes, water charges and sewer rents contained herein. Unpaid franchise tax
of any entity in the chain of title to which such tax is applicable, or estate,
income or other taxes which may be liens against the Property as of the Closing
Date shall not be an objection to title, provided the title company agrees to
insure against the collection of said taxes from the Property and in such event
if required by the title company, Seller agrees to deposit at Closing with the
title company an amount deemed reasonable by it to secure the payment of such
unpaid franchise tax, or other tax.
6.3 In the event that Seller is unable to convey title in
accordance with the terms of this Agreement, or if any representation of Seller
herein is untrue in a material respect on the Closing Date and Seller does not
correct same (it being understood Seller will be entitled to a reasonable
adjournment of Closing for such purpose, not to exceed fifteen (15) days), the
sole responsibility of Seller will be to refund (or cause to be refunded by the
Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon
the making of such refund, this Agreement shall be deemed canceled, neither
party shall have any further claim against the other by reason of this
Agreement, except that Buyer shall remain liable on its obligations under
Sections 4.2 and 15.8.
6.4 The costs of obtaining the Title Commitment, the policy of
title insurance to issue at Closing (in form subject to Buyer's sole discretion,
and agreed to prior to the expiration of the Due Diligence Period) with premium
up to the amount of the Purchase Price including the costs of any excess
coverage or endorsements Zoning 3.1; Survey; Access, Usury, Location, Tax ID,
Contiguity, EPA, Comprehensive and Doing Business, to the extent available or
applicable, shall be split equally between Buyer and Seller (the "Title Policy")
and costs of updated Survey shall be split equally between Buyer and Seller,
expressly excluding therefrom, however, the costs to release any monetary
encumbrance affecting the Property and any title curative endorsements which
shall be borne by Seller.
7. DAMAGE. DESTRUCTION OR REQUIRED ALTERATION.
7.1 Prior to Closing, in the event of any damage to or
destruction of all or part of the Real Estate (notice of which shall be given to
Buyer by Seller as soon as practicable following its occurrence), then Seller
shall have the right (but not the obligation) to adjourn the Closing Date for up
to sixty (60) days in order to repair or replace such damage or destruction,
except that if the cost of such repair or replacement exceeds ten percent of the
Purchase Price, then in any such case (i) Buyer shall have the right to
terminate this Agreement by giving Seller written notice of its intention to do
so, such notice by Buyer to Seller to be given not later than three (3) days
after Buyer shall have received the notice from Seller of such aforesaid
occurrence, (in which event the Deposit shall forthwith be returned to Buyer,
whereupon this Agreement shall be null and void and of no further force or
effect whatsoever, except that Buyer shall remain liable on its obligations
under Sections 4.2 and 15.8); or (ii) if Buyer elects not to (or does not have
the right to) terminate this Agreement, this Agreement shall continue in full
force and effect except that at Closing Buyer shall receive an abatement of the
Purchase Price in an amount equal to Seller's reasonable good faith estimate of
the amount required to repair and restore all unrepaired damage (and Seller
shall retain all rights to collect insurance proceeds for such loss). Buyer may
elect to have its architect provide a good faith estimate of the amount required
to repair and restore all unrepaired damage. If Seller's estimate disagrees with
Buyer's architect's estimate, the parties shall select another architect to make
a final determination of the amount required to repair and restore all
unrepaired damage and both parties shall be bound by the third architect's
determination. The party whose architect differs most from the third architect's
determination shall pay the third architect's fee.
7
7.2(a) In the event that any governmental authority having
jurisdiction of all or part of the Real Estate has notified Seller before the
Closing that some alteration of or addition to the Real Estate is required to be
made by law, rule or regulation (notice of which shall be given to Buyer by
Seller as soon as practicable after its receipt) or otherwise requires a cure of
a violation, then (subject to the provisions of Section 7.2(b)) Seller shall
have the right (but not the obligation) to undertake such alteration or addition
or cure; provided, however, that if the cost of such alteration or addition or
cure shall exceed the sum of one (1%) percent of the Purchase Price, then in
such event Seller may either elect to pay the entire cost and cure the same
before the Closing or may decline to undertake the same, in which event Buyer
shall have the option, exercisable within three (3) days following notice from
Seller of the requirement and Seller's refusal to comply therewith, (i) to
terminate this Agreement by giving Seller notice thereof (in which event the
Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be
null and void and of no further force or effect whatsoever, except that Buyer
shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if
such notice of termination is not timely given, to proceed with the Closing, in
which event the Purchase Price shall be reduced by Seller's reasonable good
faith estimate of the cost to cure, up to the maximum sum of one percent of the
Purchase Price. Buyer may elect to have its engineer provide a good faith
estimate of the cost to cure. If Seller's estimate disagrees with Buyer's
architect's estimate, the parties shall select a another engineer to make a
final determination of the cost to cure and both parties shall be bound by the
third engineer's determination. The party whose engineer differs most from the
third engineer's determination shall pay the third engineer's fee.
(b) Notwithstanding the foregoing provisions of Section
7.2(a), Seller may elect but shall have no obligation to cure or pay for, , any
violation which either (i) is first placed (i.e., notice first given to Seller
or first placed of record) after the date of this Agreement, or (ii) is the
responsibility of a Shopping Center tenant to cure or discharge pursuant to its
Space Lease. In the event Seller elects to cure or pay for such violation(s),
Seller shall have a period of fifteen (15) days after receipt of notice of the
violation to commence to cure or pay for same, and shall proceed with diligence
to cure same, however, if Seller elects to cure a violation, and Seller
reasonably believe that the Closing Date (as hereinafter defined) will need to
be extended more than thirty (30) days to effectuate the cure, then Seller shall
not commence to cure the violation then Buyer may elect to (i) complete the
purchase without any adjustment in the Purchase Price or (ii) terminate the
Agreement in such event, unless Buyer agrees to the required extension. In the
event Seller elects not to cure or pay for such violation, the sole
responsibility of Seller will be to refund (or cause to be refunded by the
Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon
the making of such refund, this Agreement shall be deemed cancelled, neither
party shall have any further claim against the other by reason of this
Agreement, except that Buyer shall remain liable on its obligations under
Sections 4.2 and 15.8.
8. EMINENT DOMAIN. In the event that any eminent domain proceedings
shall be commenced prior to the Closing affecting (i) any of the parking area(s)
within the Real Estate or any access roadway serving the Real Estate that is not
replaced by an access roadway in a comparable location with respect to the Real
Estate; or (ii) which is of such a nature as would permit any tenant occupying
leased premises to cancel its Space Lease, Buyer shall have the right to
terminate this Agreement, by written notice given to Seller within three (3)
days after the event, (in which case the Deposit shall forthwith be returned to
Buyer, whereupon the Agreement shall be null and void and of no further force or
effect whatsoever). In any case wherein Buyer has the right to terminate this
Agreement pursuant to this Section 8 and Buyer elects not to terminate, or in
any case wherein Buyer does not have the right to terminate, Buyer and Seller
shall consummate Closing on the Closing Date, without any reduction to or
abatement of the Purchase Price, and all theretofore unpaid condemnation awards
shall belong to Buyer.
9. NO ASSIGNMENT. Buyer shall not have the right to assign this
Agreement or its rights under this Agreement without obtaining in each instance
Seller's prior written consent. Notwithstanding the foregoing, Buyer shall have
the right, without Seller's consent, to assign its entire right, title and
interest in and to this Agreement, expressly including the Deposit, to any
entity controlling, controlled by, or under common control with Buyer or Inland
Real Estate Trust, Inc., a Maryland corporation, (an "Affiliate"); provided
that, not less than three (3) business days prior to Closing, Seller receives an
executed assignment and assumption agreement, in a commercially reasonable form
, which expressly assigns the Deposit and in which such assignee expressly
assumes performance of this Agreement for the benefit of Seller. No such
assignment or designation shall relieve or release Buyer from any obligations
under this Agreement (whether arising pre- or post-closing), and Buyer shall
remain jointly and severally liable for all of same together with such assignee.
10. COVENANTS AND REPRESENTATIONS. As of the date hereof, and to the best
of Seller's knowledge, Seller covenants, warrants and represents to Buyer the
following:
8
10.1 Seller has obtained any consents from partners and/or
shareholders required to permit the transactions contemplated by this Agreement
including the sale of the Property to Buyer.
10.2 There is no pending or threatened litigation affecting the
Property brought by or against Seller that would materially adversely affect
Buyer except as set forth in EXHIBIT 7 attached hereto and made a part hereof.
If Seller is served with process or receives notice that litigation relating to
the Property has been commenced against it, Seller shall promptly notify Buyer.
The provisions of this Section shall not apply to any litigation relating to the
property involving personal injury or property damage(s) covered by insurance.
10.3 The Space Leases described in EXHIBIT 2 comprise all the
Space Leases presently existing, and same have not been materially amended or
modified except (if at all) as may be set forth in Exhibit 2. Seller has neither
given nor received any outstanding, uncured notice of default to or from any
Space Lease tenant. Following a date which is five (5) business days prior to
the expiration of the Due Diligence Period (the "Cut Off Date"), and prior to
Closing, Seller will not, without the prior written consent of Buyer(which Buyer
agrees not to reasonably withhold or delay), cancel (except for default by a
tenant) or materially amend any Space Lease, or enter into any new Space Lease
or any Service Contract affecting the Property not cancelable on 30 days notice.
On or prior to the Cut Off Date, Seller may take any of the foregoing actions
without Buyer's consent, provided it delivers a copy of any new documentation
evidencing same to Buyer not later than three (3) business days prior to the
expiration of the Due Diligence Period.
10.4 Except as otherwise expressly provided herein, there are no
contracts or agreements affecting the Property other than the Service Contracts,
Space Leases, and Permitted Exceptions; and there are no on-site employees or
hired persons in connection with the management, operation or maintenance of the
Property; and Buyer shall have no obligation, liability or responsibility with
respect to charges, salaries, vacation pay, fringe benefits or like items
subsequent to Closing, nor with any management or employment agreements with
respect to the Property.
10.5 The signatories to this Agreement on behalf of Seller have
the power and authority to enter into this Agreement and to bind Seller to the
provisions hereof.
10.6 As of the date hereof: (i) to XXX XXXXXXX'X knowledge Seller
is not aware of and has receive no building code violation notices with respect
to the Property (other than notices of violations which have been removed or
corrected); and (ii) to XXX XXXXXXX'X knowledge Seller is not aware of and has
received no notices of any action or governmental proceeding in connection with
eminent domain, or for a zoning change, which would affect the Property; and
(iii) to Xxx Xxxxxxx'x knowledge Seller is not aware of any structural problems
in the improvements constructed upon the Property and the exterior structures
are in good condition and repair.
11. THE CLOSING.
11.1 The Closing shall be held at the Title Company's offices (at
the address set forth above) at 9:00 A.M. on the Closing Date. The Closing Date
shall be the first business day after the expiration of the Due Diligence
Period.
11.2 At Closing, Buyer shall pay the Purchase Price as adjusted
in accordance with the provisions of this Agreement; and Buyer shall execute and
deliver such other instruments as Seller may reasonably request in connection
with or to consummate the transactions contemplated by this Agreement.
11.3 (A) At Closing, Seller shall deliver to Buyer the
following:
(a) Intentionally Deleted.
(b) A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer's obligation to
remit the remainder of the Purchase Price to the Title Company on the Closing
Date and effectuate the transaction contemplated herein that on or before the
third (3rd) business day prior to the Closing Date, Buyer shall have received an
estoppel certificate from each tenant under a Space Lease who occupies more than
eight thousand (8,000) square feet (hereinafter "Anchor Tenant"), as well as
from seventy (70%) percent of the tenants occupying less than eight thousand
(8,000) square feet (each such tenant hereinafter referred to as a "Non-Anchor
Tenant") (collectively such Non-Anchor Tenants hereinafter referred to as the
"Minimum Threshold"), each such estoppel to be dated not more than 30 days prior
to the Closing Date, in either the form required by its Space Lease, or
otherwise in the form attached hereto as Exhibit 10, and made a part
9
hereof, as well as Seller's estoppel in the form of Exhibit 10 for any tenant
(other than an Anchor Tenant and so long as the Minimum Threshold is met) not
delivering an estoppel as required to achieve one hundred percent (100%)
estoppel delivery for the Property. If Seller is unable to obtain any such
required estoppel from a tenant prior to Closing, Seller shall deliver its own
estoppel in the form attached as Exhibit 10 (provided, however, Buyer shall not
be obligated to accept Seller's estoppel for any Anchor Tenant nor for more than
thirty (30%) percent of the Non-Anchor Tenants at the Property), which shall
survive Closing (but if post-Closing Seller delivers any such tenant estoppel,
Seller shall be relieved from responsibility under any Seller estoppel it
delivered regarding all matters confirmed by such tenant estoppel). If Seller
fails to deliver any such required estoppel, Seller shall have no liability by
reason thereof provided, however that Seller shall not be required to deliver
its own estoppel containing an assertion that Seller in good faith believes to
be untrue, and Buyer's sole right shall be to terminate this Agreement and to
obtain a refund of the Deposit as set forth in Section 14.3. If any estoppel
certificate is dated earlier than forty (40) days prior to the Closing Date, in
lieu of requiring Seller to obtain a new estoppel from the subject tenant(s),
which shall be required of Seller if any estoppel certificate is dated earlier
than sixty (60) days prior to the Closing Date, Buyer agrees that Seller may
deliver, at Closing, its representation that to the best of Seller's knowledge,
the facts in said estoppel remain true in all material respects as of the
Closing Date.
(d)Intentionally deleted.
(e) It shall be a condition precedent to Buyer's obligation to remit
the remainder of the Purchase Price to the Title Company on the Closing Date and
effectuate the transaction contemplated herein that on or before the third (3rd)
business day prior to the Closing Date, Buyer shall have received an assignment
of all warranties and guaranties, if available, for materials and workmanship
benefiting the Property, including an acknowledgment by the material and/or
service provider of the acceptance of the assignment where required by the terms
of the warranty and/or guaranty, with all fees and costs of such assignment (and
inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being
paid at the sole cost and expense of Seller; any such costs or fees in excess of
One Thousand Dollars ($1,000.00) being shared equally between the parties
hereto.
(B) At Closing, Seller and Buyer shall each execute and
deliver to the other the following:
(a) An Assignment and Assumption Agreement for the Space Leases
in the form of EXHIBIT 4 attached hereto.
(b) An Assignment and Assumption Agreement for the Service
Contracts, in the form of EXHIBIT 5 attached hereto.
(c) Notices to tenants, in the form attached hereto as Exhibit
14, and made a part hereof, notifying them of the sale and (if
applicable) the transfer of their security deposit to Buyer.
(d) Intentionally Deleted.
11.4 Each party shall pay its own legal fees and travel and
lodging expenses in connection with this transaction. Seller and Buyer shall
split the payment in accordance with local custom for all transfer taxes and the
parties shall each pay 1/2 of the documentary stamps or recording charges for
transfer of title to the Real Estate and the "New York Style" closing escrow
fees charged by the Title Company.
11.5 Buyer also agrees to cooperate with Seller to permit the
conveyance of the Property to be consummated as a part of a transaction intended
by Seller to qualify as a tax-free exchange under Section 1031 of the Internal
Revenue Code and in conjunction therewith to execute such documents as Seller
may reasonably request (such cooperation may include, without limitation,
accepting a conveyance from a party other than Seller and paying the Purchase
Price to a party other than Seller). In no event, however, shall (a) Buyer bear
any expense associated with the exchange transaction, (b) Buyer be obligated to
take title to Seller's exchange property, (c) the consummation of such tax-free
exchange materially delay the conveyance to Buyer of the Property, (d) Buyer
have any liability to Seller or any other party for the qualification of the
exchange transaction for tax-free exchange treatment under Section 1031 of the
Internal Revenue Code or under any other provision and (e) the consummation of
such tax free exchange relieve Seller of any of its obligations hereunder.
12. BROKERS.
10
Each party represents and warrants to the other that it dealt with no
broker other than CB Xxxxxxx Xxxxx (the "Broker") in connection with this
transaction. Seller shall pay Broker pursuant to a separate agreement. Each
party agrees to defend, indemnify and hold the other harmless from and against
any and all loss, liability and expense, including reasonable attorney's fees,
that the indemnitee may incur arising by reason of the above representation by
the indemnitor being false. The provisions of this Section 12 shall survive
Closing.
13. NOTICES. All notices, demands, requests, consents, approvals or other
communications (for the purpose of this Section collectively called "Notices")
required or permitted to be given hereunder or which are given with respect to
this Agreement shall be valid only if in writing and sent by registered or
certified United States mail, return receipt requested, postage prepaid, or
delivered by Federal Express or UPS courier service, addressed as follows:
To Seller: 0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Phone:(000)000-0000
Fax:(000)000-0000
with a copy to:
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Phone: (000)000-0000
Fax:(000)000-0000
To Buyer: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx Xxxxxxxx, XX 00000
Phone: (000)000-0000
Fax:(000)000-0000
Attention: G. Xxxxxx Xxxxxxx
and a copy to: Xxxxx Xxxxxxx Fax: (000)000-0000
with a copy to:
The Inland Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxx, General Counsel
Facsimile Nos: (000)000-0000
x Copy via facsimile:
Xxxxxxx X. Xxxxxxxxx (000)000-0000
To Escrow Agent: CHICAGO TITLE & TRUST COMPANY
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Escrow Agent
Phone:(000)000-0000
Fax:(000)000-0000
or such other address as such party shall hereafter have specified by Notice
given by the same means. Any Notice shall be deemed given when delivered to the
carrier delivering same, delivery charges prepaid, and properly sealed and
addressed. Any Notice may also be given by telecopier to the following numbers:
Seller (000)000-0000, Buyer (000)000-0000, (000)000-0000, (000)000-0000 and
(000)000-0000;, and Escrow Agent (000)000-0000, Attn: Xxxxx Xxxxxx, provided
that a "hard copy" of such notice is sent within one (1) business day after such
telecopier transmission in the manner above set forth; and in the case of notice
by telecopier (with confirmation sent as aforesaid), notice shall be deemed
given upon electronic confirmation of receipt.
14. DEFAULTS
11
14.1 If Closing does not take place because of Buyer's default
the Deposit shall be retained by Seller as agreed upon liquidated damages as
Seller's sole remedy for such default, and thereupon this Agreement shall be
null and void and of no further force or effect whatsoever (except that Buyer
shall remain liable on its obligations under Sections 4.2 and 15.8). The parties
hereto expressly agree that Seller's actual damages in the event of a default by
Buyer would be extremely difficult or impractical to ascertain and that the
amount of the Deposit represents the parties' reasonable estimate of such
damages.
14.2 If Closing does not occur due to Seller's willful default
and refusal to close despite Buyer's willingness to do so (such willingness
includes waiver by Buyer of any uncured title objection properly made by Buyer
under Section 6.1 or material breach of representation or warranty by Seller)
(such willful default and refusal being hereinafter referred to as a "Seller
Default"), then Buyer, as its sole and exclusive right and remedy as a result of
such Seller Default, may elect to either (i) cancel this Agreement, in which
event the Deposit shall be returned to Buyer, Seller shall be liable for any
title and survey costs, as well as environmental site assessment, appraisal and
legal fees theretofore incurred by Buyer (however Seller shall not be obligated
to reimburse Buyer more than Twenty-Five Thousand Dollars ($25,000.00) in the
aggregate for such environmental site assessment, appraisal and legal fees), and
thereupon no party shall have any further right or obligation hereunder (except
that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8),
or (ii) Buyer may enforce specific performance of this Agreement without any
reduction or abatement of the Purchase Price, together with the right of Buyer
to collect its reasonable attorney's fees and costs of suit, subject to the
limitation on Landlord's reimbursement of same described above.
14.3 Subject to the provisions of Article 14.1 and 14.2 above, if
Closing should not occur for any reason whatsoever other than a default by Buyer
or a Seller Default (including without limitation by reason of a material breach
of representation or warranty of Seller or an uncured title objection properly
made by Buyer under Section 6.1, or a failure to deliver any tenant estoppel
required hereunder) which Buyer is not willing to waive, then in such event this
Agreement shall be and be deemed cancelled, the Deposit shall be returned to
Buyer, and thereupon Buyer shall have no other right, by way of damages or
otherwise, against Seller notwithstanding the existence of any failure or breach
of representation, warranty, covenant, title, provision of estoppel or other
Closing condition (provided that Buyer will remain liable on its obligations
under Sections 4.2 and 15.8).
15. MISCELLANEOUS.
15.1 The representations, warranties and covenants contained in
Article 10 of this Agreement shall survive delivery of the deed for a period of
twelve (12) months. Other than the survival of such representations, warranties
and covenants, the acceptance of the deed by Buyer shall be conclusive evidence
of the performance by Seller of all of the provisions of this Agreement to be
performed by Seller.
15.2 This Agreement (including the Exhibits attached hereto)
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous understandings,
if any, with respect thereto.
15.3 This Agreement may not be canceled, modified, changed or
supplemented, nor may any obligation hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing.
15.4 The parties do not intend to confer any benefit hereunder on
any person, firm or corporation other than the parties hereto and their
respective successors or assigns.
15.5 "TIME IS OF THE ESSENCE" with respect to all provisions of
this Agreement, with the sole exception that each of Buyer and Seller shall be
entitled to a single adjournment (not to exceed two (2) business days in any
event) of the Closing Date.
15.6 This Agreement shall extend to and be binding upon the legal
representatives, heirs, executors, administrators and, subject to the provisions
of this Agreement, the permitted assigns of the parties hereto.
15.7 Intentionally Deleted.
15.8 Buyer represents and warrants that it will keep all
information and/or reports and/or documents obtained from Seller or its agents
(including without limitation the rent and other terms of the Space Leases), or
related to or connected with the Property (including without limitation the
existence of this Agreement and the Purchase Price) strictly confidential and
will not disclose any such
12
information to any person or entity (except for Buyer's attorneys, consultants
and advisors and except as required by law; provided that any such parties
similarly agree to treat such material confidentially), without the prior
written consent of Seller. In amplification and not in limitation of the
foregoing, Buyer may not make any public disclosure of the existence or terms of
this Agreement prior to Closing.
15.9 This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with, the laws of the State wherein the
Property is located. This Agreement shall be construed in accordance with its
plain meaning and without reference to any maxim or rule of interpretation
providing that a writing should be construed against the party responsible for
the drafting thereof.
15.10 This Agreement shall not be recorded or filed in the public
records of any jurisdiction by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
15.11 This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed
an original.
16. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION.
In addition to the conditions precedent described in Article 11.3(A)
(c), (d) & (e), Buyer's obligation to remit the remainder of the
Purchase Price to the Title Company on the Closing Date and effectuate
the transaction contemplated hereunder is subject to and contingent
upon the following:
(a) The Title Company's issuing or committing to issue the Title
Policy insuring that fee simple title to the Property is vested
in Buyer as required in Article 6 hereof;
(b) The completeness, truth and accuracy in all material respects and
to the best of XXXXXXX IX'S OR XXXXXXX XXXXXXXX'X knowledge of
the Rent Roll, and any certifications, schedules, covenants and
statements prepared and executed by Seller as part of the
Pre-Closing Deliveries, the completeness in all material respects
and to the best of Seller's knowledge of the Space Leases
delivered by Seller as part of the Pre-Closing Deliveries, the
completeness, truth and accuracy in all material respects and to
the best of Seller's knowledge as of Closing, of the
representations and warranties of Seller contained in Section 10
hereof, and the performance by Seller, to the extent possible by
the date of Closing, of the covenants contained in Section 10
hereof. It shall be a condition to Buyer's obligation to close
with respect to the Property that, at the Closing, Seller shall
deliver to Buyer a Certificate that shall confirm, to the best of
Seller's knowledge, the truth and accuracy in all material
respects, as of Closing, of Seller's representations contained in
this Agreement, and the representations contained in such
certificate, as well as any continuing obligations of Seller
hereunder, shall survive the Closing for a period of twelve (12)
months; and
(c) That as of the date of closing: (i) neither Seller, as landlord
under the Space Leases, nor any tenant thereunder, shall be in
material default under the terms of any Space Lease and (ii) and
eighty-five percent (85%) of the Property gross leaseable area
being leased to tenants.
[SEE SIGNATURE BLOCKS ON NEXT PAGE]
13
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
day and year first above written.
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.
WITNESSES:
/s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxxx Authorized Agent
---------------- ------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Acquisitions Associate
/s/ [ILLEGIBLE] Date of Execution: June 29, 2004
---------------- -------------
SELLER:
SAUCON VALLEY SQUARE, L.P.
BY: MART SAUCON LLC, ITS GENERAL PARTNER
BY: MART LIMITED PARTNERSHIP, ITS SOLE MEMBER
BY: KIMEAST REAL ESTATE INVESTMENT TRUST, ITS
GENERAL PARTNER
WITNESSES:
/s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxxxx
---------------- ----------------------
Name: XXXXX X. XXXXXXXX
Title: Vice President
/s/ [ILLEGIBLE] Date of Execution: July 1, 2004
---------------- ------------
Escrow Agent signs to confirm its
agreement with the provisions of
Section 3(A)(ii) hereof:
WITNESSES: ESCROW AGENT:
CHICAGO TITLE & TRUST COMPANY
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxxxx
---------------- ----------------------
Name: Xxxxx Xxxxxx
Title: AVP
/s/ [ILLEGIBLE] Date of Execution: 7/5/04
---------------- ------------
14
SCHEDULE OF EXHIBITS
1. Real Estate
2. Space Leases
3. Service Contracts
4. Assignment and Assumption Agreement - Space Leases
5. Assignment and Assumption Agreement - Service Contracts
6. Permitted Exceptions
7. Schedule of Litigation
8. Intentionally Deleted
9 Intentionally Deleted
9. Intentionally Deleted
10. Form of Tenant and Guarantor Estoppel
11. Form of REA estoppel
12. Due Diligence Checklist
13. Surveyor's Certification
14. Tenant Notice Letter
15. Intentionally Deleted
16. Intentionally Deleted
17. Intentionally Deleted
18. Audit Letter
15
EXHIBIT 1
REAL ESTATE
[TO FOLLOW]
See Site Plan
16
LEGAL DESCRIPTION
ALL THOSE CERTAIN units in the property known, named and identified in the
Declaration referred to below as "Saucon Valley Square Condominium", located in
the Township of Lower Saucon, County of Northampton and Commonwealth of
Pennsylvania, which has heretofore been submitted to the provisions of the
Penna. Uniform Condominium Act, 68 P.S.A. 3103, et seq., by the recording in the
Office for the recording of Deeds in and for Xxxxxxxxxxx Xxxxxx xx Xxxxxx, XX of
a Declaration dated September 3, 1997 and recorded October 17, 1997 in Record
Book 1997-1, Page 114559, (erroneously referred to in deed of prior record as
1997-5, page 357) being and designated in such Declaration as Unit Nos.
2,3,4,5,6,7,8 inclusive as more fully described in such Declaration, together
with the proportionate undivided interest in the Common Elements (as defined and
set forth in such Declaration), applicable to each of the aforesaid units.
[GRAPHIC]
EXHIBIT 2
SPACE LEASES
17
EXHIBIT 3
SERVICE CONTRACTS
EXHIBIT A
SAUCON VALLEY SQUARE SHOPPING CENTER
BETHLEHEM, PA
ANNUAL MONTHLY LEASE LEASE
BASE BASE RENT COMMENCEMENT EXPIRATION
TENANTS S.F. RENT RENT PER SQ.FOOT DATE DATE
---------------------------------------------------------------------------------------------------------------------------------
Super Fresh Food Market 47,827 657,621.00 54,801.75 $ 13.75 January-99 December-18
Blockbuster 5,140 103,468.00 8,622.33 $ 18.00 April-04 March-09
Foxes Hallmark 5,200 96,200.00 8,016.67 $ 18.50 March-04 February-09
Radio Shack 2,320 36,800.00 3,066.67 $ 15.86 April-04 March-09
Subway 1,200 22,050.00 1,837.50 $ 18.38 Xxxxx-00 0-00-00
Xxxx Rio's Restaurant 6,208 88,000.00 7,333.33 $ 14.18 December-98 December-08
Lafayette Ambassador 2,800 42,900.00 3,575.00 $ 15.32 April-04 March-08
Casa Mia Pizzeria 2,000 24,650.00 2,054.17 $ 17.33 February-04 January-09
Saucon Valley Cleaners 1,600 27,720.00 2,310.00 $ 17.33 January-99 January- 14
Buena Bistro 1,600 29,840.00 2,486.67 $ 18.65 March-04 May-09
Xxxxxxxxxx Jewelers 1,200 20,790.00 1,732.50 $ 17.33 January-04 December-13
Holiday Hair 1,200 20,790.00 1,732.50 $ 17.33 February-04 January-09
No. 1 Chinese Restaurant 1,200 25,080.00 2,090.00 $ 20.90 February-99 March-09
Xxxxxx La & Yong La 1,200 24,000.00 2,000.00 $ 20.00 July-04 June-09
TOTALS 80,695 1,219,909.00
ADJACENT 32,000 SQUARE FOOT REGAL CINEMAS
(12/1/98 - 11/30/18) NOT OWNED
SCHEDULE OF SERVICE CONTRACTS
VENDOR CONTRACT DATE SERVICE DESCRIPTION
------ ----------------- -----------------------
X.X. XXXXXX, INC. February 17, 2004 Maintenance
M&M LAWN SERVICE, INC. March 26, 2004 Landscaping Services
EXHIBIT 4
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT, made this _________ day of_________________, 2004, by and
between SAUCON VALLEY SQUARE L.P., a Florida Limited Partnership, ("Assignor")
and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois Corporation ("Assignee").
WITNESSETH:
Assignor is landlord under all those certain leases described on Exhibit
"A" attached hereto and made a part hereof ("Leases") relating to the property
described on Exhibit "B" attached hereto and made a part hereof.
Assignor desires to assign to Assignee, and Assignee desires to accept the
assignment from Assignor of all of Assignor's right, title and interest in and
to the Leases.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto, intending to be legally bound hereby,
covenant and agree as follows:
1. Assignor hereby transfers, assigns and sets over unto Assignee all of
Assignor's right, title and interest in and to the Leases, including, without
limitation, all of Assignor's right, title and interest in and to the security
deposits listed on SCHEDULE A attached hereto and incorporated herein. Assignor
agrees to, and hereby does, indemnify, save and hold Assignee harmless of, from
and against any and all loss, cost, expense, liability, damages, actions, causes
of action, demands or claims arising out of or in connection with the
obligations of landlord under the Leases arising or accruing prior to the date
hereof (including without limitation any that relate to the security deposits
pursuant to Leases).
2 Assignee hereby accepts the foregoing assignment and assumes all of
Assignor's obligations under the Leases arising from and after the date hereof.
3. Assignee agrees to, and hereby does, indemnify, save and hold
Assignor harmless of, from and against any and all loss, cost, expense,
liability, damages, actions, causes of action, demands or claims arising out of
or in connection with the obligations of landlord under the Leases arising from
and after the date hereof (including without limitation any that relate to the
security deposits assigned and transferred to Assignee hereby).
4. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
ASSIGNOR:
SAUCON VALLEY SQUARE, L.P.
BY: MART SAUCON LLC, ITS GENERAL PARTNER
BY: MART LIMITED PARTNERSHIP, ITS SOLE MEMBER
BY: KIMEAST REAL ESTATE INVESTMENT TRUST, ITS
GENERAL PARTNER
By:
---------------------------
Name:
Title:
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS, an
Illinois Corporation
By:
---------------------------
Name:
Title:
19
EXHIBIT "A"
[TO FOLLOW]
20
EXHIBIT "B"
[TO FOLLOW]
21
EXHIBIT 5
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT, made this_______day of_________________, 2004, by and
between SAUCON VALLEY SQUARE L.P., a Florida Limited Partnership, ("Assignor")
and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois Corporation ("Assignee").
WITNESSETH:
Assignor is the owner of the property described on Exhibit "A" attached
hereto and made a part hereof ("Premises"). Assignor desires to assign to
Assignee, and Assignee desires to accept the assignment from Assignor of all of
Assignor's right, title and interest in and to those certain service contracts
relating to the Premises described on Exhibit "B" attached hereto and made a
part hereof ("Service Contracts").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto, intending to be legally bound hereby,
covenant and agree as follows:
1. Assignor hereby grants, transfers and assigns to Assignee, its
successors and assigns, all of the right, title and interest of the Assignor in
and to the Service Contracts. Assignor hereby indemnifies and agrees to defend
and hold Assignee harmless from and against all damages, claims, liabilities,
costs and expenses (including reasonable attorneys' fees) arising out of or
relating to the Service Contracts that accrue prior to the date hereof.
2. Assignee hereby accepts said assignment and assumes all of the
Assignor's duties and obligations arising out of the Service Contracts from and
after the date hereof. Assignee hereby indemnifies and agrees to defend and hold
Assignor harmless from and against all damages, claims, liabilities, costs and
expenses (including reasonable attorneys' fees) arising out of or relating to
the Service Contracts from and after the date hereof.
3. The provisions hereof 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 each caused this Assignment
to be duly executed the day and year first above written.
ASSIGNOR:
SAUCON VALLEY SQUARE, L.P.
BY: MART SAUCON LLC, ITS GENERAL PARTNER
BY: MART LIMITED PARTNERSHIP, ITS SOLE MEMBER
BY: KIMEAST REAL ESTATE INVESTMENT TRUST, ITS
GENERAL PARTNER
By:
---------------------------
Name:
Title:
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS, an
Illinois Corporation
By:
---------------------------
Name:
Title:
22
EXHIBIT "A"
[TO FOLLOW]
23
EXHIBIT "B"
[TO FOLLOW]
24
EXHIBIT 6
PERMITTED EXCEPTIONS
1. See Schedule 6A attached hereto and made a part hereof.
2. Laws and governmental regulations that affect the use and maintenance
of the Shopping Center.
3. Rights, if any, of any utility company to construct and/or maintain
lines, pipes, wires, cables, poles, conduits and distribution boxes and
equipment in, over, under, and/or upon the Real Estate or any portion thereof.
4. Current (tax year 2003-2004) Real Estate Taxes and assessments,
subject to apportionment as hereinafter set forth.
5. Rights, if any, of tenants under Space Leases.
6. The Service Contracts assumed by Buyer and approved by Buyer during
the Due Diligence Period.
7. Any and all other covenants, easements, reservations, agreements and
other matters, if any, of record as of the date of this Agreement; provided same
do not prohibit the maintenance of the Real Estate or the existing use thereof.
Should a dispute arise as to whether any of such matters prohibit the
maintenance or existing use of the Real Estate, Buyer agrees that same shall not
constitute a title objection if the title company shall affirmatively insure
that they do not prohibit such maintenance or existing use of the Real Estate.
8. Any matter than an accurate survey may show.
9. The REA.
10. The Ground Leases.
25
EXHIBIT "6-A"
(Schedule "B" from Seller's Existing Title Policy)
26
SCHEDULE A
Estates, claims or encumbrances, not disclosed of record, affecting the title of
the insured and created or suffered since the acquisition of title by Saucon
Valley Square L.P.
Conditions, easements, restrictions and notes as shown on Plan as in Map Book
87, Page 304.
Conditions, easements, restrictions and notes as shown on Subdivision Plan of
Saucon Valley Square as in Record Book 1997-5, Page 355.
Conditions, easements, restrictions and notes as shown on Plan of Saucon Valley
Square as in Record Book 1997-5, Page 356.
Conditions, easements, restrictions and notes as shown on Condominium Plan of
Saucon Valley Square as in Record Book 1997-1, Page 357.
Rights granted to Pennsylvania Power and Light Company in Misc. Book 113, Page
442 and Misc. Book 117, Page 595.
Deed of Easement as in Misc. Book 482, Page 226.
Addendum to Reservation Agreement with Lower Saucon Township as in Record Book
1997-1, Page 40116.
Highway Occupancy Permit as in Record Book 1997-1, Page 62559.
Land Development Agreement with Lower Saucon Township as in Record Book 1997-1,
Page 96692.
Hold Harmless Agreement with Lower Saucon Township as in Record Book 1997-1,
Page 112972.
Declaration of Saucon Valley Square Condominium as in Record Book 1997-1, Page
114559.
Assignment of Reservation Agreement and Addenda as in Record Book 1997-1, Page
114662.
Terms and Conditions of Lease to Super Fresh Food Markets, Inc. dated October
12, 1997 a Memorandum thereof being recorded in Record Book 1997-1, Page 114669.
Agreement between Saucon Valley Square, L.P., Super Fresh Food Markets, Inc. and
Main Line Bank as Record Book 1997-1, Page 114679.
First Amendment to Declaration of Saucon Valley Square Condominium as in Record
Book 1998-1, Page 41301.
Rights granted to PP&L, Inc. in Record Book 1998-1 Page 89351.
In the event that all installments for condominium assessments have not been
paid in full through the current year, the following exception will appear on
the title policies:
"Condominium assessments for current year. Company insures that all installments
of current year's condominium assessments have been paid
to:______________________________.
Conditions as set forth in Plan of survey by Jena Engineering Corp., project no.
110498, dated December 14, 1998, which include the following:
a)Condominium Unit 8 lien partially within right of way granted in Volume 1998-1
Page 089351.
b)Corner of Condominium Xxxx 0 lies within delineated exceeding height limit in
declaration of 25 feet.
c)Building height of Unit 4 is 25.35 feet at one point, exceeding height limit
in declaration of 25 feet.
EXHIBIT 7
SCHEDULE OF LITIGATION
NONE
27
EXHIBIT 8
Intentionally Deleted
28
EXHIBIT 9
Intentionally Deleted
29
EXHIBIT 10
EXHIBIT C
Tenant Estoppel Certificate Form - General
To:
Inland Real Estate Acquisitions, Inc., and
Inland Southeast______, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Lease Agreement dated________________ and
amended_________________("Lease"), between as "Landlord",
and___________________________________________, as "Tenant", guaranteed by
("Guarantor") for leased premises known as (the "Premises") of the property
commonly known as (the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter agreements, modifications and waivers
related to the Lease
b. Commencement Date
c. Expiration Date
d. Current Annual Base Rent
Adjustment Date Rental Amount
--------------- -------------
e. Fixed or CPI Rent Increases _______________ __________
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options ______Additional Terms for
___________years at $_________per year
i. Termination Options Termination Date______________
Fees Payable_________________
2. Tenant further certifies to Purchaser that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been sublet by
Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or
abatements required to be given by Landlord to Tenant have been given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to pay
interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
30
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the Lease
earlier than the Expiration Date (except as stated in paragraph l(i));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives
relating to the use or condition of the Premises or the Property;
1. no hazardous wastes or toxic substances, as defined by all applicable
federal, state or local statutes, rules or regulations have been
disposed, stored or treated on or about the Premises or the Property by
Tenant;
m. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein;
n. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws;
o. the Lease does not give the Tenant any operating exclusives for the
Property; and
p. Rent has been paid through_____ __, 2003.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease
until Tenant is notified otherwise in writing by Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at lender's
request, so long as the lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant
further acknowledges and agrees that Purchaser (including its lender),
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
Its:
---------------------------
Date: , 2003
-----------------
31
GUARANTOR ESTOPPEL CERTIFICATE
Date:___________________, 2003
To: ____________
Inland Real Estate Acquisitions, Inc., and
Inland Southeast_____, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Guaranty Agreement dated___________ ("Guaranty of Lease") pertaining to
that certain lease dated___________________________________________________
between as Landlord and____________________________________________as
Tenant for leased premises known
as________________________________________________________(the "Premises")
located at the property commonly known
as________________________________________________(the "Property").
1. Guarantor certifies to Lender and Purchaser that: (a) the Guaranty of
Lease has been properly executed by Guarantor and is presently in full
force and effect without amendment or modification except as noted
above; (b) Guarantor has no existing defenses, offsets, liens, claims or
credits against the obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and a lender is about to provide Landlord
with financing which shall be secured by a deed of trust (or mortgage),
security agreement and assignment of rents, leases and contracts upon
the Property. Guarantor further acknowledges and agrees that Purchaser
and its lender and their respective successors and assigns shall have
the right to rely on the information contained in this Certificate.
3. The undersigned is authorized to execute this Guarantor Estoppel
Certificate on behalf of Guarantor.
[GUARANTOR]
By:
32
EXHIBIT 11
REA ESTOPPEL STATEMENT
The undersigned _______________ , a _____________ corporation ("______ "),
is a party to the _______________ (REA) recorded on ___________ _____, ________
in Book ________, Page _______ of the Public Records of _______ County,
________(the "REA"), between and among _____, __________________, a
______________ ("Developer"), and ____________________, a __________
(corporation) ("_______"), with respect to the ________________________________
Shopping Center in __________, ________ (the "Shopping Center"). _______________
has been advised that Developer is in process of selling Developer's interest in
the Shopping Center to INLAND (entity) having a notice address of 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Vice Chairman (together
with its lender, and successors and assigns, collectively referred to herein as
"Purchaser"). _____________hereby states to Purchaser as follows (without
undertaking any investigation to verify the accuracy of the statements made):
1. The REA has not been amended and is in full force and effect.
2. The REA is presently in full force and effect according to its terms.
3. _____ has neither given nor received any notice of default with
respect to the REA. To the best of_________'s knowledge (whereby knowledge shall
be limited to the party signing this REA Estoppel Agreement on behalf
of__________), neither________nor any other party is in default under the REA.
4. As provided under Section _________________________ of the ___REA,
_______ acknowledges and agrees that, upon its acquisition of Developer's
interest in the Shopping Center, Purchaser shall be entitled to all of the
benefits, rights, privileges and burdens of the Developer under the REA.
5. The gross leasable area of the_______store is______________________.
6. ______'s last contribution for common area maintenance costs and
expenses was for the month of_______, 2003 in the amount of $____________.
This Statement does not (a) constitute a waiver of any rights______may have
under the REA, or (b) modify, alter, or change any of the terms or conditions of
the REA.
No officer or employee signing this Statement on behalf of_________shall
have any liability as a result of having given this statement.
The statements contained in this Statement are not affirmative
representations, warranties, covenants or waivers, and________shall not be
liable to Developer, Purchaser or any third party on account of any information
herein contained, notwithstanding the failure, for any reason, to disclose
and/or correct relevant information. Notwithstanding the preceding sentence,____
shall be estopped from asserting any claim or defense against Purchaser to the
extent such claim or assertion is based upon facts, now known to the person(s)
signing below on behalf of __________, which are contrary to those contained
herein, if Purchaser has acted in reasonable reliance upon such statements
without knowledge of facts to the contrary. This Statement is given solely for
Purchaser's information and may not be relied upon by anyone other than
Purchaser, or in connection with any transaction other than the transaction
described above. Capitalized terms used in this Statement, unless otherwise
defined, will have the meanings ascribed to such terms in the REA.
34
Dated as of_______________________, 2003.
_______________________
a ________(CORPORATION)
BY:_______________________
As Its:
EXHIBIT 12
INLAND SOUTHERN MANAGEMENT LLC
FINAL DUE DILIGENCE CHECKLIST
A. FINANCIAL INFORMATION
1. Copy of leases and any guarantees
2. Current Rent Roll
3. Prior five full years operating statements
4. Prior year's general ledger statement
5. Last three years' bills for:
a. Real estate taxes
b. Insurance
1) Liability
2) Property
c. Reconciliation's for CAM/taxes/insurance
Statement of current monthly amounts paid by tenants for
CAM/tax/insurance plus a year-to-date balance of amounts paid by each
tenant
6. Base rent collected in previous five calendar year period by tenant
7. Physical occupancy for the last five calendar years prior to purchase
8. Receivables status/aging report
9. Tenant sales reports for last three years
10. Tenant financial statements
11. Lease expirations - next three years
B. EXPENSE INFORMATION
1. Twelve months of consecutive utility bills
a. Water
b. Gas
c. Electric
d. Telephone & dedicated lines
35
2. Copies of all service agreements, contracts or any leases that
encumber the property
a. Fire/burglar alarm
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
b. Antenna cable/satellite dish
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
c. Cleaning
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
d. Exterminating
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
e. Landscaping
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
f. Scavenger
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
g. Security service
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
h. Snow removal
1) Start date____________________________
2) Ending date___________________________
3) Notice period_________________________
4) Cancelable or not_____________________
i. Towing
1) Start date___
2) Ending date________
3) Notice period______
4) Cancelable or not__
j. Union contracts
1) Start date__
2) Ending date______
3) Notice period____
4) Cancelable or not__
k. Elevator
1) Start date___
2) Ending date_______
36
3) Notice period_______
4) Cancelable or not___
l. Uniform rental
1) Start date__
2) Ending date________
3) Notice period______
4) Cancelable or not_
m. Water softeners
1) Start date_
2) Ending date________
3) Notice period______
4) Cancelable or not_
n. Leasing
1) Start date_
2) Ending date______
3) Notice period____
4) Cancelable or not_
o. Management
1) Start date_
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
p. Advertising
1) Start date_
2) Ending date________
3) Notice period______
4) Cancelable or not_
q. Tax reduction legal fees
1) Start date_
2) Ending date________
3) Notice period______
4) Cancelable or not_
r. Any other service contracts or leases not cancelable in 90 days
1) Start date_____________________________
2) Ending date____________________________
3) Notice period__________________________
4) Cancelable or not______________________
3. Copies of all warranties which benefit the initial construction of
the improvements upon the Property (e.g., HVAC, roof and parking lot)
C. ENVIRONMENTAL REPORTS
1. Phase I
2. Other
D. STAFFING
1. Itemized by position and salary
E. SITE INSPECTIONS
1. Inspection report
2. Photo attached
F. MISCELLANEOUS
37
1. Code violations
a. Current and outstanding
b. Last 24 months, with compliance
c. Contact municipalities as to other problems
2. Easement/encumbrances: restrictive easement agreements/operating
easement agreements
a. Warranties
b. Current tenant contact list
c. Certificates of insurance from tenants
d. Certificates of Occupancy for each tenant space
38
EXHIBIT 13
SURVEYOR'S CERTIFICATION
I/We hereby certify to INLAND ________________(Inland nominee), (Lender)
and________________________________(Name of Title Insurance Company) that (a)
this survey was prepared by me or under my supervision, (b) the legal
description of the property as set forth herein, and the location of all
improvements, encroachments, fences, easements, roadways, rights of way and
setback lines which are either visible or of record
in______________County,_________________________ (according to Commitment for
Title Insurance Number_________, dated_________, 2001(2),
issued____________________________), are accurately reflected hereon, (c) this
survey accurately depicts the state of facts as they appear on the ground, (d)
except as shown hereon, there are no improvements, encroachments, fences or
roadways on any portion of the property reflected hereon, (e) the property shown
hereon has access to a publicly dedicated roadway, (f) the property described
hereon {does} {does not} lie in a 100 year flood plain identified by the
Secretary of Housing and Urban Development or any other governmental authority
under the National Flood Insurance Act of 1968 (24 CFR Section 1909.1), as
amended (such determination having been made from a personal review of flood map
number_______, which is the latest available flood map for the property), (g)
the title lines and lines of actual possession are the same, (h) all utility
services required for the operation of the property either enter the property
through adjoining public streets, or this survey shows the point of entry and
location of any utilities which pass through or are located on adjoining private
land, (i) this survey shows the location and direction of all storm drainage
systems for the collection and disposal of all surface drainage, (j) the
property surveyed contains_______acres and__________parking spaces, (k) any
discharge into streams, rivers, or other conveyance systems is shown on the
survey. This survey has been made in accordance with "MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS" jointly established and adopted
by American Land Title Association ("ALTA") and American Congress on Surveying
and Mapping ("ACSM") in 1999 and meets the accuracy requirements of an Urban
Survey, as defined therein and includes items 1, 3, 4, 6, 7(a, b, and c), 8-11
and 13 of Table A thereof.
Dated:____________, 2003 (NAME OF SURVEYOR AND QUALIFICATION)
-----------------------------
Registration No.
-------------
Note: Buyer also requires a finished floor elevation certificate for all
finished structures located in a flood zone
39
EXHIBIT 14
TENANT LETTER
(Landlord Letterhead)
(Landlord or management company Letterhead)
_________ ___,2003
Insert Tenant Name
Insert Tenant Address
Re: The lease dated_____________(collectively, with any and all amendments
thereto, the "Lease") between __________ as tenant ("Tenant") and
______________________________________, _____________ as landlord
("Landlord") for property located at the___________Shopping
Center,_____,_______(the "Property")
Dear Tenant:
Please be advised that the Property, subject to the above-referenced Lease,
has been sold as of ______ ___, 2003 to Inland Southeast____________, L.L.C.
Inland Southeast______________, L.L.C. has hired Inland Mid-Atlantic Management
Corp. as its managing agent for the Property. Effective immediately, all rent
payments pursuant to the Lease should be made payable to Inland Mid-Atlantic
Management Corp. and sent to the following address:
Inland Mid-Atlantic Management Corp.
P. O. Xxx 000000
Xxxxxxx, XX 00000-0000
In addition, all notices and other communications provided by Tenant under
the Lease should be sent to Inland Southeast__________, L.L.C. at the following
address:
Inland Mid-Atlantic Management Corp.
c/o Inland Southeast_________, L.L.C.
Attn: Xx. Xxxxx Xxxxxxxx
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
In addition, please contact your insurance agent to have a certificate
forwarded, naming as additional insured: (i) Inland Mid-Atlantic Management
Corp., and (ii) Inland Southeast _______________, L.L.C. Thank you for your time
and attention to this matter.
Very truly yours,
(Landlord or management company)
By:
---------------------------------
cc: Inland Southeast____________, L.L.C.
40
INTENTIONALLY DELETED
41
