Exhibit 10.411
AGREEMENT OF PURCHASE AND SALE
BETWEEN
RUBLOFF GURNEE TOWN CENTRE, L.L.C.,
AN ILLINOIS LIMITED LIABILITY COMPANY, AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC.,
AN ILLINOIS CORPORATION, AS BUYER
Dated: October 5, 0000
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XXXXXX XXXX XXXXXX
XXXXXX, XXXX XXXXXX, XXXXXXXX
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") dated as of October 5,
2004 is between RUBLOFF GURNEE TOWN CENTRE, L.L.C., an Illinois Limited
liability company ("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an
Illinois corporation ("Buyer").
RECITALS
A. Seller owns a certain retail property located in Gurnee, Lake County,
Illinois, consisting of a shopping center and commonly known as Gurnee Town
Centre, which property is more fully described and defined as the "Property" in
Section 1 of this Agreement.
B. Seller desires to sell the Property, and Buyer desires to acquire the
Property from Seller.
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth in this Agreement, and for other valuable consideration, receipt of which
hereby is acknowledged, Seller and Buyer agree as follows:
AGREEMENTS
1. AGREEMENT TO BUY AND SELL. Seller shall sell and convey to Buyer or
Buyer's nominee, and Buyer or Buyer's nominee shall purchase and accept from
Seller, all of Seller's right, title, estate, and interest in and to:
(a) the land described on EXHIBIT A, which is attached to and made a
part of this Agreement, together with all easements, privileges, and
appurtenant rights belonging or in any way appertaining to the land
including but not limited to any document in the nature of a declaration of
reciprocal easements (collectively, the "Land");
(b) all buildings and improvements, including, without limitation, all
gas and electric systems, lighting, heating, ventilating, and air
conditioning equipment and systems, elevators, escalators, radiators,
incinerators, furnaces, hot water heaters, water, sewage, and plumbing
systems, fire protection and security systems, and all other fixtures
attached to the Land and buildings (collectively, the "Improvements," and
together with the Land, the "Real Property");
(c) such furnishings, furniture, equipment, supplies, and other
personal property as are owned by Seller and are currently located in, on,
or about and are used for the Real Property, including, without limitation,
those described on EXHIBIT B, which is attached to and made a part of this
Agreement (collectively, the "Personal Property");
(d) all leases and tenancies affecting the Real Property, including,
without limitation, those leases and tenancies described on EXHIBIT C,
which is attached to and made a part of this Agreement and all security
deposits not forfeited or returned to tenants and any guaranties of same
(collectively, the "Tenant Leases");
(e) all other agreements, contracts, and contract rights pertaining to
the Property to the extent assignable, including without limitation, those
described on EXHIBIT D, which is attached to and made a part of this
Agreement (collectively, the "Service Contracts"); and
(f) all intangible property owned by Seller and used in connection
with the Real Property and Personal Property, including all Seller's right,
title and interest in and to all trademarks and trade names used in
connection with the Property (including without limitation the name "Gurnee
Town Centre"), all plans and specifications, if any, in the possession or
control of Seller which were prepared in connection with the construction
of the Improvements and all telephone exchange numbers, licenses, permits
and warranties now in effect with respect to the Property to the extent
assignable (collectively, the "Intangible Property").
All of the foregoing assets and properties to be acquired by Buyer pursuant to
this Agreement are collectively referred to in this Agreement as the "Property."
2. PURCHASE PRICE.
(a) Subject to the charges and prorations set forth in Section 12 of
this Agreement, Buyer shall pay to Seller at Closing (as hereinafter
defined) the sum of Forty Four Million Three Hundred Thousand and No/100
Dollars ($44,300,000.00) (the "Purchase Price") for the purchase of the
Property. The Purchase Price shall be payable in cash or other immediately
available United States funds.
(b) Within four (4) business days after this Agreement is executed by
Buyer and Seller, Buyer shall deposit with Escrow Agent (as hereinafter
defined) the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00)
(the "Initial Deposit") by check or wire transfer of immediately available
funds. The sum of Twenty Thousand and No/100 Dollars shall become
non-refundable at 5:00 p.m. Chicago time on September 30, 2004
("Nonrefundable Deposit"), except in the event of a "Damage" or "Taking" as
defined in Section 10 of this Agreement or a Seller default as further
described herein. In the event that Buyer terminates this Agreement on any
day which is after September 30, 2004 and on or before the expiration of
the Due Diligence Period in accordance with Section 5(b) below the Initial
Deposit (minus the Nonrefundable Deposit) shall be immediately returned to
Buyer. In the event that Buyer terminates this Agreement before 5:00 p.m.
Chicago time on September 30, 2004 in accordance with Section 5(b) below,
the Deposit (including the Nonrefundable Deposit) shall be immediately
returned to Buyer. The Initial Deposit, Nonrefundable Deposit and any
interest earned thereon is referred to hereinafter as the "Deposit". Upon
expiration of the Due Diligence Period, the Deposit shall be non-refundable
to Buyer, unless otherwise provided herein. Pursuant to joint order escrow
instructions, the Escrow Agent shall hold the Deposit which shall be placed
in an interest-bearing account if directed by Buyer. Seller shall be
entitled to any interest earned on the Deposit, except that Buyer shall be
entitled to such interest if (w) Buyer closes the transactions contemplated
by this Agreement, (x) Seller breaches its obligations under this
Agreement, or (y) Buyer has terminated this Agreement in accordance with
Section 5(b) of this Agreement or by reason of a failure of a condition
precedent pursuant to Section 9(a) of this Agreement. At Buyer's election,
the Deposit
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will be applied to the Purchase Price at Closing or refunded to Buyer, if
Buyer closes the transactions contemplated by this Agreement.
3. ESCROW AGENT. Chicago Title Insurance Company ("Escrow Agent") shall
serve as escrow agent for the transaction contemplated in this Agreement,
provided Seller and Buyer agree that Seller and Buyer shall each be responsible
for the payment of one-half (1/2) of the termination fees, if any, associated
with the termination of Metropolitan Title Company, provided however, Buyer's
share thereof shall in no event exceed the amount of $375.00. This Agreement
shall serve as escrow instructions, and Escrow Agent may attach to this
Agreement one of Escrow Agent's printed forms of conditions of acceptance of
escrow; provided, however, that if any inconsistency between conditions of
acceptance and this Agreement exists, this Agreement shall prevail.
4. TITLE; SURVEY.
(a) On before October 5, 2004, Seller shall obtain and deliver to
Buyer a title insurance commitment (the "Commitment") issued by Chicago
Title Insurance Company (the "Title Company") for the issuance of a 1992
form owner's fee policy of title insurance as to the Land, together with
copies of all documents of record referenced therein in the amount of the
Purchase Price, covering the Real Property and showing title in fee simple
to be vested in Seller, naming Buyer as the proposed insured, including
extended coverage over all standard exceptions, and including, at Buyer's
expense, the following endorsements: (i) zoning 3.1 with parking and
loading dock coverage; (ii) owner's comprehensive; (iii) access; (iv)
survey (legal description equivalency); (v) separate tax parcel; (vi)
contiguity (if applicable); (vii) waiver of creditor's rights; (viii)
environmental lien protection; (ix) encroachment (if applicable); (x)
utility facility; (ix) subdivision; (xii) location; and (xiii) deletion of
arbitration provision. Notwithstanding anything contained herein to the
contrary, the utility facility endorsements described in (x) above shall
not be a condition precedent to Buyer's obligation to close this
transaction.
(b) Seller has delivered to Buyer the most recent survey (the
"Existing Survey") of the Property in Seller's possession. On or before
October 6, 2004, Seller shall obtain and deliver to Buyer an updated
ALTA/ACSM survey of the Real Property (the "Survey") based upon the
Existing Survey and made in accordance with the 1999 "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys", including and in
accordance with Buyer's survey requirements (except said Survey shall not
show the various topographic elevations of the Property) and surveyor's
certificate set forth on EXHIBIT E attached hereto.
(c) On or before October 11, 2004, Buyer shall deliver to Seller
written notice that Buyer either:
(i) approves and accepts Seller's title as it appears in the
Commitment and on the Survey, or
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(ii) objects to any matters set forth in the Commitment or on the
Survey, which matters shall be described in Buyer's notice of
objection with sufficient particularity to allow Seller to identify
them.
If Buyer fails to deliver notice as provided in this subsection, Buyer
shall be deemed to have approved title to the Property as shown in the
Commitment and on the Survey, and all such matters shown in the Commitment
and on the Survey shall be considered "Permitted Exceptions."
(d) Any matters set forth in the Commitment or on the Survey for which
Buyer does not object to shall be considered "Permitted Exceptions." In
addition, the following matters set forth in the Commitment or on the
Survey shall be deemed to be "Permitted Exceptions": (i) those created by
Buyer; (ii) those specifically set forth in this Agreement; (iii) zoning
ordinances; (iv) general and special real estate taxes and assessments that
are a lien on the date of Closing, but are not yet due and payable; (v)
legal highways; (vi) covenants, conditions, restrictions, agreements and
easements of record approved by Buyer during the Due Diligence Period that
do not unreasonably interfere with the use of the Property as a retail
shopping center; (vii) rights of tenants as tenants under the Tenant
Leases; and (viii) nonmaterial encroachments over a building setback or
property line, a prohibited encroachment of a nonmaterial nature over any
easement or any other matter shown on the Survey which does not materially
interfere with the use, operation or financing of the Real Property
provided the Title Company provides affirmative insurance regarding same.
(e) If Buyer notifies Seller that the condition of title as shown in
the Commitment and on the Survey is unacceptable, Seller shall have until
October 12, 2004 during which it may attempt to cure any material defects
or, in the case of non-material defects, reach a mutual written agreement
with Buyer to cure such non-material defects after the termination of the
Title Review Period (as defined herein) and prior to Closing.
Notwithstanding the foregoing, Seller shall have no affirmative obligation
under this Agreement to expend any funds or incur any liabilities to cause
any title exceptions to be removed from the Commitment or insured over or
to correct any survey defects, except that (x) Seller shall pay, discharge
or cause the Title Company to affirmatively insure over any mortgage lien,
mechanics lien or similar encumbrance voluntarily created or assumed by
Seller and not created by or resulting from the acts of Buyer or other
parties not related to Seller and (y) Seller agrees to expend up to Five
Hundred Thousand Dollars ($500,000) in the aggregate to cure any defects
other than those described in (x) above and other than those created by or
resulting from the acts of the Buyer. Seller shall have the right to cure
any defect by causing the Title Company to insure over it provided Buyer
agrees to same. If Seller fails to cure such defects, then Buyer has until
October 13, 2004 (the "Title Review Period") to elect either to terminate
this Agreement, as its sole and exclusive remedy, or Buyer may accept such
title as Seller is able to convey, without reduction in the Purchase Price.
If Buyer elects to terminate this Agreement, Buyer shall deliver to Seller
written notice of its decision to terminate this Agreement by the end of
the Title Review Period, and Escrow Agent shall return all documents and
funds, except for the Nonrefundable Deposit (in accordance with Section
2(b) herein), previously deposited into escrow to the party so depositing
same and neither party shall have any further liability to the other
hereunder, except as otherwise provided herein.
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(f) At Closing, as a condition to Buyer's obligations hereunder, there
shall be no other exceptions to title to the Property other than the
Permitted Exceptions or those that Buyer is deemed to have approved. On the
Closing Date, Seller shall cause the Title Company to issue, at Seller's
expense, an ALTA Owner's Title Insurance Policy (Form 1992) as to the Land
in an amount equal to the Purchase Price, assuring that title to the
Property is in the condition required by this Agreement, with extended
coverage over the standard printed exceptions and including all
endorsements requested by Buyer pursuant to Section 4(a) herein (the
"Policy"). Seller agrees to cooperate reasonably with Buyer, at Buyer's
expense, in causing the Title Company to issue such endorsements to the
Policy.
5. BUYER'S DUE DILIGENCE.
(a) Buyer shall have until October 13, 2004 to make such inquiries and
review such documents regarding market conditions, the financial and
physical condition of the Property, zoning, governmental compliance,
financing and such other inquiries and documents as Buyer deems appropriate
(the "Due Diligence Period") Notwithstanding the foregoing, Buyer shall
have until September 30, 2004 to make such inquiries and review such
documents regarding environmental and engineering matters. Buyer shall have
reasonable access to the Property for the purpose of making, at Buyer's
sole cost and expense, surveys, soil tests, inspections and other
investigations on business days upon at least twenty-four (24) hours prior
written notice to Seller. Buyer shall conduct such inspections in a manner
not disruptive to tenants or to the operation of the Property. Buyer shall
not contact any tenant at the Property or any governmental authority with
respect to the Property without Seller's consent, which consent shall not
be unreasonably withheld, delayed or conditioned, and, in the case of any
contact with any tenant, without a representative of Seller being present.
Seller shall also make available for inspection by Buyer copies of all
reports, leases, correspondence, contracts, studies, permits, warranties,
litigation files, and other items respecting the Property as Seller
currently has in its immediate possession. In addition to the foregoing,
within three (3) business days after the date hereof, Seller shall deliver
to Buyer copies of such of the following respecting the Property as Seller
currently has in its or its property manager's possession or control: (i)
the most recent survey of the Property; (ii) the Tenant Leases and a
schedule of security deposits with respect thereto; (iii) the Service
Contracts; (iv) operating statements for the previous three (3) years; (v)
a current rent roll; (vi) an inventory list of Personal Property; (vii) the
real and personal property tax bills for the previous three (3) years;
(viii) the utility bills for the previous twelve (12) months; (ix)
environmental reports; (x) engineering reports; (xi) notices of violations
or claims by third parties; and (xii) such other documents or reports in
Seller's possession as reasonably requested by Buyer during the Due
Diligence Period. Buyer shall undertake such inspections and reviews with
commercially reasonable diligence and effort. Buyer shall maintain
commercial general liability insurance with a reputable insurer licensed in
the state in which the Property is located, with a Best's rating of A10 or
better, providing minimum limits of liability of One Million Dollars
($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate,
with an umbrella excess liability policy in minimum amount of Five Million
Dollars ($5,000,000) per occurrence bodily injury/property and Five Million
Dollars ($5,000,000) aggregate damage/occurrence, which policy or policies
shall name Seller as additional insured and Buyer shall provide
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Seller with a copy of said insurance certificate. Buyer shall provide
notice to Seller not less than fifteen (15) days prior to cancellation of
said insurance policy. Any phase I environmental report and asbestos survey
shall be conducted at Buyer's expense by consultants selected by Buyer and
reasonably acceptable to Seller. Additionally, on or before the expiration
of the Due Diligence Period, Buyer shall notify Seller in writing if Buyer
elects not to assume at Closing any of the Service Contracts, and in such
event, Seller shall give notice of termination of such disapproved Service
Contract(s) and Seller shall pay any and all fees of other compensation due
thereunder as a result of such termination.
(b) On or before the expiration of the Due Diligence Period, Buyer
shall have the right to terminate this Agreement for any reason in Buyer's
sole discretion by delivering to Seller written notice of its decision to
terminate this Agreement. If Buyer elects to terminate this Agreement,
Escrow Agent shall return all documents and funds, except for the
Nonrefundable Deposit in accordance with Section 2(b) herein) and,
previously deposited into escrow to the party so depositing same and
neither party shall have any further liability to the other hereunder,
except as otherwise provided herein.
(c) Buyer shall (i) indemnify, defend and hold Seller harmless from
and against any and all liability, claims, demands, damages or expenses of
any kind, including reasonable attorneys' fees, caused, directly or
indirectly, by, or in any manner relating to, such entry upon the Property
or the making of such tests and investigations or for any damages to the
Property caused thereby and (ii) restore the Property as nearly as
practicable to the condition existing immediately prior to the performance
of such tests and investigations. This subsection 5(c) shall survive the
termination of, or the closing of the transactions contemplated by, this
Agreement for forty-five (45) days. Notwithstanding anything to the
contrary in the foregoing, the mere discovery by Buyer in the course of its
tests and investigations of a condition existing on the Property at such
time shall not cause Buyer to be liable for the cure or remediation of the
same except to the extent Buyer's negligence or willful misconduct shall
cause such condition to become aggravated or except to the extent the need
for remediation is caused by Buyer's negligence or willful misconduct
(other than due to its discovery of such condition or any reporting arising
therefrom).
(d) If the Closing does not take place for any reason whatsoever,
Buyer shall not, directly or indirectly, disclose to any person or party
(other than counsel, accountants, advisors, investors, lenders, and the
like) or use in any manner any non-public information of Seller acquired by
Buyer with respect to Seller or the Property, except as may be required by
law. Upon termination of this Agreement for any reason other than Closing,
Buyer shall return to Seller within ten (10) days after such termination
any and all documents, information and property of Seller in Buyer's
possession or control and, if requested by Seller, shall also deliver to
Seller copies of all third-party surveys, tests and investigations prepared
by or for the benefit of Buyer in connection with the Property requested by
Seller provided Seller pays one-half (1/2) of Buyer's actual out-of-pocket
costs incurred in obtaining the same. This subsection 5(d) shall survive
the termination of this Agreement for one (1) year.
6. ESTOPPEL CERTIFICATES.
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(a) Seller shall use commercially reasonable efforts to obtain on or
before the fifth (5th) day prior to the Closing Date an estoppel
certificate for each tenant of the Property in substantially the form of
Exhibit F(1) (or the form provided for in the applicable Tenant Lease),
which is attached to and made a part of this Agreement ("Estoppel
Certificate"). Seller shall be obligated, as a condition precedent to
Closing and pursuant to subsection 9(a)(iv) herein, to obtain an Estoppel
Certificate for (a) each tenant who leases over five thousand (5,000)
square feet of the leased square footage of space, and (b) at least seventy
percent (70%) (on a square footage basis) of all other tenants (other than
those referenced in subsection (a) hereof).
(b) Seller and Buyer agree that notwithstanding anything to the
contrary contained herein, Seller shall not be required to obtain an
estoppel certificate from the Stonebrook Condominium Association (the
"Association") or First American Bank ("FAB"), but Seller hereby agrees to
indemnify, defend and hold Buyer harmless from any and all costs, expenses,
claims, liabilities and demands made against Buyer by the Association
and/or FAB, arising from events that occur prior to the Closing in
connection with any fees or assessments due and owing and any matters
related to improvements, repairs and/or maintenance. Notwithstanding the
foregoing, at Buyer's request, Seller agrees to use reasonable efforts
obtain an estoppel certificate from FAB within one hundred and twenty days
after the Closing, however failure to obtain such estoppel certificate
shall in no way constitute a default by Seller hereunder.
7. OPERATION OF THE PROPERTY PRIOR TO CLOSING.
(a) From the date of this Agreement to the Closing Date (or until any
earlier termination of this Agreement, as the case may be), Seller shall:
(i) continue to maintain and operate the Property in
accordance with Seller's past practices;
(ii) maintain the Property in as good repair, order, and condition
as exists on the date of this Agreement, ordinary wear and tear and
damage or destruction by fire or other casualty or taking excepted;
(iii) maintain and keep in full force and effect insurance on
the Property in amounts currently in effect;
(iv) comply with the terms and provisions of all existing
Tenant Leases and Service Contracts in all material respects; and
(v) except for leases in respect of the Property (which are
addressed in Section 7(b), below), not permit any part of the
Property, or any interest therein, to be sold, encumbered or otherwise
transferred without Buyer's consent.
(b) From and after the date of this Agreement and until the Closing
Date, Seller will not enter into any new leases in respect of the Property
or modify or amend any existing Tenant Leases without Buyer's written
approval, which written approval shall not be unreasonably withheld or
delayed. If Seller requests Buyer's approval of any new lease, Seller will
forward a copy of such proposed lease to Buyer together with the
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request for approval. If Buyer fails within ten (10) business days of
receipt to give notice to Seller of Buyer's disapproval of any proposed new
lease or lease amendment submitted to it by Seller for approval, Buyer
shall be deemed to have approved the proposed lease or amendment. If Buyer
shall disapprove any proposed lease or amendment, Buyer's notice of
disapproval shall include Buyer's reasons for disapproval.
(c) Buyer acknowledges that Seller is negotiating the lease of three
thousand three hundred (3,300) square feet of vacant unleased space on the
Property known as "Space A-7". Seller will not enter into any lease for
Space A-7 without Buyer's written approval, which approval shall not be
unreasonably withheld or delayed. In the event Buyer consummates the
transactions contemplated by this Agreement, Buyer shall be responsible for
any buildout costs and/or commission fees associated with Space A-7.
8. REPRESENTATIONS AND WARRANTIES.
(a) Seller represents and warrants to Buyer as follows:
(i) Seller is and will be on the Closing Date a limited liability
company duly organized and validly existing under the laws of the
State of Illinois, and qualified to do business in the jurisdiction in
which the Property is located, and Seller has and will have on the
Closing Date all necessary power and authority to: (A) carry on the
business for which it has been organized; (B) own and operate the
Property; and (C) enter into and perform Seller's obligations under
this Agreement.
(ii) Seller has taken all actions required to be taken under the
laws of the State of Illinois and under Seller's operating agreement
to approve or authorize the execution and delivery of this Agreement
and consummation of the transactions contemplated in this Agreement.
(iii) Neither the execution of this Agreement nor the consummation
of the transactions contemplated in this Agreement will constitute a
violation of, be in conflict with, or constitute a default under (or
with the passage of time or delivery of notice, or both, would
constitute a default under) any term or provision of Seller's
operating agreement or any other agreement, lease, reciprocal easement
agreement, or other instrument by which Seller or the Property is
bound and all necessary consents for same have been obtained.
(iv) No litigation, proceeding or action is pending or to Seller's
actual knowledge, threatened against or relating to the Property or
Seller, that could materially adversely affect the Property or its
ownership or operation by Buyer.
(v) No condemnation proceeding is pending or to Seller's
actual knowledge, threatened against or relating to all or any portion
of the Property.
(vi) Attached as disclosed on EXHIBIT C is a complete list of all
the Tenant Leases, and all contractual commitments in connection
therewith, respecting the Property.
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(vii) Attached as disclosed on EXHIBIT D is a complete list of all
of the Service Contracts respecting the Property.
(viii) Except as set forth in the materials delivered to Buyer
pursuant to Section 5(a) above, Seller has not received written notice
from any governmental unit or other person that the Property is not in
compliance with any environmental law.
(ix) GOOD STANDING. The Seller is and on the Closing Date will be
duly qualified and/or licensed, as may be required, and in good
standing in each of the jurisdictions in which the nature of the
business conducted or the character of the property owned, leased or
used makes such qualification and/or licensing necessary.
(x) COMPLIANCE WITH LAWS. To Seller's knowledge, the Seller is
in compliance in all material aspects with all laws, rules,
regulations, and orders pertaining to the Property.
(xi) LAWSUITS AND CLAIMS. To Seller's knowledge, there is no
demand or lawsuit, nor any compliance order, notice of probable
violation or similar governmental action, pending or, to the Seller's
knowledge, threatened before any court or governmental agency that (i)
would result in an impairment or loss of title to any material part of
the Property, or impairment of the value thereof, (ii) would
materially hinder or impede the operation or free enjoyment of the
Property, or (iii) seeks to restrain or prohibit, or to obtain
substantial damages from the Seller.
(xii) LEASE EFFECTIVENESS. Except for the KDA space, the Leases
were valid and in full force and effect when entered into by the
Seller and such Leases are and continue to be in full force and
effect, subject to the provisions set forth therein or in any rent
roll made available to Buyer. The copies of the Leases delivered to
Buyer contain all of the information pertaining to any rights of any
parties to occupy the Property, and the rent roll provided to Buyer by
the Seller is true and correct, in all material respects. The Seller
has not received any written notice of default or event that, with the
giving of notice or passage of time, or both, would constitute a
default by the Seller as landlord under the Leases.
(xiii) LIABILITIES. To Seller's knowledge, the Seller has no
existing, contingent, or threatened liability or obligation, other
than (i) liabilities and obligations not in default accruing pursuant
to the express terms of the Leases or Service Contracts, or (ii) the
Seller's obligations.
(xiv) FINANCIAL STATEMENTS. To the Seller's knowledge, all
financial statements delivered to Buyer and referenced on EXHIBIT G
hereto are true and correct in all material respects and are based on
Seller's current manner of reporting and practice.
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(xv) INSURANCE. To Seller's knowledge, the Seller has not received
any written notices from insurance companies regarding the
uninsurability of the Improvements.
(xvi) SERVICE CONTRACTS. To Seller's knowledge, the Service
Contracts delivered to Buyer are true and correct, represent all
material contracts to which the Seller is a party, and Seller is not
in default of such Service Contracts.
(xvii) TENANT LEASES. To Seller's knowledge, the List of Tenant
Leases attached hereto as EXHIBIT C is true and correct, represents
all material leases to which Seller is a party, and Seller is not in
default of such leases.
(xviii) ENVIRONMENTAL REPORTS. Except as may be disclosed in the
environmental reports delivered to Buyer, to Seller's knowledge,
Seller has not received any written notification that the Property is
in violation of any environmental laws applicable thereto, nor, to the
best of Seller's knowledge, is the Property not in compliance, in all
material respects, with such laws.
(xix) BANKRUPTCY. To Seller's knowledge, no petition in bankruptcy
(voluntary or otherwise), assignment for the benefit of creditors, or
petition seeking reorganization or arrangement or other action under
federal or state bankruptcy laws is pending against or contemplated by
Seller.
(xx) LEASING COMMISSIONS/TENANT IMPROVEMENT ALLOWANCES. To
Seller's knowledge, there are no leasing commissions or tenant
improvement allowances due under the Tenant Leases post-closing.
(xxi) MATERIAL DEFECTS. To Seller's knowledge, no material
defects exist on the Property other than those disclosed in writing by
Seller to Buyer and those disclosed by Buyer pursuant to that certain
Property Condition Assessment, LM Project No. 597.001.
(b) Buyer represents and warrants to Seller as follows:
(i) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Illinois, and qualified
to do business in the jurisdiction in which the Property is located,
and Buyer has and will have on the Closing Date all necessary power
and authority to: (A) carry on the business for which it has been
organized; (B) own and operate the Property; and (C) enter into and
perform Buyer's obligations under this Agreement.
(ii) Buyer has taken all actions required to be taken under the
laws of the State of Illinois and under Buyer's articles or
incorporation and bylaws, partnership agreement or articles of
organization and operating agreement, as the case may be, to approve
or authorize the execution and delivery of this Agreement and
consummation of the transactions contemplated in this Agreement.
(iii) Neither the execution of this Agreement nor the
consummation of the transactions contemplated in this Agreement will
constitute a violation of, be
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in conflict with, or constitute a default under (or with the passage
of time or delivery of notice, or both, would constitute a default
under) any term or provision of Buyer's partnership agreement,
articles of incorporation and by-laws or articles of organization and
operating agreement, as the case may be, or any other agreement or
other instrument by which Buyer is bound.
(c) When the phrase "to Seller's knowledge" or similar phrase is used,
it shall mean the actual knowledge of Xxxxxx X. Xxxxxxxx, the Vice
President of the manager of the Seller and Xxxxxx Xxxxxx, the President of
the manager of the Seller (the "knowledge parties"), in each case after
review of this Agreement with the property manager of the Seller. Seller
represents that the knowledge parties are the persons within Seller's
organization most knowledgeable about the Property. Except as otherwise
provided in this Agreement, the representations and warranties set forth in
this Section 8 shall survive for the period of one (1) year after the
consummation of the transactions contemplated by this Agreement and the
recording the Deed (as hereinafter defined).
9. CONDITIONS PRECEDENT TO CLOSING.
(a) Buyer's obligations under this Agreement are expressly conditioned
upon completion or satisfaction of the following matters on or prior to the
Closing Date:
(i) The Title Company shall, at Closing, be ready, willing and
able to issue to Buyer the Policy for the Property, insuring fee
simple title to the Land, subject only to the Permitted Exceptions;
(ii) Seller shall have deposited with the Escrow Agent all
documents required of Seller to be delivered into Escrow hereunder;
(iii) The representations and warranties of Seller contained in
subsection 8(a) of this Agreement shall be true and correct as of the
Closing Date;
(iv) Buyer shall have received estoppel certificates completed by
(collectively, the "Required Estoppels") (a) all tenants leasing
greater than five thousand (5,000) square feet of the leased square
footage of space on the Property, in accordance with Section 6 above;
and (b) at least seventy percent (70%) (on a square footage basis) of
all other tenants (other than those tenants referenced in subsection
(a) herein) on the Property in accordance with Section 6 above;
provided, however, that if any tenant does not deliver an estoppel
certificate as of the Closing Date, then, except for the Required
Estoppels, Seller shall execute and deliver to Buyer on or before the
Closing Date its own estoppel certificates in the form of Exhibit F(2)
hereto for any such tenants which did not deliver an Estoppel
Certificate. Each Estoppel Certificate executed by Seller shall be
null and void and of no further force and effect one (1) year after
its effective date. Seller's liability under any Estoppel Certificate
executed by it shall be limited as provided in Section 15(b) below and
shall terminate upon receipt by Buyer of an Estoppel Certificate from
the applicable tenant which satisfies the requirements set forth
herein. Estoppel Certificates shall be acceptable and delivered in
satisfaction of this Section 9(a)(iv) if it is substantially in the
11
applicable form required hereunder and the information set forth in
each such estoppel certificate is consistent in all material respects
with the applicable Tenant Lease and the information provided to Buyer
by Seller, provided, however, that if the form of an Estoppel
Certificate is attached to any lease such form shall be deemed, as to
form, the "applicable form" as to such lease. Notwithstanding the
foregoing, Buyer shall not receive estoppel certificates completed by
the Association or FAB.
(v) Seller hereby agrees to indemnify, defend and hold Buyer
harmless from any and all costs, expenses, claims, liabilities and
demands made against Buyer by any of the parties to any reciprocal
easement agreement and/or license agreement affecting the Property,
arising from events that occur prior to the Closing.
(vi) There shall be no litigation, including any arbitration,
investigation or other proceeding, pending by or before any court,
arbitrator or governmental authority, nor any decree, order or
injunction issued by any such court, arbitrator or governmental
authority and remaining in effect, which does or seeks to prevent or
hinder the timely consummation of the Closing; and
(vii) Seller agrees to enter into an escrow agreement with Buyer
and Escrow Agent for four thousand two hundred fifty (4,250) square
feet of vacant unleased space on the Property (the "Vacant Space")
known as the "KDA space" for a period of twelve (12) months commencing
on the Closing Date in the amount of One Hundred Nineteen Thousand and
No/100 Dollars ($119,000) annual base rent ($28.00 per square foot
net) ("Rent") plus all amounts attributable to building taxes,
utilities, insurance and other operating expenses (the "Vacancy
Operating Expenses"), pursuant to a document in form attached hereto
as EXHIBIT H (the "Vacancy Escrow Agreement"). The aggregate amount of
One Hundred Thirty-Seven Thousand Seven Hundred Ninety-Two and No/100
Dollars ($137,792.00), constituting Rent plus a reasonable estimate of
the Vacancy Operating Expenses for the term of the Vacancy Escrow
Agreement, shall be deposited with Escrow Agent at Closing (the
"Vacancy Escrow"). As Rent and Vacancy Operating Expenses become due
and payable each month, Escrow Agent shall immediately release such
monthly amounts to Buyer in accordance with the terms of the Vacancy
Escrow Agreement. At the end of the term of the Vacancy Escrow
Agreement, any remainder of Rent and/or Vacancy Operating Expenses in
the Vacancy Escrow which may occur as a result of Seller's leasing the
Vacant Space to another tenant approved by Buyer, shall be returned to
Seller as provided herein. Prior to and after Closing, Seller may
present to Buyer proposed tenants for the Vacant Space. Buyer will not
unreasonably refuse to lease the Vacant Space to any such proposed
tenant provided that such proposed tenant: (1) agrees to execute a
lease covering the Vacant Space, the form of which has been approved
in all respects by Buyer, (2) agrees to lease the Vacant Space in
accordance with terms which are consistent with the terms of, and do
not violate any restrictions or exclusives contained in, other leases
on the Property, (3) agrees that the rent under any lease of the
Vacant Space will in no event be less than the rent paid under the
Vacancy Escrow Agreement, (4) is engaged in a business
12
which is of a nature which is consistent with the current uses of the
Property, (5) is creditworthy in Buyer's reasonable judgment, and (6)
agrees to enter into lease terms equal or more favorable to the
landlord than the terms set forth in the "Leasing Guidelines" attached
to the Vacancy Escrow Agreement as Exhibit B. In the event the Vacant
Space is leased to such proposed tenant, (1) the Vacancy Escrow
Agreement shall automatically terminate as of that date upon which
said proposed tenant commences rental payment for the Vacant Space,
and (2) Seller shall pay Buyer the lesser of (i) the remaining Rent
due under the Vacancy Escrow Agreement or (ii) Seller's proportionate
share of the costs attributable to the installation of such proposed
tenant, including legal costs, leasing commissions, tenant
improvements and tenant allowances, which shall be calculated by
multiplying such costs by a fraction, the numerator of which shall be
the number of months remaining in the term of the Vacancy Escrow
Agreement, and the denominator of which shall be the total number of
months in the replacement tenant's lease term.
(viii) On or before the end of the Due Diligence Period, Seller
having obtained and delivered to Buyer: (a) an unconditional and final
waiver by Hallmark of the early termination option granted to Hallmark
pursuant to Paragraph 2(d) of that certain Standard Shopping Center
Lease dated September 11, 2000, as amended; and (b) an unconditional
and final waiver by The Avenue of the early termination option granted
to The Avenue pursuant to Paragraph 2 of that certain Second Amendment
to Shopping Center dated August 29, 1996.
(ix) On or before the end of the Due Diligence Period, Seller
having obtained and delivered to Buyer an amendment to that certain
Lease Agreement with Signature Group, Inc. ("Signature Cleaners
Lease"), obligating such tenant to convert its dry cleaning operations
to a "wet" or "green" system, in form and content reasonably
acceptable to Buyer, and Seller having escrowed in a manner reasonably
acceptable to Buyer sufficient funds to accomplish such conversion
which will be the obligation of tenant under the Signature Cleaners
Lease.
(x) On the Closing Date, all of the tenant leases listed in the
List of Tenant leases attached as EXHIBIT C shall be in full force and
effect, and all of the tenants listed shall be open and operating in
their respective premises.
(xi) Seller having obtained and delivered to Buyer, at Seller's
sole cost and expense, a replacement seven (7) year warranty
reasonably acceptable to Buyer, on all outlot buildings and that
certain portion of the roof over the Old Navy premises, or, if such
replacement roof warranty is not available, Seller shall give Buyer a
credit against the Purchase Price at Closing in the amount of
$100,000.00.
(xii) On or before the end of the Due Diligence Period, Seller
having executed and delivered to Buyer the Audit Representation Letter
referred to in Paragraph 34 hereof, in the form attached hereto and
made a part hereof as EXHIBIT P.
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(b) Seller's obligations to perform hereunder are expressly contingent
and conditional upon the satisfaction of the following:
(i) Buyer shall have deposited or have caused to be deposited with
the Escrow Agent all documents and funds required of Buyer to be
deposited into Escrow hereunder; and
(ii) The representations and warranties of Buyer contained in
subsection 8(b) of this Agreement shall be true and correct as of the
Closing Date.
(c) The parties acknowledge that the conditions precedent set forth in
subsection (a) above are for the benefit of Buyer and that the conditions
precedent set forth in subsection (b) above are for the benefit of Seller.
Unless otherwise specifically set forth herein, the date by which the
conditions precedent must be satisfied shall be the Closing Date. If any of
the conditions precedent set forth in subsection (a) (other than subsection
9(a)(iv) above) or subsection (b) above are not satisfied on or before the
date which is ten (10) days after written notice by the party for whose
benefit the condition precedent exists, such party shall have the right to
terminate this Agreement by written notice of termination given to the
other party, however, such right to terminate shall not exist if the party
who received written notice is affirmatively trying to cure. If the
condition precedent set forth in subsection 9(a)(iv) above is not satisfied
on or before the date which is ten (10) days prior to Closing, then Buyer
shall have five (5) days upon receipt of written notice from Seller to
Buyer to provide written notice to Seller of its election to either (i)
terminate this Agreement or (ii) waive the condition precedent set forth in
subsection 9(a)(iv) above and proceed to Closing as otherwise provided
herein. If a notice of termination is given, Escrow Agent shall return all
documents and funds, except the Nonrefundable Deposit in accordance with
Section 2(b) herein, previously deposited into escrow, to the party so
depositing same, except if the events described in subsections 9(b)(i) and
9(b)(ii) are not satisfied in accordance with all notice and cure periods
as provided in this subsection 9(c), the Deposit shall be transferred to
Seller, and neither party shall have any further liability to the other
hereunder, except as otherwise provided herein. Notwithstanding the
foregoing, a party for whose benefit the condition precedent exists shall
have the right to waive satisfaction thereof, in which event this Agreement
shall proceed to Closing as otherwise provided herein. Unless notice of
failure to satisfy conditions precedent is given as above provided, all
conditions precedent shall be deemed satisfied. Notwithstanding the
foregoing, if the other party is in default under this Agreement, nothing
herein shall prevent the non-defaulting party from pursuing its remedies as
provided in this Agreement.
10. RISK OF LOSS.
(a) If any part of the Property is damaged or destroyed by fire or any
other cause ("Damage") or subject to a pending, threatened, or completed
taking by condemnation or eminent domain, or a proposed conveyance under
threat of either ("Taking"), Seller shall promptly notify Buyer of the
same.
(b) If the extent of the Damage is in excess of Five Hundred Thousand
Dollars ($500,000.00) as reasonably determined by Seller and its
contractors, in
14
consultation with the Buyer, or if any Taking materially adversely affects
the operation of the Property (including without limitation parking or
access) as it existed prior to the Taking, Buyer shall have the option to
either (i) terminate this Agreement by giving written notice of such
termination within ten (10) days after Seller's notice of such Damage or
Taking, as the case may be or (ii) continue with this transaction in
accordance with the terms of this Agreement and without any adjustment in
the Purchase Price, except as set forth below, by delivery of written
notice of Buyer's election to Seller within ten (10) days after receipt of
Seller's notice of such Damage or Taking, as the case may be. If this
Agreement is terminated, Escrow Agent shall return all documents and funds,
except the Nonrefundable Deposit, previously deposited into escrow to the
party so depositing same and neither party shall have any further liability
to the other hereunder, except as otherwise provided herein.
(c) If this Agreement is not terminated pursuant to subsection 10(b)
above, Seller (i) may elect to repair and restore the Premises in a good
and workmanlike manner prior to Closing so that the Property is in the same
or better condition as it existed prior to such Damage or Taking or (ii)
shall assign to Buyer Seller's rights to the proceeds of any compensation
or insurance payable. Buyer shall remain obligated to perform this
Agreement, and in the case of damage or destruction covered by insurance,
the Purchase Price shall be reduced by the amount of the deductible, if
any, under the insurance policy or policies covering the Property.
11. CLOSING. The term "Closing" as used in this Agreement shall mean the
consummation of the transactions contemplated under this Agreement, which shall
occur on or before fifteen (15) days after the expiration of the Due Diligence
Period (the "Closing Date") in the offices of Escrow Agent. On the Closing Date,
Escrow Agent shall file for record the Deed (as hereinafter defined) and such
other instruments as Buyer may require to be recorded or as may be necessary to
allow the Title Company to issue the Policy. Subject to the rights of tenants as
tenants under the Leases, Seller shall deliver possession of the Property at
Closing.
12. PRORATIONS AND CHARGES.
(a) (i) At Closing, Buyer and Seller shall prorate as of the Closing
Date those items of income and expense that are capable of an exact
determination. For those items of income and expense that are
incapable of an exact determination as of the Closing Date, Buyer and
Seller shall make a good faith estimate of the closing prorations
using the most recent ascertainable amounts of or other reliable
information in respect of each such item of income and expense. Buyer
and Seller shall use their commercially reasonable efforts to obtain
an exact determination of the remaining items of income and expense
within sixty (60) days after the end of the calendar year in which the
Closing Date occurs. After approval of such report, if Buyer owes
money to Seller, Buyer promptly shall pay such overage to Seller, or
if Seller owes Buyer money, Seller promptly shall pay the amount so
owed to Buyer.
(ii) Notwithstanding anything to the contrary contained in Section
12(a)(i), taxes, real property taxes, special taxes, assessments and
sewer charges (collectively, "Taxes") for the year 2003 (payable in
2004) shall not be
15
prorated and shall be payable as provided herein. Seller shall pay all
Taxes for the calendar year 2003 (payable in 2004) on or prior to
Closing. Buyer shall reimburse Seller for any amounts received by
tenants for Taxes for the year 2003 (payable in 2004) within thirty
(30) days of Buyer's receipt of same. Seller shall have the right to
pursue tenants for reimbursements of said amounts if Buyer fails to
reimburse Seller with same. Taxes for calendar year 2004 (payable in
2005) shall be prorated at Closing based on the proportionate share of
Taxes allocated to all "non-material tenants" and Buyer shall receive
at Closing a credit based on the number of days from January 1, 2004
to the Closing Date (based upon the most recent final tax xxxx). Taxes
for calendar year 2004 (payable in 2005) shall not be prorated for the
proportionate share of Taxes allocated to those "material tenants"
described on EXHIBIT I, which is attached to and made a part of this
Agreement, such tenants having greater than six (6) years remaining on
their lease term, and Buyer shall be solely responsible for such
Taxes.
(iii) Seller shall notify all water, gas, electric and other
utility companies servicing the common areas of the Property
(collectively, the "Utility Companies") of the sale of the Property to
Buyer and that all utility bills for the period commencing as of the
day of Closing are to be sent to Buyer at the notice address provided
in Section 18 of this Agreement.
(iv) Notwithstanding anything to the contrary in Section 12(a)(i),
proration of percentage rent payable by tenants of the Property shall
be governed by this Section 12(a)(iv). Percentage rent payable by
tenants of the Property for calendar year 2004 shall be prorated as
provided herein. Any monthly or quarterly percentage rent received by
Seller before Closing shall be retained by Seller. Any monthly or
quarterly percentage rent received by Buyer after Closing shall be
retained by Buyer. Any annual percentage rent received by Buyer after
the Closing shall be prorated between Seller and Buyer based upon that
portion of the calendar year in which Seller and Buyer, respectively,
were the owners of the Property. For example, if annual percentage
rent of $12,000 is due at the end of a tenant's fiscal year ending
October 31, 2004 and the Closing occurs on August 31, 2004, then
Seller shall receive a payment of $10,000 and Buyer shall retain
$2,000. Also for example, if annual percentage rent of $12,000 is due
at the end of a tenant's calendar year and the Closing occurs on
August 31, 2004, then Seller shall receive a payment of $8,000 and
Buyer shall retain $4,000.
(v) Notwithstanding anything to the contrary in Section 12(a)(i),
proration of common area maintenance ("CAM") and insurance
("Insurance") charges payable by tenants of the Property shall be
governed by this Section 12(a)(v). To the extent CAM revenue and
Insurance received by Seller prior to Closing exceed the actual
expenses for which such CAM and Insurance are paid, Seller shall
credit Buyer at Closing with the amount of such excess. To the extent
CAM revenue and Insurance received by Seller prior to Closing are less
than the actual expenses for which such CAM and Insurance are paid,
Buyer shall pay to Seller any payments actually received from tenants
for such CAM and Insurance payments. Buyer and Seller shall cooperate
to reconcile with the tenants for the entire year of 2004, provided
that any increases in expenditures for any capital
16
improvements after the Closing Date shall be disregarded for purposes
of such reconciliation. Seller shall have the right to submit to Buyer
any CAM and Insurance bills received by Seller which are attributable
to the month of Closing, to the extent such bills can be passed
through to tenants as CAM and Insurance charges.
(vi) The provisions of this subsection 12(a) shall survive the
Closing and the recording of the Deed for four hundred fifty days and
shall not be merged thereby. For purposes of computing any prorations
required under this Section, the Closing Date shall be a day of income
and expense to Buyer.
(vii) Seller shall be obligated to pay the cost of any leasing
commission and tenant improvements that are due and payable on or
before the Closing with respect to existing leases. Any leasing
commissions and tenant improvement costs incurred for leases entered
into after the date hereof and before the Closing (which have been
approved in writing by Buyer) shall be prorated between Seller and
Buyer in the same proportion as the rental income received by Seller
prior to the Closing and the rental income to be received by Buyer
after the Closing bears to the total rental income provided for over
the term of the new lease. For example, if a new lease involved a
leasing commission of $10,000, a monthly rental income of $1,000, a
rental income over the term of the lease of $60,000 and the new lease
was in effect six months prior to the Closing, Seller would be
responsible for $1,000 of the leasing commission and Buyer would be
responsible for $9,000 of the leasing commission. If Seller has not
paid its proportionate share, then Buyer shall be entitled to a credit
at Closing and in the event Seller has paid more than its
proportionate share, then Seller shall be entitled to a credit at
Closing. In regard to leases existing as of the date hereof, Seller
represents and warrants to Buyer that installments of leasing
commissions and tenant improvement costs that are due and payable
after the Closing total $0.00. All leasing commissions and tenant
improvement costs relating to the exercise of any expansion, extension
or renewal option which would first become effective prior to Closing
shall be prorated, between Seller and Buyer in the same proportion as
the rental income received by Seller prior to the Closing and the
rental income to be received by Buyer after the Closing bears to the
total rental income provided for over the term of the expanded,
extended or renewed lease. (See the example set forth above). If
Seller has not paid its proportionate share as of Closing, then Buyer
shall be entitled to a credit at Closing and in the event Seller has
paid more than its proportionate share, then Seller shall be entitled
to a credit at Closing.
(viii) Buyer shall receive a credit against the Purchase Price in
an amount equal to the full amount of tenant cash security deposits
(together with any interest earned thereon to the extent required to
be paid to tenants under the Leases). Seller shall use commercially
reasonable efforts to effectuate an assignment or substitution of any
non-cash security held in connection with the Leases, including any
letters of credit (which would be transferred and assigned by the
issuing bank such that Buyer is the named beneficiary of such letter
of credit at or prior to Closing), provided however, if any such
letters of credit are not assignable, Seller shall have the right to
substitute cash in lieu thereof.
17
(b) Notwithstanding anything to the contrary contained in Section
12(a)(1), proration of minimum annual rent shall be governed by this
Section 12(b). Minimum annual rent payable by tenants of the Property for
the month in which the Closing occurs shall be prorated as of the Closing
Date as if all such minimum annual rents have been received by Seller on
their due date (i.e., on an accrual basis). If on the Closing Date any
tenant is delinquent in the payment of rent or any other monetary
obligations, such delinquent rent shall remain the property of Seller.
During the three(3) month period immediately following the Closing Date,
Buyer shall make a good faith effort to collect such delinquent rent on
Seller's behalf, provided however, Buyer shall in no event be obligated to
xxx tenants to collect such delinquent rent. During such three(3) month
period, Seller shall take no action to collect such delinquent rent.
Notwithstanding the foregoing, in connection with Zainy Brainy, Xxxxxxxxxx
Deli (former tenants of the Property) and the KDA space, (i) Seller may
take any action to collect delinquent rent, (ii) any delinquent rent
collected shall not be prorated, and (iii) Seller shall keep any delinquent
rent collected. After the expiration of such three(3) month period, Seller
shall have the right to collect the same from such tenant, including the
right to xxx such tenant for nonpayment of rent, (but shall not have any
right to terminate such tenant's lease or exercise any eviction remedy
under the lease.) If Buyer receives any amount from such tenant within one
(1) year after Closing, Buyer shall apply the same first to Buyer's cost of
collections, if any, then to Buyer, until all rental and other obligations
of such tenant accruing on or after the Closing Date have been brought
current, and then to Seller until all delinquent minimum annual rent of
such tenant as been paid to Seller.
(c) At Closing, Seller shall be charged and, where applicable, Buyer
shall be credited the following:
(i) the applicable prorations in accordance with Sections
12(a) and (b) above;
(ii) security deposits (together with any interest to be paid
thereon) held by Seller pursuant to the Tenant Leases;
(iii) one-half (1/2) of the escrow fee;
(iv) all brokerage fees payable in connection with this
transaction to the extent required by Section 20 of this Agreement;
(v) cost of the title examination, the Commitment and the
Policy (exclusive of all endorsements thereto other than extended
coverage which shall be paid by Seller);
(vi) any state, county and municipal transfer tax, recordation
tax and conveyance fee;
(vii) Seller's attorneys' fees;
(viii) costs of discharging and releasing all Monetary Liens to
the extent required by Section 3(e) of this Agreement;
18
(ix) the cost of the Survey;
(x) one-half (1/2) of the escrow fee attributable to the
Vacancy Escrow Agreement; and
(xi) one-half (1/2) of all other fees of a similar nature in
connection with the consummation of the transactions contemplated by
this Agreement and not expressly set forth in this Agreement.
(d) At Closing, Buyer shall be charged and, where applicable, Seller
shall be credited, the following:
(i) The applicable prorations in accordance with
Sections 12(a) and (b) above;
(ii) cost of all endorsements to the Policy;
(iii) the cost of recording the Deed and such other instruments as
Buyer or the Title Company may consider necessary or desirable to be
recorded;
(iv) one-half (1/2) of the escrow fee;
(v) Buyer's attorneys' fees;
(vi) cost of Buyer's due diligence ;
(vii) costs relating to any financing obtained by Buyer;
(viii) one-half (1/2) of the escrow fee attributable to the
Vacancy Escrow Agreement; and
(ix) one-half (1/2) of all other fees of a similar nature in
connection with the consummation of the transactions contemplated by
this Agreement and not expressly set forth in this Agreement.
13. INSTRUMENTS OF CONVEYANCE AND OTHER DOCUMENTS.
(a) On or prior to the Closing Date, Seller shall fully and properly
execute and deposit with Escrow Agent the following documents:
(i) a deed (the "Deed") in the form of EXHIBIT J which is attached
hereto and made a part of this Agreement, conveying to Buyer or
Buyer's nominee fee simple title to the Real Property, free and clear
of all liens and encumbrances, except for the Permitted Exceptions;
(ii) a xxxx of sale (the "Xxxx of Sale") in the form of EXHIBIT K,
which is attached to and made a part of this Agreement, conveying to
Buyer or Buyer's nominee good title to the Personal Property free and
clear of all liens and encumbrances;
19
(iii) an assignment of the Tenant Leases (the "Assignment of
Leases"), in the form of EXHIBIT L, which is attached to and made a
part of this Agreement, assigning to Buyer or Buyer's nominee all of
Seller's right, title, and interest as lessor under the Tenant Leases;
(iv) an assignment of the Service Contracts and the Intangible
Property (the "Assignment of Service Contracts and Intangible
Property"), in the form of EXHIBIT M, which is attached to and made a
part of this Agreement, assigning to Buyer or Buyer's nominee all of
Seller's right, title, and interest in and to the Service Contracts
and the Intangible Property;
(v) a counterpart settlement statement (the "Settlement
Statement") setting forth the Purchase Price and all amounts charged
against or credited to Buyer and Seller pursuant to Section 12 of this
Agreement;
(vi) an affidavit in the form of EXHIBIT N, which is attached to
and made a part of this Agreement, regarding the non-foreign status of
Seller;
(vii) the authority documents of Seller authorizing the sale of
the Property ("Seller's Authorization");
(viii) a letter to each tenant under the Tenant Leases stating
that the Property has been conveyed to Buyer as of the Closing Date
and advising each tenant that all future payments of rent and all
other future correspondence regarding the Property should be delivered
to Buyer (the "Tenant Letters");
(ix) notice of termination of any agreement with any property
manager or leasing agent with respect to the Property;
(x) any applicable transfer tax statements;
(xi) keys and other access devices for the Property in Seller's
possession which shall be delivered outside of Closing; and
(xii) three (3) executed counterparts of the Vacancy Escrow
Agreement.
(b) On or prior to the Closing Date, Buyer shall fully and properly
execute and deposit with Escrow Agent the following documents and funds:
(i) the Purchase Price, subject to the closing adjustments
contemplated hereby;
(ii) a counterpart of the Assignment of Lease;
(iii) a counterpart of the Assignment of Service Contracts and
Intangible Property;
(iv) the authority documents of Buyer authorizing the purchase
of the Property ("Buyer's Resolution");
20
(v) a counterpart Settlement Statement setting forth the Purchase
Price and all amounts applied on behalf of or charged against or
credited to Buyer and Seller pursuant to Section 12 of this Agreement;
and
(vi) three (3) executed counterparts of the Vacancy Escrow
Agreement.
14. DELIVERY AND PAYMENT. Upon consummation of the transactions
contemplated in this Agreement, Escrow Agent shall disburse funds and documents
as follows:
(a) To Seller:
(i) a copy of the Settlement Statement;
(ii) the Purchase Price, LESS amounts charged to Seller; and
(iii) executed originals of the Assignment of Lease, the
Assignment of Service Contracts and Intangible Property, Vacancy
Escrow Agreement and a copy of the Tenant Notice Letters and Buyer's
authorization; and
(b) To Buyer:
(i) a copy of the Settlement Statement;
(ii) the recorded Deed;
(iii) executed originals of the Xxxx of Sale, the Assignment of
Leases, the Assignment of Service Contracts and Intangible Property,
Vacancy Escrow Agreement and the Tenant Letters and a copy of Seller's
Authorization;
(iv) executed originals of all affidavits and other instruments
deposited into escrow pending Closing;
(v) the Policy; and
(vi) the balance, if any, in the escrow account to the credit of
Buyer by check payable to Buyer.
Immediately after Closing, Seller shall deliver, or cause its property manager
to deliver, to Buyer original executed copies of all Tenant Leases and Service
Contracts, the original plans and specifications for the Improvements, building
permits, certificates of occupancy, and such other certificates, licenses, and
permits as may be necessary or desirable for operation of the Property, and the
originals or photocopies of all books, accounts, and records relating to the
Property other than Seller's partnership books and records to the extent in
Seller's possession or control.
15. BREACH.
(a) In the event Seller defaults in the performance of its obligations
under this Agreement and does not cure such default within three (3)
business days after written notice thereof, Buyer, as its sole remedy, (i)
shall be entitled to terminate this Agreement
21
and receive a return of the Deposit, or (ii) shall have the remedy of
specific performance or (iii) recover as liquidated damages the amount of
One Hundred Thousand Dollars ($100,000.00). In the event Buyer defaults and
does not cure such default within three (3) business days after written
notice thereof, Seller, as its sole remedy exclusive of all other remedies
at law or in equity, shall have the right to terminate this Agreement and
receive payment of the Deposit as stipulated, liquidated damages and not as
a penalty.
(b) Notwithstanding anything to the contrary contained herein, if the
closing occurs, in no event shall the liability of Seller under this
Agreement or any document executed by Seller in connection with the
terminations contemplated hereby exceed Two Million Dollars ($2,000,000.00)
in the aggregate. This Section 15(b) shall survive closing and the
recordation of the Deed (and shall not be merged therein).
(c) Any claims for damages under this Agreement may only be made
against a party hereto and no liability under this Agreement shall attach
to any shareholder, director officer, manager or member of any such party.
16. NO OUTSIDE REPRESENTATION. This Agreement, including the Schedules
attached hereto and incorporated herein, contains all of the terms and
conditions agreed upon, it being understood that there are no outside
representations or oral agreements. Any modification of this Agreement shall be
in writing and shall be signed by Seller and Buyer. Buyer acknowledges that,
except as expressly contained in this Agreement, (a) neither Seller nor anyone
acting for or on behalf of Seller has made any representation, statement,
warranty, or promise to Buyer concerning the physical aspects and condition of
the Property, any dimensions or specifications of any of the Property, the
feasibility, desirability, or convertibility of the Property into any particular
use, or the projected income or expenses for the Property; (b) in entering into
this Agreement, Buyer has not relied on any representation, statement, or
warranty of (i) Seller (except those contained in this Agreement), or (ii)
anyone acting for or on behalf of Seller, all of which are to be independently
verified by Buyer; (c) Buyer is purchasing the Property based solely upon
Buyer's own inspection and examination thereof; (d) Buyer is purchasing the
Property in its then "AS-IS, WHERE-IS, WITH ALL FAULTS" physical condition and
its then "AS-IS, WHERE-IS, WITH ALL FAULTS" state of repair without any
representation, statement, or warranty of Seller (except those contained in this
Agreement) or anyone acting for or on behalf of Seller; and (e) Buyer does
hereby waive, and Seller does hereby disclaim, all warranties of any type or
kind, express or implied, whatsoever with respect to the Property, including, by
way of description, but not limitation, those of fitness for a particular
purpose, merchantability, tenantability, habitability, and use. The provisions
of this Section 16 shall survive Closing and delivery of the Deed and shall not
be merged thereby.
17. SURVIVABILITY. Except for the rights and obligations of Seller and
Buyer in this Agreement which expressly survive the Closing and all
representations and warranties made herein which shall in no event survive for
more than twelve (12) months after the Closing, no other rights or obligations
of Seller or Buyer shall survive the Closing.
18. NOTICES. All notices required to be given or delivered under this
Agreement shall be in writing and shall be deemed validly given (a)
immediately upon hand delivery, (b) one (1) business day following deposit with
a courier or express service guaranteeing overnight delivery, (c) two (2) postal
delivery days after deposit in the U.S. mails by certified mail, return receipt
22
requested, or (d) immediately upon the telephonically confirmed receipt of a
facsimile transmission, addressed as follows:
If to Seller: Rubloff Development Group, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxx
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Buyer: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Xxxxx Xxxx, Esq.
The Inland Real Estate Group, Inc./Law Dept.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000 Ext. 2854
Telecopier: (000) 000-0000
or to such other person or address as Seller or Buyer shall have given by notice
as herein provided.
19. BROKER'S COMMISSION. Except for Mid-America whose fees shall be paid by
Seller pursuant to a certain brokerage agreement between Mid-America and Seller,
Seller and Buyer each represent and warrant to the other that the warranting
party has had no dealing with any other dealer, real estate agent, or broker so
as to entitle such other dealer, agent, or broker to receive any commission or
fee in connection with sale of the Property to Buyer. If for any reason any such
commission or fee shall become due, the party dealing with such dealer, agent,
or broker shall pay any such commission or fee and shall indemnify, defend, and
save the other party harmless from and against any and all claims for any such
commission or fee and from any attorneys' fees and litigation or other expenses
relating to any such claim.
20. BINDING EFFECT. This Agreement shall benefit and bind the parties and
the heirs, legal representatives, successors, and assigns of each of them.
23
21. ASSIGNMENT. This Agreement may be assigned by Buyer, without the prior
written consent of Seller to any direct or indirect subsidiary of The Inland
Real Estate Group of Companies, Inc. (a "Buyer Affiliate") or to a real estate
investment trust or subsidiary thereof which Buyer or a Buyer Affiliate is a
sponsor. In the event of any assignment, (a) original Buyer shall remain liable
for the performance of all of Buyer's obligations under this Agreement; and (b)
Seller shall incur no additional expense on account of such assignment.
22. SECTION HEADINGS. All section headings and other titles and captions
used in this Agreement are for convenience only, do not form a substantive part
of this Agreement, and shall not restrict or enlarge any substantive provisions
of this Agreement.
23. PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural, as the context
and the identity of the person or persons may require.
24. AGREEMENT IN COUNTERPARTS. This Agreement may be executed in
counterparts and all such counterparts shall constitute one agreement binding on
all the parties, notwithstanding that all the parties are not signatories to the
same counterpart.
25. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Illinois.
26. TIME OF THE ESSENCE; FAILURE TO ENFORCE NOT A WAIVER. Time is of the
essence of this Agreement. If any of the dates for an action specified in this
Agreement fall on a Saturday, a Sunday or a holiday, then the date for such
action shall be deemed to be extended to the next business day. Except as may be
expressly provided in this Agreement, failure by Seller or Buyer to enforce any
right shall not constitute a waiver thereof.
27. SEVERABILITY. If any provision in this Agreement, or its application to
any person or circumstance, is held to be invalid or unenforceable to any
extent, that holding shall not affect the remainder of this Agreement or the
application of that provision to persons or circumstances other than that to
which it was held invalid or unenforceable.
28. EXCLUSIVITY. Seller may discuss the Property with other prospective
Buyer(s) after the execution of this Agreement through the termination of the
Due Diligence Period, however, Seller may not execute any letters of intent or
agreements in connection therewith during such time. After the termination of
the Due Diligence Period, provided this Agreement is in full force and effect,
Buyer has made the Deposit in accordance with Section 2(b) herein and Buyer is
not in default hereunder, Seller agrees to refrain from negotiating with any
other prospective Buyer(s) or entering into an agreement to sell the Property or
market the Property for sale.
29. INDEMNITIES.
(a) Definition of Claims; Survival of Representations and Warranties.
(1) As used in this Agreement, the term "CLAIM" or "CLAIMS" means
any and all direct or indirect, demands, claims, notices of violation,
notices of probable violation, filings, investigations, administrative
proceedings, actions, causes of action, suits, other
24
legal proceedings, judgments, assessments, damages, deficiencies,
taxes, penalties, fines, obligations, responsibilities, liabilities,
payments, charges, costs, and expenses (including without limitation
costs and expenses of operating the Property) of any kind or character
(whether or not asserted prior to Closing, and whether known or
unknown, fixed or unfixed, conditional or unconditional, based on
negligence, strict liability or otherwise, xxxxxx or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute,
contingent, or otherwise), including without limitation penalties and
interest on any amount payable as a result of any of the foregoing,
any legal or other costs and expenses incurred in connection with
investigating or defending any Claim, and all amounts paid in
settlement of Claims. Without limiting the generality of the
foregoing, the term "Claims" specifically includes, without
limitation, any and all Claims arising from, attributable to or
incurred in connection with any (i) breach of contract, (ii) loss or
damage to property, injury to or death of persons, and other tortious
injury, and (iii) violations of applicable laws, rules, regulations,
orders or any other legal right or duty actionable at law or equity.
(2) Unless otherwise agreed to in writing by Sellers and Buyer,
all representations and warranties contained herein will survive the
closing of this transaction (but only as to the status of facts as
they exist as of the Closing), it being understood that neither
Sellers nor Buyer makes any representations or warranties which would
apply to changes occurring after Closing. However, no Party to this
Agreement will be entitled to make a Claim against any other Party
relating to the inaccuracy of the representations and warranties of
the other Party to this Agreement unless the Party seeking
indemnification notifies the other Party of that Claim within twelve
(12) months of the Closing Date.
(b) Application of Indemnities.
(1) COVERED CLAIMS AND PARTIES. All indemnities set forth in this
Agreement extend to the officers, directors, employees, managers,
members, partners, and affiliates of the indemnified Party. The
indemnities set forth in this Agreement do not extend to any part of
an indemnified Claim that (i) is the result of the gross negligence,
willful misconduct, or fraud of the indemnified Party, (ii) is the
result of the imposition of punitive damages on the indemnified party
arising from the acts of the indemnified Party, or (iii) is the result
of the imposition of civil or criminal fines or penalties by any court
or regulatory authority on the indemnified Party due to the
indemnified Party's failure to comply with applicable laws,
regulations or orders.
(2) EXPRESS NEGLIGENCE DISCLOSURE. UNLESS THIS AGREEMENT EXPRESSLY
PROVIDES TO THE CONTRARY, THE INDEMNITY, RELEASE, WAIVER AND
ASSUMPTION PROVISIONS SET FORTH IN THIS AGREEMENT APPLY REGARDLESS OF
WHETHER THE INDEMNIFIED PARTY (OR ITS EMPLOYEES, PARTNERS, AGENTS,
CONTRACTORS, SUCCESSORS OR ASSIGNS) CAUSES, IN WHOLE OR PART, AN
INDEMNIFIED CLAIM, INCLUDING WITHOUT LIMITATION INDEMNIFIED CLAIMS
ARISING OUT OF OR RESULTING, IN WHOLE OR IN PART, FROM, OUT OF OR IN
CONNECTION WITH THE CONDITION OF THE PROPERTY OR THE INDEMNIFIED
PARTY'S (OR ITS EMPLOYEES', PARTNERS', AGENTS', REPRESENTATIVES',
CONTRACTORS', SUCCESSORS' OR ASSIGNS') SOLE, JOINT, COMPARATIVE
25
OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, BREACH OF REPRESENTATION,
WARRANTY OR AGREEMENT, OR FAULT. THE PARTIES ACKNOWLEDGE THAT THIS
STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS
CONSPICUOUS.
(3) OTHER LIMITATIONS. The indemnities of the indemnifying Party
in this Agreement do not cover or include any amounts that the
indemnified Party may legally recoup from other third parties under
other agreements, and for which the indemnified Party is reimbursed by
any third Party. The indemnifying Party will pay all costs incurred by
the indemnified Party in obtaining reimbursement from third parties.
The indemnities in this Agreement do not relieve the parties to this
Agreement from any obligations to third parties.
(c) BUYER'S INDEMNITY. Buyer shall indemnify, defend and hold Sellers
harmless from and against any and all Claims caused by, resulting from or
incidental to:
(1) Any inaccuracy of any representation or warranty of Buyer
set forth in SECTION 8(b);
(2) Any breach of, or failure to perform or satisfy, any of the
covenants and obligations of Buyer hereunder (other than Buyer's
failure to close the transaction, so long as Buyer cooperates with
Sellers' request for the Xxxxxxx Money);
(3) Subject to SECTION 19, any obligations for brokerage or
finder's fee or commission incurred by Buyer in connection with the
transactions contemplated hereby;
(4) Any liability or damage caused by Buyer's inspection of
the Property under this Agreement; and
(5) Any Claim arising after Closing.
(d) SELLER'S INDEMNITY. Seller shall indemnify, defend and hold Buyer
harmless from and against any and all Claims caused by, resulting from or
incidental to:
(1) Any inaccuracy of any representation or warranty of the
Seller set forth in SECTION 8(a);
(2) Any breach of, or failure to perform or satisfy, any of the
covenants and obligations of the Seller with respect to the Property,
which are to be performed or complied with prior to Closing;
(3) Subject to SECTION 19, any obligations for brokerage or
finder's fee or commission incurred by Seller or the Property in
connection with the transactions contemplated hereby; and
(4) Any claim arising prior to Closing, including but not limited
to claims regarding tenant reconciliations for periods ending prior to
the Closing Date.
26
(e) NOTICES AND DEFENSE OF INDEMNIFIED CLAIMS. Each indemnified Party
shall immediately notify each indemnifying Party of any Claim of which it
becomes aware and for which it is entitled to indemnification from such
indemnifying Party under this Agreement. The indemnifying Party shall be
obligated to defend at the indemnifying Party's sole expense any litigation or
other administrative or adversarial proceeding against the indemnified Party
relating to any Claim for which the indemnifying Party has agreed to indemnify
and hold the indemnified Party harmless under this Agreement. The indemnifying
Party shall have control over the defense and/or settlement of such Claim using
counsel acceptable to the indemnified Party. However, the indemnified Party
shall have the right to participate with the indemnifying Party in the defense
of any such Claim at its own expense. The indemnified Party shall assist and
cooperate in the prosecution or defense of such Claims.
(f) WAIVER OF CONSEQUENTIAL AND PUNITIVE DAMAGES. NONE OF THE PARTIES
SHALL BE ENTITLED TO RECOVER FROM ANY OTHER PARTY, AND EACH PARTY RELEASES EACH
OTHER PARTY FROM, ANY LOSSES, COSTS, EXPENSES, OR DAMAGES ARISING UNDER THIS
AGREEMENT OR IN CONNECTION WITH OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
IN THIS AGREEMENT ANY AMOUNT IN EXCESS OF THE ACTUAL COMPENSATORY DAMAGES
SUFFERED BY SUCH PARTY. EACH PARTY WAIVES, AND RELEASES THE OTHER PARTIES FROM
ANY RIGHT TO RECOVER PUNITIVE, SPECIAL, EXEMPLARY AND CONSEQUENTIAL DAMAGES
ARISING IN CONNECTION WITH OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED IN
THIS AGREEMENT; PROVIDED, HOWEVER, ANY SUCH DAMAGES RECOVERED BY A THIRD PARTY
(OTHER THAN SUBSIDIARIES, PARTNERS, AFFILIATES, OR PARENTS OR A PARTY) FOR WHICH
A PARTY OWES THE OTHER PARTY AN INDEMNITY UNDER THIS SECTION 10 SHALL NOT BE
WAIVED.
(g) EXCLUSIVE REMEDY. The terms and provisions of this SECTION 10
shall be the sole and exclusive remedy of each of the Parties indemnified
hereunder with respect to the representations, warranties, and covenants of the
Parties set forth in or relating to this Agreement and the other documents
executed and delivered hereunder, regardless of whether such Claims are based on
contract, tort, securities laws, strict liability, or other principles.
(h) DEFENSES AND COUNTERCLAIMS. If an indemnifying Party is required
to assume any obligation or liability of any indemnified Party pursuant to this
Agreement or is required to defend, indemnify or hold the indemnified Party
harmless hereunder, such indemnifying Party shall, notwithstanding any other
provision hereof to the contrary, be entitled to the use and benefit of all
defenses (legal and equitable) and counterclaims of such Party in defense of
third party claims arising out of any such assumption or indemnification.
30. INDEMNIFICATION. Seller shall cause Rubloff Development Group,
Inc., an Illinois corporation, as managing member of Seller, to indemnify,
defend and hold Buyer harmless from any and all costs, expenses, claims,
liabilities and demands, including without limitation, any claims made under
Section 902(d) of the Illinois Income Tax Act, made against Buyer and arising
in connection with Seller's breach of the representations and warranties set
forth in
27
Section 8 herein for amounts up to but not exceeding Two Million Dollars
($2,000,000.00) in the aggregate.
31. APPROVALS. Intentionally Omitted.
32. SECTION 1031 EXCHANGE. Either party may consummate the purchase or sale
(as applicable) of the Property as part of a so-called like kind exchange (an
"Exchange") pursuant to Section 1031 of the Code, provided that: (a) the Closing
shall not be delayed or affected by reason of the Exchange nor shall the
consummation or accomplishment of an Exchange be a condition precedent or
condition subsequent to the exchanging party's obligations under this Agreement,
(b) the exchanging party shall effect its Exchange through an assignment of this
Agreement, OR its rights under this Agreement, to a qualified intermediary, (c)
neither party shall be required to take an assignment of the purchase agreement
for the relinquished or replacement property or be required to acquire or hold
title to any real property for purposes of consummating an Exchange desired by
the other party; and (d) the exchanging party shall pay any additional costs
that would not otherwise have been incurred by the non-exchanging party had the
exchanging party not consummated the transaction through an Exchange other than
attorney's fees. Neither party shall by this Agreement or acquiescence to an
Exchange desired by the other party have its rights under this Agreement
affected or diminished in any manner or be responsible for compliance with or be
deemed to have warranted to the exchanging party that its Exchange in fact
complies with Section 1031 of the Code.
33. REPAIR WORK. Seller shall give Buyer a credit against the Purchase
Price at Closing in the amount of $50,000 for the costs attributable to
miscellaneous items of repair at the Property. Notwithstanding the foregoing,
Seller, at its expense, shall repair those items described on EXHIBIT O attached
hereto and made a part hereof ("Repair Work") prior to Closing, provided
however, if the Repair Work is not completed prior to Closing, then Seller and
Buyer agree that Seller shall deposit with Escrow Agent at Closing (the "Repair
Escrow") an amount equal to 125% of the mutually agreeable estimated costs of
the remaining Repair Work. Seller shall deliver to Escrow Agent and Buyer copies
of all contracts, lien waivers and partial lien waivers (if applicable) from all
contractors and subcontractors that have performed any of the Repair Work. Upon
(i) written notice by Seller to Escrow Agent and Buyer ("Repair Notice") and
Buyer's written approval within fifteen (15) days after receipt thereof, which
approval shall not be unreasonably withheld, and (ii) the issuance by the Title
Company of a date-down endorsement confirming no mechanics' liens exist against
the Property as a result of said Repair Work, then Escrow Agent shall
immediately release to Seller amounts equal to the cost of the repair as Seller
completes each item of Repair Work. Seller's Repair Notice shall be deemed
approved by Buyer if Buyer does not give written approval or disapproval to
Escrow Agent of same within such fifteen (15) day period. If Buyer disapproves,
Buyer shall advise Seller of specific reasons for any such disapproval. Any
amounts remaining in the Repair Escrow after completion of the Repair Work shall
be reimbursed to Seller within fifteen (15) days after completion of the Repair
Work. Seller shall also be reimbursed for (i) any amounts received by Buyer
post-Closing under the Property's roof warranty in connection with the roof work
done by Seller as further described on EXHIBIT O and (ii) any CAM reimbursement
amounts received by Buyer post-Closing in connection with any of the other
Repair Work, provided however, Buyer shall in no event expend any additional
amounts in connection with said reimbursements and to the extent any CAM amounts
that are to be reimbursed by tenants to Buyer post-Closing are not so
reimbursed, Buyer shall have no obligation to Seller in connection therewith.
28
34. COOPERATION WITH SELLER'S AUDIT. Seller agrees, at Buyer's expense, to
cooperate fully with Buyer and Buyer's representatives to facilitate Buyer's
evaluations and reports, including at least a one (1) year audit of the books
and records of the Property that qualify, comply with and can be used in a
public offering. Prior to the end of the Due Diligence Period, Seller shall
execute and deliver to Buyer an audit representation letter in the form to be
determined during the Due Diligence Period.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth at the beginning of this Agreement.
SELLER:
RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
BUYER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
------------------------------
Name: G. XXXXXX XXXXXXX
--------------------------
Title: PRESIDENT
-------------------------
30
ACCEPTANCE OF ESCROW
Receipt of an executed copy of the foregoing instrument is hereby
acknowledged, and the undersigned hereby agrees to act as Escrow Agent in
accordance with the foregoing agreement.
CHICAGO TITLE INSURANCE
COMPANY
Date: 10/5/04
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Escrow No.: 24107952 Name: XXXXX X. XXXXXX
---------------------------
Title: AVP
---------------------------
31
INDEX OF EXHIBITS
Exhibit A Legal Description of the Land
Exhibit B Personal Property
Exhibit C Tenant Leases
Exhibit D Service Contracts
Exhibit E Survey Requirements and Surveyor's Certificate
Exhibit F(1) Estoppel Certificate (Tenants)
Exhibit F(2) Estoppel Certificate (Seller)
Exhibit G Financial Statements
Exhibit H Vacancy Escrow Agreement
Exhibit I Material Tenants
Exhibit J Deed
Exhibit K Xxxx of Sale
Exhibit L Assignment of Leases
Exhibit M Assignment of Service Contracts and Intangible Property
Exhibit N FIRPTA Affidavit
Exhibit O Repair Work
Exhibit P Form of Audit Representation Letter
32
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
LOT 1 IN GURNEE TOWN CENTRE SUBDIVISION, BEING A SUBDIVISION OF THE NORTHWEST
1/4 OF SECTION 17, TOWNSHIP 45 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT THEREOF, RECORDED AUGUST 17, 2000 AS DOCUMENT
XX. 0000000, XX XXXX XXXXXX, XXXXXXXX.
PIN(S): 00-00-000-000
Exhibit A-1
EXHIBIT B
PERSONAL PROPERTY
None.
Exhibit B-1
EXHIBIT C
LIST OF TENANT LEASES
TENANT LEASE AMENDMENTS AND MODIFICATIONS
------ ----- ----------------------------
Borders, Inc. October 21, 1999 Lease Guaranty Agreement dated
October 21, 1999
Rezko-Citadel July 26, 2000 None
d/b/a Panda Express
Supercuts, Inc. December 18, 2000 None
Signature Cleaners October 20, 1999 Consent to Sublease dated October
20, 1999
Aerie Development, Inc. and Super November 30, 2000 Lease Guaranty dated November 30,
Subs of Gurnee, Inc. 2000
d/b/a Quizno's Classic Subs
Xxxxxxxx'x Enterprises, Inc. January 4, 2001 First Amendment to Lease dated
January 31, 2001
Towne Vision Center Incorporated June 21, 2001 Lease Guaranty dated June 21,
2001
Xxxxx Xxxxx and Xxxxx Xxxxx Dated August 31, 2002 None
d/b/a Slott's Hots
Starbucks Corporation Dated October 25, 1999 First Amendment to Commercial
Lease dated July 5, 2000; Letter
Agreement dated January 30, 2001
Pier 1 Imports (U.S.), Inc. Dated August 13, 2003 Notice of Lease dated April 2,
2004
AT & T Wireless PCS, Inc. Lease dated October 4, 1999 Letter Agreement dated July 18,
2001; Letter Agreement dated
September 5, 2001
After Hours Formalwear, Inc. Lease dated December 21, 2000 Assignment and Assumption of Lease
d/b/a Modern Tuxedo Rental dated June 30, 2003; Consent and
Estoppel & Amendment dated
June 30, 2003
The Bedding Experts, Inc. February 2, 2000 None
Cali Nails May 10, 2001 None
Radio Shack Corporation July 10, 2001 Letter Agreement dated July 18,
2001
Bath & Body Works, Inc. July 10, 2001 None
Oreck Homecare, L.L.C. February 14, 2000 None
Earthly Goods, Inc. April 24, 2000 Letter Agreement dated October 20,
2000
United Retail Incorporated August 24, 2000 None
d/b/a The Avenue
Nail Pizazz, Inc. July 25, 2001 Lease Guaranty dated July 23,
d/b/a Salon Bliss 2001
Hallmark Specialty Retail Group, September 11, 2000 Letter Agreement dated August 7,
Inc. 2000; Landlord Notification Letter
dated July 19, 2002; Letter Agreement
dated March 14, 2003; First
Amendment dated May l6, 2003
Xxxxx Retail Group, Inc. September 26, 2000 Term Commencement Agreement dated
d/b/a Famous Footwear July 14, 2004
Exhibit C-1
TENANT LEASE AMENDMENTS AND MODIFICATIONS
------ ----- ----------------------------
PPG Architectural Finishes, Lease dated October 26, 1999 First Amendment to Lease Agreement dated
Inc., as Assignee November, 2000; Assignment and Assumption
of Leases dated January 30, 2002;
Assignment and Amendment of Lease Agreement
dated February 1, 2002; License Agreement
re: satellite dish dated August 14, 2003
Cost Plus, Inc. Lease dated October 18, 1999 Memorandum of Lease dated October 18, 1999;
Letter Agreement dated March 12, 2003;
First Amendment to Lease dated
February 20, 2004
LNT West, Inc. Lease dated October 28, 1999 Guaranty dated October 28, 1999; Letter
Agreement dated September 3, 1999; Letter
Agreement dated November 12, 1999, Early
Entrance Agreement dated August 21, 2000;
Letter Agreement dated August 8, 2000; Letter
Agreement dated July 5, 2001; Letter Agreement
dated March 14, 2003; Lease Assignment and
Assumption dated January 4, 2004
Old Navy, Inc. Lease dated September 20, 2000 Memorandum of Lease dated September 20, 2000;
Letter Agreement dated October 11, 2000
KDA Space Vacancy Escrow Agreement dated None
as of Closing Date
Exhibit C-2
EXHIBIT D
LIST OF SERVICE CONTRACTS
1. Water Works Dated Spring and Fall/2004
2. VacuSweep Dated April 12, 2004
3. Tyco Fire and Security Dated September 12, 2005
Exhibit D-1
EXHIBIT E
SURVEY REQUIREMENTS
Certificates of survey shall be made in accordance with the "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys" jointly established by the
American Land Title Association and the American Congress on Surveying and
Mapping in 1999 and meet the accuracy requirements of an Urban Survey as defined
therein.
Each survey map must be an "as built" survey if improvements are situated on
the land and certified to INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation, its lenders and assigns, or its designee, and CHICAGO TITLE
INSURANCE COMPANY by a registered land surveyor approved by Inland Real
Estate Acquisitions, Inc. using the attached surveyor's certificate. The
survey is to have the surveyor's seal affixed to it and is to reflect a
current (within 3 months) date. Older surveys are acceptable if updated and
re-certified. The legal description of the property surveyed must conform to
the legal description contained in the Title Commitment for the property.
Each survey map should show:
1. The legal description contained in the Title Commitment.
2. The name, address, telephone number and job number of the person or
firm preparing the survey.
3. An arrow indicating the true north point and a scale of distances.
4. Basis of bearings.
5. Bearings and distances of exterior boundaries of the property and all
easements appurtenant to the property. If the property is composed of all or
portions of several lots or other legal subdivisions, the boundaries of each
should be indicated by dotted lines and the proper lot number or legal
subdivision designation shown. If the survey comprises more than one parcel,
show interior lines and facts sufficient to insure contiguity. Points of
beginning and all calls in the legal description should be identified.
6. All easements or setback lines of record to which the property is
subject. Show the dimensions and locations of each such easement or setback line
with deed references.
7. Location and of all buildings or other structures with distances,
showing relation to property lines. Specify all improvements under construction.
8. Dimensions of all buildings or other structures.
9. All party walls of buildings or other structures on the property
lines, indicating the thickness of the portions thereon on each side of the
property lines and the nature of the use of said walls on each side.
10. Walls of buildings or other structures which extend over property lines
in either direction with dimensions. If there are encroachments, show and
describe all encroachments upon adjoining property by improvements located on
the subject property or encroachments by improvements located on the adjoining
property onto the subject property, and including in table form on the survey a
list of all encroachments. If there are no encroachments, include a positive
statement that there are no encroachments.
11. Cornices, xxxxx, canopies, baseblocks or other projections over
property lines in either direction with dimensions.
12. All fences, walls and other improvements along the property lines with
dimensions.
13. Location of any railroad tracks and boundaries of railway
rights-of-way affecting the property.
Exhibit X-0
00. All visible wires and cables crossing, entering or leaving the
property; indicate amount of cross arm or wire overhang and all anchors or guy
wires affecting the property, except the ordinary wire service drops.
15. Sidewalks, parkways, curbs, driveways and streets adjoining the
property. Widths and names of streets must be shown. State whether any such
adjoining streets are dedicated public streets which have been accepted for
maintenance by the applicable public entity.
16. Location of the parking and paved areas on the property and the number
of parking spaces provided in each parking area and specify the total number of
parking spaces on the property.
17. Individual land area of each parcel and total land area in square feet
and in acres, including gross square feet and net square feet (as net square
feet may be defined in any applicable purchase agreement).
18. Individual building areas of the slab, base or footing as measured on
the ground and total building area of the slab, base or footing as measured on
the ground in square feet.
19. All street address numbers as and where they exist.
20. Whether or not the subject property appears on any U.S. Department of
H.U.D. Flood Insurance Boundary Map and, if so, further state the map number and
whether or not the subject property appears in the "Flood Hazardous Area" shown
on the map. In addition, state whether or not the subject property is located in
any other designated flood hazard area.
21. The location and direction of flow of existing streams, rivers, surface
drainage systems and wetlands and the location of rubbish fills, sloughs,
springs, filled-in xxxxx or cisterns and seep holes wherever possible.
Exhibit E-2
SURVEYOR'S CERTIFICATE
TO INLAND REAL ESTATE ACQUISITIONS, INC., ITS SUCCESSORS, LENDERS AND ASSIGNS,
INLAND WESTERN GURNEE, L.L.C., ITS SUCCESSORS, LENDERS AND ASSIGNS AND
METROPOLITAN TITLE COMPANY:
THIS IS TO CERTIFY THAT THIS PLAT REPRESENTS A SURVEY MADE ON THE GROUND OF THE
LANDS SHOWN AND DESCRIBED HEREIN (HEREINAFTER: THE "PLATTED LANDS") BY THE
UNDERSIGNED PERFORMED IN ACCORDANCE WITH THE "MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS" AS ADOPTED BY ALTA, ACSM AND NSPS
IN 1999 AND, PURSUANT THERETO, THAT: (i) THE ANNEXED PLAT SHOWS THE LOCATION OF
ALL BUILDINGS, STRUCTURES AND OTHER PERMANENT IMPROVEMENTS (INCLUDING THE GROSS
SQUARE FOOTAGE THEREOF) OF WHICH THERE IS OBSERVABLE EVIDENCE AND VISIBLE ITEMS
(INCLUDING ALL PAINTED PARKING STALLS (AND A COUNT THEREOF) AND THE SIZES OF
SUCH PARKING STALLS) AND UTILITIES OF WHICH THERE IS OBSERVABLE EVIDENCE, AND
THE RELATION OF ALL SUCH BUILDINGS, STRUCTURES AND OTHER IMPROVEMENTS TO THE
BOUNDARIES OF THE PLATTED LANDS IS REFLECTED HEREON AND; (ii) THE PLATTED LANDS
ARE THE SAME AS THOSE DESCRIBED IN THE HEREIN REFERENCED COMMITMENT FOR TITLE
INSURANCE AND; (iii) THE PLATTED BOUNDARIES REPRESENT A "CLOSED FIGURE" WITH AN
ERROR-OF-CLOSURE IN ACCORDANCE WITH SAID DETAIL REQUIREMENTS AND; (iv) THE
PLATTED LANDS ABUT PUBLIC RIGHTS-OF-WAY AND HAVE APPARENT ACCESS THERETO AND THE
PUBLIC ROADS, HIGHWAYS, STREETS AND ALLEYS RUNNING ADJACENT TO OR UPON THE
PLATTED LANDS ARE SHOWN AND; (v) EXCEPT AS SHOWN HEREON, THERE ARE NO
DISCREPANCIES, CONFLICTS, SHORTAGES IN AREA OR OBSERVABLE ENCROACHMENTS FROM THE
PLATTED LANDS ONTO ANY ADJACENT LANDS, INCLUDING STREETS, ROADWAYS AND ALLEYS
AND/OR FROM ANY ADJACENT LANDS, INCLUDING STREETS, ROADWAYS AND ALLEYS ONTO THE
PLATTED LANDS), IMPROVEMENTS OF WHICH THERE IS OBSERVABLE EVIDENCE, OVERLAPPING
IMPROVEMENTS OF WHICH THERE IS OBSERVABLE EVIDENCE, PLATTED SETBACK OR BUILDING
LINES, EASEMENTS OF RECORD, RlGHTS-OF-WAY OF RECORD, DRAINAGE DITCHES, POWER
LINES OF WHICH THERE IS OBSERVABLE EVIDENCE OR ROADWAYS OF WHICH THERE IS
OBSERVABLE EVIDENCE THAT AFFECT THE PLATTED LANDS, OR, TO THE BEST OF THE
UNDERSIGNED'S KNOWLEDGE, UTILITIES OF WHICH THERE IS OBSERVABLE EVIDENCE OR
WHICH ARE REFLECTED ON DESIGN DOCUMENTS PROVIDED TO THE UNDERSIGNED AND; (vi)
THERE IS NO OBSERVABLE OR PLATTED EVIDENCE OF GAPS, GORES OR OVERLAPS BETWEEN
PARCELS OR ROADS, HIGHWAYS, STREETS OR ALLEYS AND ALL THE PLATTED LANDS ARE
CONTIGUOUS AND; (vii) THE PLATTED LANDS ARE IDENTIFIED AS TAX-PARCEL P.I.N.
00-00-000-000 AND; (viii) THE AREA OF THE PLATTED LANDS IS SHOWN HEREON AND;
(ix) THE PLATTED LANDS FALL IN FLOOD ZONE "X," DETERMINED TO BE OUTSIDE OF
500-YEAR FLOOD PLAIN AS SHOWN ON FLOOD INSURANCE RATE MAP 17097C0063F, AS ISSUED
BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY EFFECTIVE SEPTEMBER 3, 1997 AND; (x)
THE ZONING OF THE PLATTED LANDS IS "C/B2, COMMUNITY BUSINESS DISTRICT," AS SHOWN
ON THE "ZONING INFORMATION" MAP PUBLISHED BY THE VILLAGE OF GURNEE AND DATED
MARCH 19, 2001 AND; (xi) THE SURVEY INCLUDES ITEMS 1,2,3,4,6,7(a),7(b),8,9,10,11
(a),11(b),13,14,15 AND 16 OF TABLE "A" OF SAID REQUIREMENTS. PURSUANT TO THE
ACCURACY STANDARDS AS ADOPTED BY ALTA, NSPS AND ACSM AND IN EFFECT AS OF THE
DATE OF THIS CERTIFICATE, THE UNDERSIGNED FURTHER CERTIFIES THAT THE POSITIONAL
UNCERTAINTIES RESULTING FROM THE MEASUREMENTS MADE ON THE SURVEY DO NOT EXCEED
THE ALLOWABLE POSITIONAL TOLERANCE.
GIVEN UNDER MY HAND AND SEAL AT WHEATON, ILLINOIS THIS 30th DAY OF SEPTEMBER,
A.D.2004.
----------
ILLINOIS PROFESSIONAL LAND SURVEYOR 2967
Exhibit E-3
EXHIBIT F(1)
SCHEDULE 2(a)
FORM OF TENANT ESTOPPEL CERTIFICATE
------------------------------------------------------------------------
("Tenant") hereby certifies to Landlord (as defined herein), Inland Real Estate
Acquisitions, Inc., and Inland Western Gurnee, L.L.C. ("Buyer"), and each of
their lenders, successors and assigns as follows:
1. The undersigned is the Tenant under that certain lease dated
_____________________________, (the "Lease") executed by Rubloff Gurnee Town
Centre, L.L.C. f/k/a _____________________________ ("Landlord"), as Landlord and
the undersigned, as Tenant. The Lease represents the entire agreement between
Landlord and Tenant and there are no understandings or agreements with respect
to the matters set forth in the Lease other than as set forth in the Lease or as
set forth in the documents referenced in paragraph 6 below. The Lease has not
been assigned or subleased except as described in paragraph 6 below.
2. Tenant has leased approximately _____________ square feet (the
"Premises"). The term of the Lease commenced on _______________ and is scheduled
to expire on ________________ (subject to the options or rights to renew or
extend the term of the Lease referenced in paragraph 10 herein). Landlord is
currently holding Tenant's security deposit of $_________. Landlord has no
obligation to segregate the security deposit.
3. The current, fixed annual minimum rent is $_______________. The current,
annual percentage rent is _________% of gross sales exceeding a breakpoint of
$_______________. The fixed monthly rent payable under the terms of the Lease
has been paid through __________________, 2004, and the percentage rent payable
under the terms of the Lease has been paid through ___________. Tenant has not
made and will not make any payment of rent more than one month in advance. The
next scheduled increase in fixed annual minimum rent is _________, 20__.
4. The current estimated monthly CAM charge under the Lease is
$_____________. The Current estimated monthly charge for Taxes under the Lease
is $__________. The current estimated monthly Insurance charge under the Lease
is $______________. The current food court seating area charge under the Lease
(if applicable) is $____________. The current [LIST OTHER CHARGES] under the
Lease is $___________.
5. The Lease has been guaranteed by _________________________.
6. The Lease is in full force and effect, and constitutes a legal and
binding obligation of Tenant and Tenant is in actual possession of the Premises.
There are no amendments, modifications or supplements thereto, whether oral or
written, except as follows [[LANDLORD MUST LIST ALL SUCH AMENDMENTS,
MODIFICATIONS OR SUPPLEMENTS HERE, AND TENANT MUST HAVE OPPORTUNITY TO LIST
THOSE THAT ARE OUTSTANDING OR MISSING (IF ANY)]]:
Exhibit F(1)-1
7. Neither Landlord nor Tenant is in any respect in default under the Lease
and there are no events or conditions existing, or unperformed or outstanding
obligations of which Tenant has notified Landlord, which with the lapse of time,
or the giving of notice, or both shall constitute a default. Tenant has not
assigned, transferred or hypothecated the Lease or any interest therein or
subleased all or any portion of the Premises or granted any other agreement,
concession or license therein.
8. There are no actions, whether voluntary or otherwise, pending against
Tenant under the bankruptcy laws of the United States or any state thereof.
9. The undersigned claims no offsets, set-offs, rebates, concessions,
abatements or defenses against or with respect to rent, additional rent,
percentage rent or other sums payable under the terms of the Lease.
10. Tenant does not have any right or option to renew or extend the term of
the Lease, to lease other space within the building of which the Premises are a
part, nor any preferential right to purchase all or any part of the property of
which the Premises are a part, or any rights of first refusal or termination
rights, except as follows;
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
11. Any and all improvements, repairs and/or maintenance required under the
Lease to be made by Landlord have been completed satisfactorily in accordance
with the terms of the Lease, and all conditions under the Lease to be performed
by Landlord there under have been satisfied and all required contributions by
Landlord to Tenant on account of improvements to the Premises have been
received.
12. The Premises are being used for the purpose as described in the Lease.
Tenant has not received any notice of any present violation of any laws relating
to the use or condition of the Premises. Tenant has received no notice of any
claim, litigation or proceeding (including condemnation), pending or threatened
against or relating to the Premises.
13. This certificate has been given to Landlord and to Buyer with the
understanding that Landlord and Buyer and its principals, partners, members,
managers, officers, directors, assigns, consultants and lenders will rely hereon
in connection with the acquisition of the property of which the Premises
constitutes a part. 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 lender agrees that unless Tenant is in default under this Lease, this
Lease will remain in full force and effect. The individual executing this
instrument hereby personally certifies that he or she is duly authorized to
sign, acknowledge and deliver this Estoppel Certificate.
Dated:__________________, 2004 TENANT
Exhibit F(1)-2
------------------------------------
By:
---------------------------------
Name:
----------------------------
Its:
----------------------------
Exhibit F(1)-3
EXHIBIT F(2)
FORM OF SELLER'S ESTOPPEL CERTIFICATE
Rubloff Gurnee Town Centre, L.L.C. f/k/a __________________________________
("Landlord"), on behalf of _________________________________ ("Tenant") hereby
certifies to Inland Real Estate Acquisitions, Inc., and Inland Western Gurnee.
L.L.C. ("Buyer"), and each of their lenders, successors and assigns as follows:
1. Tenant is the tenant under that certain lease dated
_________________________ ___________, (the "Lease") executed by Landlord, as
landlord and Tenant, as tenant. The Lease represents the entire agreement
between Landlord and Tenant and there are no understandings or agreements with
respect to the matters set forth in the Lease other than as set forth in the
Lease or as set forth in the documents referenced in paragraph 6 below. The
Lease has not been assigned or subleased except as described in paragraph 6
below.
2. Tenant has leased approximately ________________________ square feet
(the "Premises"). The term of the Lease commenced on ______________________ and
is scheduled to expire on _____________ (subject to the options or rights to
renew or extend the term of the Lease referenced in paragraph 10 herein).
Landlord is currently holding Tenant's security deposit of $___________________.
Landlord has no obligation to segregate the security deposit.
3. The current, fixed annual minimum rent is $______________________.
The current, annual percentage rent is ______% of gross sales exceeding a
breakpoint of $_____________________. The fixed monthly rent payable under
the terms of the Lease has been paid through ______________, 2004, and the
percentage rent payable under the terms of the Lease has been paid through
____________. Tenant has not made and will not make any payment of rent more
than one month in advance. The next scheduled increase in fixed annual
minimum rent is ______________, 20__.
4. The current estimated monthly CAM charge under the Lease is
$__________________. The current estimated monthly charge for Taxes under the
Lease is $__________. The current estimated monthly Insurance charge under the
Lease is $__________. The current food court seating area charge under the Lease
(if applicable) is $_________. The current [list other charges] under the Lease
is $___________.
5. The Lease has been guaranteed by _____________________________.
6. The Lease is in full force and effect, and constitutes a legal and
binding obligation of Tenant and Tenant is in actual possession of the Premises.
There are no amendments, modifications or supplements thereto, whether oral or
written, except as follows [LANDLORD MUST LIST ALL SUCH AMENDMENTS,
MODIFICATIONS OR SUPPLEMENTS HERE, AND TENANT MUST HAVE OPPORTUNITY TO LIST
THOSE THAT ARE OUTSTANDING OR MISSING (IF ANY)]:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit F(2)-1
7. Neither Landlord nor Tenant is in any respect in default under the Lease
and there are no events or conditions existing, or unperformed or outstanding
obligations of which Tenant has notified Landlord, which with the lapse of time
or giving of notice, or both shall constitute a default. Tenant has not
assigned, transferred or hypothecated the Lease or any interest therein or
subleased all or any portion of the Premises or granted any other agreement,
concession or license therein.
8. There are no actions, whether voluntary or otherwise, pending
against Tenant under the bankruptcy laws of the United States or any state
thereof.
9. To Landlord's knowledge, there are no offsets, set-offs, rebates,
concessions, abatements or defenses against or with respect to rent, additional
rent, percentage rent or other sums payable under the terms of the Lease
10. Tenant does not have any right or option to renew or extend the term of
the Lease, to lease other space within the building of which the Premises are a
part, nor any preferential right to purchase all or any part of the property of
which the Premises are a part, or any rights of first refusal or termination
rights, except as follows:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
11. Any and all improvements, repairs and/or maintenance required under the
Lease to be made by Landlord have been completed satisfactorily in accordance
with the terms of the Lease, and all conditions under the Lease to be performed
by Landlord thereunder have been satisfied and all required contributions by
Landlord to Tenant on account of improvements to the Premises have been
received.
12. The Premises are being used for the purpose as described in the Lease.
Landlord has not received any notice of any present violation of any laws
relating to the use or condition of the Premises. To Landlord's knowledge,
Tenant has received no notice of any claim, litigation or proceeding (including
condemnation), pending or threatened against or relating to the Premises.
13. This certificate has been given to the Buyer with the understanding
that Buyer and its principals, partners, members, managers, officers, directors,
assigns, consultants and lenders will rely hereon in connection with the
acquisition of the property of which the Premises constitutes a part. 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 lender agrees
that unless Tenant is in default under this Lease, this Lease will remain in
full force and effect. The individual executing this instrument hereby
personally certifies that he or she is duly authorized to sign, acknowledge and
deliver this Estoppel Certificate.
14. This certificate shall be null and void and of no further force and
effect one (1) year after the date hereof.
Dated: _______________, 2004 LANDLORD
Exhibit F(2)-2
RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
-------------------------------------
Title:
-------------------------------------
EXHIBIT G
Financial Statements
1. Cash Operating Statement for the year ending 2001, run date 7/2/04.
2. Income Statement (Cash) for January 2002 thru December 2002, run date
7/2/04.
3. Income Statement (Cash) for January 2003 thru December 2003, run date
7/2/04.
4. Trial Balance - December 2003, run date 7/14/04.
5. Income Statement for the period ended 8/31/04 (no run dated).
Exhibit F(2)-3
EXHIBIT H
VACANCY ESCROW AGREEMENT
THIS VACANCY ESCROW AGREEMENT (the "AGREEMENT") is made and entered into as
of the _____________ day of ________________, 2004, by and among Rubloff Gurnee
Town Centre, L.L.C., an Illinois limited liability company (hereinafter referred
to as "SELLER"), Inland Real Estate Acquisitions, Inc., an Illinois corporation
(hereinafter referred to as "BUYER"), and Chicago Title Insurance Company
(hereinafter referred to as "ESCROW AGENT").
WITNESSETH:
WHEREAS, pursuant to that certain Agreement of Purchase and Sale dated as
of the __ day of September, 2004 (the "CONTRACT"), Buyer acquired on and as of
the date hereof from Seller certain real property known as Gurnee Town Centre
located in Gurnee, Illinois (the "PROPERTY"); and
WHEREAS, pursuant to the terms of the Contract, Seller has agreed to
deposit with Escrow Agent the sum of ___________________________________________
_______________________________ and 00/100 Dollars ($_____,___.00) (the "ESCROW
DEPOSIT") with respect to Seller's obligation to pay certain rent payable to
Buyer, and other charges, for the Vacant Space (as hereinafter defined), all as
described by this Escrow Agreement and as more particularly set forth on the
attached EXHIBIT A, and
WHEREAS, Escrow Agent is willing to accept the Escrow Deposit and hold and
disburse same in accordance with the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises hereto, the
covenants and agreements hereinafter made, and for Ten Dollars ($10.00) in hand
paid to Escrow Agent, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEPOSITS. Seller hereby deposits with Escrow Agent, and Escrow Agent
hereby acknowledges receipt of the sum of _______________________________ and
00/100 Dollars ($______,__.00) as the total Escrow Deposit. Escrow Agent hereby
agrees to deposit the Escrow Deposit into an interest bearing account (subject
to immediate withdrawal) with a bank, savings and loan institution, money market
account, or other depository reasonably satisfactory to Buyer, Seller and Escrow
Agent with interest accruing for the benefit of Seller. The federal taxpayer
identification of Seller is as follows:
------------------------.
2. DISBURSEMENTS. Escrow Agent shall retain the Escrow Deposit in the
account, and shall cause the same to be disbursed therefrom as follows:
A. LEASING DEPOSIT. That portion of the Escrow Deposit identified
as the sum of ___________ and 00/100 Dollars ($_____________.00) is hereby
referred to as the "LEASING DEPOSIT." The Leasing Deposit is applicable to
___ square feet of tenant space at the property not leased to tenants as of
the date hereof who
Exhibit H-1
are occupying all of their premises and who have commenced full payments of
rent and reimbursable expenses (the "VACANT SPACE") and is allocable to the
Vacant Space as shown on EXHIBIT A. Buyer shall receive a prorated credit
from the Leasing Deposit on the date hereof for the rent and reimbursable
expenses attributable to the Vacant Space from the date hereof through the
end of the current month. Thereafter, Buyer shall receive (and Escrow Agent
is hereby authorized to pay to Buyer without further direction from Seller)
monthly payments, in advance, for rent and reimbursable expenses, from the
Leasing Deposit. The amount of the monthly disbursement to Buyer from the
Leasing Deposit shall be as directed by Buyer by notice to Seller and
Escrow Agent each month, according to the form of request attached as
EXHIBIT C (which shall be equal to 1/12 of the Leasing Deposit prorated for
any partial months) (the "LEASING DEPOSIT MONTHLY PAYMENT").
B. PROPOSED TENANTS. Seller may present to Buyer proposed tenants
for the Vacant Space. In the event the Vacant Space is leased to such
proposed tenant, (1) this Vacancy Escrow Agreement shall automatically
terminate as of that date upon which said proposed tenant commences rental
payment for the Vacant Space, and (2) Seller shall pay Buyer the lesser of
(i) the remaining Rent due under the Vacancy Escrow Agreement or (ii)
Seller's proportionate share of the costs attributable to the installation
of such proposed tenant, including legal costs, leasing commissions, tenant
improvements and tenant allowances, which shall be calculated by
multiplying such costs by a fraction, the numerator of which shall be the
number of months remaining in the term of this Vacancy Escrow Agreement,
and the denominator of which shall be the total number of months in the
replacement tenant's lease term.
3. DISPUTES. In the event either party objects to the disbursement of the
Escrow Deposit as provided above, the Escrow Agent shall have the right, at its
option, either (a) to hold the Escrow Deposit in escrow pending resolution of
such objection by mutual agreement of the parties or by judicial resolution of
same or (b) to disburse the Escrow Deposit into the registry of the court having
jurisdiction over such objection. After any disbursement of the Escrow Deposit
under the terms of this Escrow Agreement, Escrow Agent's duties and obligations
hereunder as to that disbursement shall cease. In the event of any dispute
regarding disbursement of the Escrow Deposit, the prevailing party in any
litigation, regarding such dispute, shall be entitled to receive from the other
party all the prevailing party's costs and expenses incurred in connection with
the resolution of such dispute including, without limitation, all court costs
and reasonable attorney's fees.
4. ESCROW FEES. The costs of administration of this Escrow Agreement by
Escrow Agent shall $300.00, which shall be shared equally by Seller and Buyer.
This Escrow Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, principals, successors and assigns
and shall be governed and construed in accordance with the laws of the State of
Illinois. No modification, amendment or waiver of the terms hereof shall be
valid or effective unless in writing and signed by all of the parties hereto.
This Escrow Agreement may be executed in multiple counterpart originals, each of
which shall be deemed to be and shall constitute an original. If there is any
conflict between the terms of this Escrow Agreement and the tetras of the
Contract, the terms of the Contract shall control in all events.
Exhibit H-2
5. NOTICES. All notices, requests, consents and other communications
hereunder shall be sent to each of the following parties and be in writing and
shall be personally delivered, sent by Federal Express or other overnight or
same day courier service providing a return receipt, (and shall be effective
when received, when refused or when the same cannot be delivered, as evidenced
on the return receipt) to the following addresses:
If to Buyer: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Mr. G. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax:(000) 000-0000
with a copy to: Xxxxx Xxxx, Esq.
The Inland Real Estate Group, Inc./Law Department
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (630) 218-8000 ext. 2854
Fax: (000) 000-0000
If to Seller: Rubloff Development Group, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Escrow Agent: Chicago Title Insurance Company
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
6. COUNTERPARTS. This Escrow Agreement may be executed in
counterparts and shall constitute an agreement binding on all parties
notwithstanding that all parties are not signatories of the original or the same
counterpart. Furthermore, the signatures from one counterpart may be attached to
another to constitute a fully executed original. The Escrow Agreement may be
executed by facsimile.
7. REPORTING. Escrow Agent agrees to deliver to Buyer and Seller, on
a monthly basis, an escrow statement of account of the Escrow Deposit. Such
monthly statements shall be delivered to Buyer at: Inland Western Gurnee,
L.L.C., c/o Inland Western Retail Real Estate Trust, Inc., 0000 Xxxxxxxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxx, and to Seller at the
address provided above for notices to Seller.
8. LEASING ACTIVITIES. In consideration of Seller depositing the
amounts required
Exhibit H-3
hereunder in the Escrow Account, Buyer hereby agrees that during the period
commencing on the date hereof and ending on the twelve (12) month anniversary of
the date hereof (the "SUBSEQUENT LEASING PERIOD"), Seller is hereby granted a
license to enter upon the Property for the purposes of, and shall be responsible
for, coordinating all leasing activities at the Property for the Vacant Space
(but not any other space in the Property). Seller and Buyer each agree to comply
with the laws of the State of Illinois in connection with their respective
leasing activities. As leasing coordinator, Seller shall work with Buyer's
broker to coordinate negotiations with prospective tenants and supervise
completion of construction of tenant improvements under leases for the Vacant
Space. Buyer shall have the right to reasonably approve all leases executed
after the date hereof for Vacant Space; provided however, Buyer has no right to
disapprove lease terms equal to or more favorable to the landlord than the terms
set forth in the "LEASING GUIDELINES" attached hereto as EXHIBIT B. Buyer agrees
to approve or disapprove any lease submitted to Buyer for approval within seven
(7) business days after Buyer's receipt thereof and Buyer shall advise Seller of
specific reasons for any such disapprovals. If Buyer fails to approve or
disapprove of any lease submitted to Buyer within such seven (7) day period of
Buyer's receipt thereof, such lease shall be deemed approved by Buyer. Seller
shall submit all letters of intent to lease to Buyer for execution and Seller
shall periodically advise Buyer of the status of lease negotiations during the
Subsequent Leasing Period, including sending drafts of leases to Buyer. During
the Subsequent Leasing Period, leases shall be prepared and negotiated through
legal counsel recommended by Seller and reasonably approved by Buyer, using the
standard form lease prepared by Buyer, or, subject to Buyer's written approval,
a tenant form lease.
(SIGNATURE PAGE FOLLOWS)
Exhibit H-4
SIGNATURE PAGE FOR
VACANCY ESCROW AGREEMENT AMONG
RUBLOFF GURNEE TOWN CENTRE, L.L.C., INLAND REAL ESTATE
ACQUISITIONS, INC. AND CHICAGO TITLE INSURANCE COMPANY
IN WITNESS WHEREOF, Seller, Buyer and Escrow Agent have caused this Escrow
Agreement to be executed as of the day and year first above written.
SELLER
INLAND REAL ESTATE ACQUISITIONS, INC., an
Illinois corporation
By:
------------------------------
Its:
------------------------------
Title:
------------------------------
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------
Its:
------------------------------
Title:
------------------------------
Exhibit H-5
EXHIBIT A TO VACANCY ESCROW AGREEMENT
ESCROW DEPOSITS
Exhibit H-6
EXHIBIT B TO VACANCY ESCROW AGREEMENT
LEASING GUIDELINES
1. The proposed use shall be a use typically found in retail centers of this
type.
2. The proposed use does not violate any exclusions existing in any other
tenant's lease or covenants existing in any other documents of record.
3. The lease is for an original term of not less than 5 years, or more than 10
years.
4. No concessions shall be provided to the tenant which would be at Buyer's
expense.
5. All leases shall be prepared substantially in accordance with the tenant
lease form approved by Buyer subject to commercially reasonable variances
and prevailing market parameters.
6. The proposed tenant has successful retail and/or business operating
experience including, but not limited to, three years in the type of
business to be operated at the leased premises.
7. The proposed tenant (or the franchisor, if applicable) shall have more than
one location.
8. The proposed tenant and/or lease guarantor has an aggregate net worth of at
least two years of the total aggregate annualized rent, including all
expenses.
9. Said leases shall average at least 3% increases per year over the primary
term of the lease.
10. The tenant's lease will not include rent reductions or early termination
clauses of any kind.
11. In addition to tenant's base rent, the leases will include 100%
reimbursement for taxes, insurance and common area maintenance, including
a 15% administrative charge for CAM.
12. Buyer shall act in a commercially reasonable manner and in good faith
during its review and determination of the credit worthiness of any tenant
and/or guarantor. Also, Buyer agrees to respond to Seller deliveries of
tenant/guarantor credit information within 5 business days after its
receipt by Buyer, otherwise said tenant/guarantor credit worthiness shall
be deemed approved by Buyer.
13. The provisions of any new lease regarding renewals, if any, shall provide
that the economic terms during the renewal period(s) will not be less than
the economic terms during the immediately preceding term, and shall not
require Buyer to provide or pay for any tenant improvements, free rent, or
leasing commissions.
Exhibit H-7
EXHIBIT C TO VACANCY ESCROW AGREEMENT
FORM OF REQUEST
INLAND TO PROVIDE
Exhibit H-8
EXHIBIT I
Material Tenants
1. Borders
2. Pier One
3. The Avenue
4. Starbucks
5. AT&T
6. Bedding Experts
7. Cost Plus
8. Linens & Things
9. Bath & Body Works
Exhibit I-1
EXHIBIT J
FORM OF DEED
THIS INSTRUMENT PREPARED BY AND
RETURNED TO AFTER RECORDING:
-----------------------------------
-----------------------------------
-----------------------------------
MAIL SUBSEQUENT TAX BILLS TO:
-----------------------------------
-----------------------------------
-----------------------------------
SPECIAL WARRANTY DEED
[ADDRESS OF PROPERTY]
THIS SPECIAL WARRANTY DEED is made the ________ day of ____________, 2004
between RUBLOFF GURNEE TOWN CENTRE, L.L.C., an Illinois limited liability
company, having an address of 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000 ("Grantor"), for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration in hand paid, by these
presents does REMISE, RELEASE, ALIENATE AND CONVEY to INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation, having an address of
_____________________________ ("Grantee"), forever, the real estate situated in
the County of Lake, in the State of Illinois, to wit, and described in EXHIBIT A
attached hereto and made a part hereof and subject to those certain permitted
title exceptions as set forth on EXHIBIT B attached hereto and made a part
hereof.
Permanent Index Number:_________________________
Commonly known as:______________________________
And Grantor, for itself and its successors does covenant, promise and
agree, to and with Grantee, Grantee's successors and heirs, that Grantor has not
done or suffered to be done anything whereby said premises hereby granted are,
or may be, in any manner encumbered or charged, except as herein recited; and
that Grantor will warrant and forever defend title to said premises, against all
persons lawfully claiming or who may claim the same, by, through or under
Grantor but not otherwise.
Exhibit J-1
IN WITNESS WHEREOF, this Deed has been executed by Grantor under seal on
and as of the date first above written
RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
By: RUBLOFF DEVELOPMENT GROUP, INC., its
Managing Member
By:
-------------------------------------
Name:
--------------------------------
Title:
--------------------------------
STATE OF_________________________ )
) SS.
COUNTY OF ___________________________)
I, ________________, a Notary Public in and for said County in the State
aforesaid, do hereby certify that ___________, the _______________of Rubloff
Gurnee Town Centre, L.L.C., the managing member of Rubloff Development Group,
Inc., personally known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person and acknowledged
that he signed and delivered such instrument as his own free and voluntary act
and as the free and voluntary act of such corporation as the Managing Member of
such limited liability company, for the uses and purposes set forth therein.
GIVEN under my hand and notarial seal this____ day of ____________________,
2004.
-------------------------------
Notary Public
My Commission expires:
---------------------------
Exhibit J-2
EXHIBIT K
FORM OF XXXX OF SALE
XXXX OF SALE
This XXXX OF SALE is given this ______ day of _________, 2004 by RUBLOFF
GURNEE TOWN CENTRE, L.L.C., an Illinois limited liability company, having an
office at _________________ ("Seller"), to INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation, ("Buyer").
Seller, for good and valuable consideration received from Buyer, the
receipt and sufficiency of which are hereby acknowledged, hereby bargains, sells
and conveys to Buyer all furnishings, furniture, equipment, supplies, and other
personal property, both tangible and intangible, including, but not limited to,
that property of Seller located on or used in connection with the real property
located in the Village of Gurnee, County of Lake, State of Illinois, as
described on EXHIBIT A attached hereto (hereinafter collectively referred to as
"Personal Property") which real property is more particularly described in the
Agreement of Purchase and Sale dated ___________, 2004 between Seller and Buyer,
to have and to hold the Personal Property unto Buyer, its successors and
assigns, forever. Nothing contained in this Xxxx of Sale shall be construed to
include in the definition of Personal Property any furniture, furnishings, trade
fixtures, equipment or other personal property of any tenant occupying such real
property or any property owned by a third party. Seller does for itself and its
successors and assigns represent and warrant, covenant and agree to and with
Buyer, its successors and assigns, that (1) the Personal Property is free and
clear from any encumbrances whatsoever; and (2) Seller is the true and lawful
owner of the Personal Property and has good right and lawful authority to
bargain and sell the Personal Property to Buyer in the manner and form as
aforesaid. Except as otherwise set forth herein, the Personal Property is being
transferred by Seller to Buyer in its "AS-IS, WHERE-IS, WITH ALL FAULTS"
condition, without any representation or warranty of any kind or nature,
express, implied, statutory or otherwise.
Each person dealing with Seller must look solely to the assets of Seller
for the enforcement of any claim against Seller arising under this Xxxx of Sale
and this Xxxx of Sale is not binding upon, nor shall resort be had to the
private property of any of the partners, members, shareholders, agents or
employees of Seller.
Each person dealing with Buyer must look solely to the assets of Buyer for
the enforcement of any claim against Buyer arising under this Xxxx of Sale and
this Xxxx of Sale is not binding upon, nor shall resort be had to the private
property of any of the partners, members, shareholders, agents or employees of
Buyer.
IN WITNESS WHEREOF, Seller has hereunto executed this Xxxx of Sale as of
the date first above written.
RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
Exhibit K-1
By: Rubloff Development Group, Inc.,
its managing member
Name:
-------------------------------------
Title:
------------------------------------
Exhibit K-2
EXHIBIT L
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT OF LEASES
FOR AND IN CONSIDERATION OF the sum of Ten Dollars ($10.00) and further for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, RUBLOFF GURNEE TOWN CENTRE, L.L.C., an Illinois limited
liability company ("Assignor"), hereby assigns to INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation, ("Assignee"), and Assignee hereby
accepts effective as of the Closing Date, as defined in that certain Agreement
of Purchase and Sale dated__________, 2004 by and between Assignor and Assignee
(the "Agreement"), all of Assignor's right, title and interest as landlord under
each lease and tenancy affecting certain real property and improvements known as
Gurnee Town Centre, Gurnee, Illinois, which real property is more fully
described on EXHIBIT A, attached hereto and incorporated herein by this
reference (the "Property") (individually, a "Tenant Lease," and collectively,
the "Tenant Leases"), which Tenant Leases are identified and described on
SCHEDULE I hereto, and all guaranties of the tenants' obligations under the
Tenant Leases, together with any and all rights which Assignor may have against
the parties to the Tenant Leases governed thereby including, without limitation,
all right, power, and authority of Assignor to alter, modify, or otherwise
change the terms of the Tenant Leases and to surrender, cancel, and terminate
the Tenant Leases or any of them, and together with all rents, income, and
profits arising from the Tenant Leases from and after the date of this
Assignment, and from any renewals of the Tenant Leases, including, without
limitation, any security and damage deposits described therein, provided
however, Assignor excepts from such assignment and retains the rights in
accordance with section 12(b) of the Agreement to (i) receive delinquent rent or
other monetary obligations from Tenant or (ii) xxx tenants under the Tenant
Leases for nonpayment of rent, provided however, Assignor shall not have any
right to terminate such tenants' leases or exercise any eviction remedies under
such leases.
Assignor shall indemnify, defend and hold Assignee harmless from and
against any and all claims, demands, liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees) incurred by or assessed against
Assignee that arise from or are in any way connected with the Tenant Leases and
relate to actions or events occurring or obligations first accruing prior to the
date hereof, including, but not limited to, liability for tenants CAM
reconciliation for periods ending prior to the date hereof. Assignee shall
indemnify, defend and hold Assignor harmless from and against any and all
claims, demands, liabilities, losses, damages, costs and expenses (including
reasonable attorneys' fees) incurred by or assessed against Assignor that arise
from or are in any way connected with the Tenant Leases and relate to actions or
events occurring or obligations first accruing after the date hereof.
Each person dealing with Assignor must look solely to the assets of
Assignor for the enforcement of any claim against Assignor arising under this
Assignment, and this Assignment is not binding upon, nor shall resort be had to
the private property of any of the partners, members, shareholders, agents or
employees of Assignor.
Each person dealing with Assignee must look solely to the assets of
Assignee for the enforcement of any claim against Assignee arising under this
Assignment, and this Assignment
Exhibit L-1
is not binding upon, nor shall resort be had to the private property of any of
the partners, members, shareholders, agents or employees of Assignee.
This Assignment shall benefit and bind Assignor and Assignee and the heirs,
legal representatives, successors, and assigns of each of them.
IN WITNESS WHEREOF, Assignor, by its duly authorized representative,
executes this Assignment as of the ______________ day of ______________________,
2004.
ASSIGNOR:
RUBLOFF GURNEE TOWN CENTRE, L.L.C.,
an Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
----------------------
Title:
---------------------
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS,
INC, an Illinois corporation,
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Exhibit L-2
EXHIBIT M
FORM OF ASSIGNMENT OF SERVICE CONTRACTS AND INTANGIBLE PROPERTY
ASSIGNMENT OF SERVICE CONTRACTS AND INTANGIBLE PROPERTY
FOR AND IN CONSIDERATION OF the sum of Ten Dollars ($10.00) and further for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, RUBLOFF GURNEE TOWN CENTRE, L.L.C., an Illinois limited
liability company ("Assignor"), hereby assigns to INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation, ("Assignee"), and Assignee hereby
accepts effective as of the Closing Date, as defined in that certain Agreement
of Purchase and Sale dated __________, 2004 by and between Assignor and Assignee
(the "Agreement"), all of Assignor's right, title, and interest as owner of
certain real property and improvements known as Gurnee Town Centre, Gurnee,
Illinois, which real property is more fully described on EXHIBIT A, attached
hereto and incorporated herein by this reference (the "Property"), in (i) each
contract for operation or maintenance of the Property (individually, a "Service
Contract," and collectively, the "Service Contracts"), which Service Contracts
are identified and described on SCHEDULE I attached to this Assignment and
incorporated herein by this reference, and (ii) all intangible property owned by
Assignor and used in connection with the Property, including all trademarks and
trade names used in connection with the Property, including the use of the name
"Gurnee Town Centre", all plans and specifications, if any, which were prepared
in connection with the construction of the improvements and all licenses,
permits and warranties now in effect with respect to the Property to the extent
assignable.
Assignor shall indemnify, defend and hold Assignee harmless form and
against any and all claims, demands, liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees) incurred by or assessed against
Assignee that arise from or are in any way connected to the Service Contracts
and relate to actions or events occurring or obligations first accruing prior to
the date hereof, provided that any claim made by Assignee hereunder shall be
subject to the limitations set forth in Section 16 of the Agreement. Assignee
shall indemnify, defend and hold Assignor harmless form and against any and all
claims, demands, liabilities, losses, damages, costs and expenses (including
reasonable attorneys' fees) incurred by or assessed against Assignor that arise
from or are in any way connected to the Service Contracts and relate to actions
or events occurring or obligations first accruing after the date hereof.
Each person dealing with Assignor must look solely to the assets Assignor
for the enforcement of any claim against Assignor arising under this Assignment,
and this Assignment is not binding upon, nor shall resort be had to the private
property of any of the partners, members, shareholders, agents or employees of
Assignor.
Each person dealing with Assignee must look solely to the assets of
Assignee for the enforcement of any claim against Assignee arising under this
Assignment, and this Assignment is not binding upon, nor shall resort be had to
the private property of any of the partners, members, shareholders, agents or
employees of Assignee.
This Assignment shall benefit and bind Assignor and Assignee and the heirs,
legal representatives, successors, and assigns of each of them.
Exhibit M-1
IN WITNESS WHEREOF, Assignor, by its duly authorized representative,
executes this Assignment as of the _______ day of _______________________, 2004.
ASSIGNOR:
RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
-------------------------------------
Title:
------------------------------------
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation,
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Exhibit M-2
EXHIBIT N
FORM OF AFFIDAVIT OF NON-FOREIGN STATUS
AFFIDAVIT OF NON-FOREIGN STATUS
(Corporation, Partnership, Trust, Transferor Estate)
Section 1445 of the Internal revenue Code of 1986, as amended, provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. To inform the transferee that withholding of tax
is not required upon disposition of a U.S. real property interest by RUBLOFF
GURNEE TOWN CENTRE, L.L.C., an Illinois limited liability company ("Seller"),
the undersigned hereby affirms the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and income tax Regulations);
2. Seller's U.S. employer identification number is _________________; and
3. Seller's office address is:
-----------------------------
-----------------------------
-----------------------------
The undersigned understands that this Affidavit may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this Affidavit
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this Affidavit on behalf of
Seller.
Dated: ______________, 2004 RUBLOFF GURNEE TOWN CENTRE,
L.L.C., an Illinois limited liability company
By: Rubloff Development Group, Inc.,
its managing member
Name:
-------------------------------------
Title:
------------------------------------
Exhibit N-1
EXHIBIT O
REPAIR WORK
1) Replace missing stones on columns.
2) Repair wooden fence serving as trash enclosure for Outlot #2.
3) Complete masonry trash enclosures for Outlots # 3 & #4.
4) Roof repairs to Borders and Old Navy (completed as of 9/28/04).
5) Replace dead plants in islands (completed as of 9/28/04).
6) Repair EFIS at Old Navy (completed as of 9/28/04).
7) Repair of leaning fence in front and back of the Property
Exhibit O-1
EXHIBIT P
FORM OF AUDIT REPRESENTATION LETTER
KPMG LLP
Peat Marwick Plaza
000 X Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We are writing you at your request to confirm our understanding that your audit
of the Historical Summary of Gross Income and Direct Operating Expenses
(Historical Summary) of _______________________ (the Property) for the year
ended December 31, 2003 was made for the purpose of expressing an opinion as to
whether the Historical Summary presents fairly, in all material respects, the
gross income and direct operating expenses in conformity with the cash basis of
accounting. In connection with your audit we confirm, to the best of our
knowledge and belief, and subject to the materials provided and/or made
available to Inland, the following representations made to you during your
audit:
1. We have made available to you:
a. All financial records and related data.
b. All minutes of the meetings of stockholders, directors, and committees
of directors, or summaries of actions of recent meetings for which
minutes have not yet been prepared.
2. There have been no:
a. Instances of fraud involving any member of management or employees who
have significant roles in internal control.
b Instances of fraud involving others that could have a material effect
on the Historical Summary.
c. Other instances of fraud perpetrated on or within the Property.
d. Communications from regulatory agencies concerning noncompliance with,
or deficiencies in, financial reporting practices that could have a
material effect on the Historical Summary.
e. Violations or possible violations of laws or regulations, the effects
of which are considered material and should be considered for
disclosure in the Historical Summary or as a basis for recording a
loss contingency.
Exhibit P-1
KPMG LLP
Page 2
3. There are no:
a. Unasserted claims or assessments that our lawyer(s) has (have) advised
us are probable of assertion and must be disclosed in accordance with
Statement of Financial Accounting Standards (SFAS) No. 5, Accounting
for Contingencies.
b. Material liabilities or gain or loss contingencies that are required
to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
d. Events that have occurred subsequent to the balance sheet date and
through the date of this letter that would require adjustment to or
disclosure in the Historical Summary.
4. The Property has complied with all aspects of contractual agreements
that would have a material effect on the Historical Summary in the
event of noncompliance.
5. All income from operating leases is included as gross income in the
Historical Summary. No other forms of revenue are included in the
Historical Summary.
Further, we confirm that we are responsible for the fair presentation in the
Historical Summary of Gross Income and Direct Operating Expenses for the year
ended December 31, 2003, in conformity with seller's cash method of accounting.
Sincerely,
LAW OFFICES
XXXX, XXXXXX & XXXXXXXXX L L P
XXX XXXXX XX XXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000-0000
(000) 000-0000
xxx.xxxxxx.xxx
XXXX X. XXXXXXXXXX FAX: (000)000-0000
(000)000-0000 XXXXXXXXXXX@XXXXXX.XXX
OCTOBER 14, 2004
VIA FACSIMILE AND
FEDERAL EXPRESS
Inland Western Denton Crossing Limited Partnership
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: G. Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, Esq.
Re: XXXXXX XXXXXXXX, XXXXXX, XXXXX
Dear Xxx and Xxxx:
Reference is made to that certain Agreement of Purchase and Sale (as
the same may have been amended, the "Agreement"), dated as of August 20, 2004,
between Inland Western Denton Crossing Limited Partnership (assignee of Inland
Real Estate Acquisitions, Inc.) ("Purchaser") and "ORIX Xxxx Xxxxxx Venture
("Seller"). Certain events have occurred which require that certain Exhibits to
the Agreement be updated. This letter shall constitute a Variance Notice
pursuant to Section 12.02 of the Agreement. Attached hereto are the Exhibits to
the Agreement, as modified to account for events occurring after August 20,
2004. Seller will not undertake any cure with respect to the documents added to
Exhibits B and J. Seller will escrow the leasing commission which has been added
to Exhibit I with respect to the Nextel lease.
Very truly yours,
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
Attachment
cc: Xx. Xxxx Xxxxxxxxxxxxx (via e-mail)
Xx. Xxxx Xxxxxxxx (via e-mail)
Xxxxx Xxxx, Esq. (via e-mail)
EXHIBIT A
LEGAL DESCRIPTION
See Attached
TRACT 1A: FEE SIMPLE
BEING Lots 1R and 2R, Block A of DENTON CROSSING, an Addition to the City of
Denton, Texas, according to the plat thereof recorded in Cabinet V, Page 000,
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT 1B: EASEMENT
Being non-exclusive easements as created by Amended and Restated Declaration of
Restrictions and Easements for The Denton Crossing Shopping Center (the "REA"),
filed 09/11/2003, recorded in Volume 5415, Page 1864, Real Property Records,
Xxxxxx Xxxxxx, Xxxxx.
XXXXX 0X: FEE SIMPLE
BEING Xxx 0, Xxxxx X xx XXXXXX XXXXXXXX, an Addition to the City of Denton,
Texas, according to the plat thereof recorded in Cabinet V, Page 000, Xxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT 2B: EASEMENT
Being non-exclusive easements as created by Reciprocal Easement Agreement (the
"REA") dated 01/31/2003, filed 02/03/2003, recorded in Volume 5254, Page 3304,
Real Property Records, Xxxxxx County, Texas, as affected by amendment filed
05/19/2003, recorded in Volume 5335, Page 779, Real Property Records, Xxxxxx
County, Texas.
EXHIBIT B
SCHEDULE OF LEASES
See Attached
INITIAL TENANTS
Best Buy
1. Lease by and between Denton Crossing Partners, L.P., a Texas
limited partnership ("Landlord") and BEST BUY STORES, L.P., a
Delaware limited partnership ("Tenant") on May 24, 2002.
2. First Amendment to Lease on September 9, 2002 between Denton
Crossing Partners, LTD,. a Texas limited partnership ("Landlord")
and BEST BUY STORES, l.P., a Delaware limited partnership
("Tenant")
3. Second Amendment to Lease on March 13, 2003 by and between ORIX
Xxxx Xxxxxx Venture, an Illinois general partnership ("Landlord"),
and Best Buy Stores, L.P., a Delaware corporation ("Tenant").
4. Third Amendment to Lease on July 16, 2003, between ORIX Xxxx
Xxxxxx Venture an Illinois general partnership ("Landlord") and
Best Buy Store, L.P., a Delaware corporation ("Tenant").
Bed Bath & Beyond
1. Lease between Denton Crossing Partners, LTD., a Texas Limited
Partnership ("Landlord") and Bed Bath & Beyond Inc., a New York
Corporation, ("Tenant") on July 26, 2002
2. First Amendment to Shopping Center Lease on May 30, 2003 by and
between ORIX Xxxx Xxxxxx Venture, Illinois general partnership
("Landlord") and Bed Bath & Beyond, Inc. a New York corporation,
("Tenant")
3. Rent Commencement and Expiration Date Agreement on November 11,
2003 by and between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership, ("Assignee") to Denton Crossing Partners, LTD., a
Texas limited partnership, ("Assignor") and Bed Bath & Beyond
Inc., ("Tenant")
4. Memorandum of Lease, dated July 26, 2002 by and between Denton
Crossing Partners, L.P. ("Landlord") and Bed Bath & Beyond, Inc.
("Tenant")
Carvel Ice Cream
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and AAA Worldwide Financial Co., a Texas corporation, (dba
Carvel Ice Cream) ("Tenant") on March 16, 2004
Cold Stone Creamery
Lease, dated September 17, 2004, between ORIX Xxxx Xxxxxx Venture and
Cold Stone Creamery Leasing Company, Inc.
Sublease, dated August 24, 2004, between Cold Stone Creamery Leasing
Company, Inc. and The Sleep King's Ice Cream Company
Advance America Servicing of Texas, L.P.
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and Advance America Servicing of Texas, L.P., a Texas
partnership on ("Tenant") February 3, 2003.
Cost Plus
1. Lease between Denton Crossing Partners, LTD., a Texas Limited
Partnership ("Landlord") and Cost Plus, Inc., a California
corporation ("Tenant")on May 13, 2003.
2. First Amendment to Shopping Center Lease on October 1, 2002 by and
between ORiX Xxxx Xxxxxx Venture, LLC an Illinois limited
liability company ("Landlord") and Cost Plus, Inc. a California
corporation (dba Cost Plus World Market) ("Tenant")
3. Second Amendment to Shopping Center Lease on March 10, 2003 by and
between ORIX Xxxx Xxxxxx Venture, LLC ("Landlord") and Cost Plus,
Inc (dba Cost Plus World Market) ("Tenant")
4. Third Amendment to Shopping Center Lease on May 27, 2003 by and
between ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus, Inc.
(dba Cost Plus World Market) ("Tenant")
5. Acknowledgement of Commencement on October 27, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus, Inc.
("Tenant")
6. Fourth Amendment to Shopping Center Lease on February 26, 2004 by
and between ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus,
Inc. ("Tenant")
7. Memorandum of Lease, dated April 25, 2002 by and between Denton
Crossing Partners, L.P. ("Landlord") and Cost Plus, Inc.
("Tenant")
Chaucer's, Inc.
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Chaucer's, Inc. a Texas corporation, ("Tenant") on March
24, 2004.
Chipotle Mexican Grill, Inc.
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Chipotle Mexican Grill, Inc.. a Delaware corporation, on
August 13, 2003.
The Dress Barn
Lease between Denton Crossing Partners, L.P.,("Landlord") and The Dress
Barn, Inc., a Connecticut corporation as Tenant on September 10, 2002.
Famous Footwear
1. Lease between Denton Crossing Partners, LTD., aTexas limited
partnership ("Landlord") and Xxxxx Group Retail, Inc., a
Pennsylvania corporation (dba Famous Footwear), ("Tenant") on
August 28, 2002..
2. First Amendment to Lease on June 4, 2003 by and between ORIX Xxxx
Xxxxxx Venture, an Illinois general partnership and Xxxxx Group
Retail Inc., a Pennsylvania corporation (dba Famous Footwear)
("Tenant")
3. Second Amendment to Lease on September 15, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Xxxxx Group Retail, Inc.
(dba Famous Footwear) ("Tenant").
Fantasy Nails
Lease between Denton Crossing Partners, L.P., ("Landlord") and Xxxxx Xxx
Xxxx, an individual (dba Fantasy Nails)., ("Tenant") on August 8, 2002.
H&R Block
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and H&R Block and Associates, L.P. a Delaware limited
partnership, (dba H&R Block), ("Tenant") on November 7, 2003.
Happy Nails Spa
Lease between Denton Crossing Partners, L.P.("Landlord") and Le Xuanhao
Dizon (dba Happy Nail Spa)., ("Tenant") on September 17, 2002.
Hollywood Video
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Hollywood Entertainment Corporation,
an Oregon corporation ("Tenant") on March 14, 2003.
2. First Amendment on May 14, 2003 by and between ORIX Xxxx Xxxxxx
Venture an Illinois general partnership ("Landlord")and Hollywood
Entertainment Corporation, an Oregon corporation ("Tenant").
3. Confirmation of Lease Terms on December 19, 2003 by and between
ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and Hollywood Entertainment Corporation, an Oregon
corporation ("Tenant").
Lane Xxxxxx
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Lane Xxxxxx, Inc. a Delaware
corporation, ("Tenant") on May 13, 2003.
2. First Amendment to Lease on March 31, 2004 by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Lane Xxxxxx, Inc. a Delaware corporation ("Tenant").
Mattress Firm
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord"). and Mattress Firm, Inc., a Delaware corporation, ("Tenant")
on December 11, 2003.
Mattress Giant
Lease between Denton Crossing Partners, Ltd., a Texas limited
partnership, ("Landlord") and Mattress Giant I Limited Partnership, a
Texas limited partnership, ("Tenant") on August 29, 2002.
Michaels
1. Lease between Denton Crossing Partners, LTD, a Texas limited
partnership ("Landlord") and Michaels Stores, Inc., a Delaware
corporation, ("Tenant") on July 9, 2002.
2. Memorandum of Shopping Center Lease on July 9, 2002, by and
between Denton Crossing Partners, LTD, a Texas limited partnership
("Landlord") and Michaels Stores, Inc., a Delaware corporation
("Tenant').
3. Amended and Restated Memorandum of Shopping Center Lease on
September 27, 2002 by and between Denton Crossing Partners, LTD, a
Texas limited partnership ("Landlord") and Michaels Stores, Inc.,
a Delaware corporation ("Tenat")
4. First Amendment to Shopping Center Lease on October 7, 2002, by
and between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Michaels Stores, Inc., a Delaware
corporation ("Tenant").
5. Second Amendment to Shopping Center Lease on September 8, 2003, by
and between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership ("Landlord") and Michaels Stores, Inc. a Delaware
corporation ("Tenant").
6. Third Amendment to Lease on April 21, 2004, by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Michaels Stores, Inc. a Delaware corporation ("Tenant").
New York Subway
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Xxxxx Xxxxxx, an individual, and Xxx Xxxxxx, an
individual (dba New York Subway) ("Tenant") on May 15, 2003.
Old Navy
1. Lease between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership ("Landlord") and Old Navy (East) l.P., A California
limited partnership ("Tenant") on October 14, 2003.
2. Set Aside Letter Agreement on March 10, 2004, by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Old Navy (East) l.P., A California limited partnership
("Tenant")
Xxxxxx'x
1. Lease between Denton Crossing Partners, Ltd., a Texas limited
partnership, ("Landlord") and Gart Bros. Sporting Goods Company, a
Colorado corporation, (dba Xxxxxx'x) ("Tenant") on July 22, 2002
2. Memorandum of Shopping Center Lease on July 22, 2002, by and
between Denton Crossing Partners, LTD a Texas limited partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation, (dba Xxxxxx'x)
3. First Amendment to Shopping Center Lease on September 12, 2002, by
between Denton Crossing Partners, LTD a Texas limited partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation, (dba Xxxxxx'x).
4. Second Amendment to Shopping Center Lease on March 31, 2003, by
and between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership, ("Landlord") and Gart Bros. Sporting Goods Company a
Colorado corporation (dba Xxxxxx'x). ("Tenant").
5. Third Amendment to Shopping Center Lease on April 21, 2003, by and
between ORIX Xxxx Xxxxxx Venture an Illinois general partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation (dba Xxxxxx'x) ("Tenant")..
6. Fourth Amendment to Shopping Center Lease on June 2, 2003, by and
between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation (dba Xxxxxx'x). ("Tenant").
Sport Clips
1. Lease between Denton Crossing Partners, L.P., ("Landlord") and BSM
Enterprises, Inc. (dba Sport Clips) ("Tenant") on July 30, 2002
2. Landlord Lien Subordination on December 16, 2003, by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and BSM Enterprises, Inc.
(dba Sport Clips) ('Tenant").
Pier 1
1. Lease between Denton Crossing Partners, L.P., a Texas limited
partnership ("Landlord") and Pier 1 Imports (U.S), Inc., a
Delaware corporation Tenant on September 10, 2002
2. Memorandum of Lease on September 10, 2002, by and between ORIX
Xxxx Xxxxxx Crossing Partners, L.P., a Texas limited partnership
("Landlord") and Pier 1 Imports (U.S), Inc. a Delaware corporation
("Tenant")
3. First Amendment to Lease on June 16, 2003, by and between ORIX
Xxxx Xxxxxx Venture, and Illinois general partnership,
("Landlord") and Pier 1 Imports (U.S), Inc. a Delaware
corporation, ("Tenant").
Rice Boxx Asian Cafe
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and L.E.J.T. International, LLC, a Texas
limited liability company and Leipsner, LLC, a Texas limited
liability company (dba Rice Boxx Asian Cafe) ("Tenant") on
September 26, 2003.
2. First Amendment to Lease on December 20, 2003, by and between ORIX
Xxxx Xxxxxx Venture, Illinois general partnership ("Landlord") and
L.E.J.T. International, LLC, a Texas limited liability company and
Leipsner, LLC, a Texas limited liability company (dba Rice Boxx
Asian Cafe) ("Tenant")
Roly Poly
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and JKOK Corporation, a Texas corporation
(DBA Roly Poly Rolled Sandwiches) ("Tenant") on September 22, 2003
2. First Amendment to Lease on December 20, 2003, by and between ORIX
Xxxx Xxxxxx Venture, an Illinois general partnership ("Landlord")
and JKOK Corporation a Texas corporation (DBA Roly Poly Rolled
Sandwiches) ("Tenant").
Xxxxx Beauty Supply
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and Xxxxx Beauty Company, Inc., a Delaware corporation (dba
Xxxxx Beauty Suppy) ("Tenant") on August 19, 2003
T J Maxx
1. Lease between Denton Crossing Partners LTD., ("Landlord") and
Marmaxx Operating Corp., a Delaware corporation, (dba T J Maxx)
("Tenant") on May 20, 2002
2. . Memorandum of Lease on May 20, 2002 by and between Denton
Crossing Partners, LTD, Texas limited Partnership ("Landlord") and
Marmaxx Operating Corp., a Delaware corporation ("Tenant").
3. 4. First Amendment to Lease on October 3, 2002, by and between
ORiX Xxxx Xxxxxx Venture, and Illinois general partnership,
("Landlord") and Marmaxx Operating Corp., a Delawar corporation
(dba T J Maxx) ("Tenant").
4. Second Amendment to Lease on June 23, 2003, by and between ORIX
Xxxx Xxxxxx Venture ("Landlord") and Marmaxx Operating Corp., a
Delawar corporation (dba T J Maxx) ("Tenant").
5. Commencement Date Agreement on September 30, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Marmaxx Operating Corp.,
a Delawar corporation (dba T J Maxx) ("Tenant").
6. Recognition & Attornment Agreement, dated September 30, 2002 by
and between Marmaxx Operating Corp. ("Tenant") and ORIX Real
Estate Equities, Inc. ("Mortgagee")
T-Mobile
1. Lease between Denton Crossing Partners, L.P., as Landlord and
Voicestream GSM I Operating Company LLC, a Delaware limited
liability company (dba T-Mobile) ("Tenant") on March 1, 2004.
2. First Amendment between ORIX Xxxx Xxxxxx Venture, as Landlord and
Voicestream GSM I Operating Company, LLC, Tenant on April 15,
2004.
Xxxxx Fargo
Lease between Denton Crossing Partners, L.P., as Landlord and Xxxxx Fargo
Financial Texas, Inc., a Texas corporation (dba Xxxxx Fargo Financial)
("Tenant") on May 7, 2004.
Wing Pit
Lease between Denton Crossing Partners, L.P. as Landlord and Xxxxxx
Xxxxxxx and Xxxxxx Xxxx, each as an individual ("Tenant") on May 7,
2004.
VACANT SPACE LEASES TENANTS
Davanti Salon
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Xxxxxxx & Xxxxxxx LLC, a Texas limited liability company
(dba Avanti Salon), on April 21, 2004.
Chinese Buffet
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and Zhong Xxx Xxxxx and Xxx Xxxx Xxxxx and Xxxx Xxxxx, each
as an individual, on August 10, 2004
Kirkland's
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and Kirkland's Stores, Inc. a Tennessee corporation,
("Tenant") on March 30, 2004.
Mardel
Lease between ORIX Xxxx Xxxxxx Venture, Landlord and Mardel, Inc., Tenant
on August 6, 2004.
Motherhood Maternity
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Mothers Work, Inc. a Delaware corporation (dba
Motherhood Maternity) ("Tenant") on April 12, 2004
First Amendment to Lease, dated July 31, 2004, between ORIX Xxxx Xxxxxx
Venture and Mother's Work, Inc.
Nextel
Lease, dated October 12, 2004, between ORIX Xxxx Xxxxxx Venture and The
Customer Center Texas, LLC
Thai Restaurant
Lease between ORIX Xxxx Xxxxxx Venture, and Illinois general
partnership., ("Landlord") and Vichapong Boonme, aka Kan Boonme, an
individual (dba Thai Restaurant) ("Tenant") on November 21, 2003
EXHIBIT C
SCHEDULE OF LICENSES
None.
EXHIBIT D
CONTRACTS AND OTHER DISCLOSURES
See Attached
Denton Crossing
Contract Schedule
Contractor Service Beginning Ending Frequency Monthly Cost [ILLEGIBLE]
--------------------------------------------------------------------------------------------------------------------------------
ADT Security Services Fire Alarm Monitoring 8/13/2003 8/13/2006 Constant monitoring/2 $ 63.87
inspections/yr.
Amtech Lighting Lighting 11/1/2003 10/31/2004 Inspections every 30 $ 211.09
Services inspections/repairs days/repairs p.r.n.
City of Xxxxxx Trash removal 11/14/2003 11/13/2004 3 X's per week $ 312.69
City of Xxxxxx Trash removal 11/14/2003 11/13/2004 1 X per week $ 103.47
Dbox Xxxxxx Services 2/1/2004 12/31/2004 6 days per week (3 hrs M,W, $ 1,188.58
F-2 hrs T,T)
LMI Landscapes Landscaping 9/1/2003 8/31/2004 Weekly mow, edge, trim $ 5,162.76
Mister Sweeper Sweeping 1/30/2004 1/30/2005 7 X's per week $ 1,356.72
Xxxxx Pest Elimination Pest Control 12/15/2003 12/14/2004 Once per month $ 1,299.00
EXHIBIT E
LITIGATION
None.
EXHIBIT F
WORK
Construct the Vacant Space as follows:
Space 333 Cold dark shell, tenant work per lease with Xxxxxxxx'x Stores, Inc.
Space 334 Vanilla box, per lease with Mothers Work, Inc.
Space 335 Cold dark shell, tenant work per lease with Xxxxxxx & Xxxxxxx LLC
Space 336 Cold dark shell, tenant work per lese with Vichapong Boonme aka
Kan Boonme, an individual (dba Thai Restaurant)
Space 337 Cold dark shell, tenant work per any lease entered into for
this space before the final Earnout Closing
Space 338 Pad, paving, utility extensions to 5 feet, tenant work per lease
with Mardel, Inc.
Space 339 Cold dark shell, tenant work per any lease entered into for
this space before the final Earnout Closing
Space 340 Modified shell, as per lease with Zhong Xxx Xxxxx and Xxx Xxxx
Xxxxx and Xxxx Xxxxx, each as an individual
Space 640 Tenant work per any lease entered into for this space before
the final Earnout Closing
Space 750 Tenant work per any lease entered into for this space before
the final Earnout Closing
(see attached drawing for location of Spaces referenced above)
EXHIBIT G
NOTICE OF LEASE ASSIGNMENT
NOTICE TO ALL TENANTS OF
DENTON CROSSING
_______________, 2004
Ladies and Gentlemen:
Please be advised that _____________________________. ("New Owner") whose
address is 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, has today purchased
certain property located in Denton, Texas, and commonly known as Denton Crossing
(the "Property") from ORIX XXXX XXXXXX Venture ("Prior Owner"). In connection
with the sale, Prior Owner has transferred its interest in your lease of a
portion of the Property to New Owner.
As in the past, your rental payment is due on the first of each month,
but, hereafter, all checks should be made payable to New Owner.
All future rent checks, inquiries regarding the Property, and notices
should be sent to New Owner at the following address:
-----------------------------
Attn:________________________
0000 Xxxxxxxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
It will be necessary that you immediately delete Prior Owner under your
casualty and public liability insurance policies as of this date and substitute
New Owner as such insured as of this date. Please promptly forward evidence of
your insurance coverages and the aforesaid changes to New Owner at the address
set forth above.
If you have any questions, please do not hesitate to call or write the
New Owner at the address set forth above.
Very truly yours,
ORIX XXXX XXXXXX Venture, an Illinois general
partnership
By: ORIX Denton Limited Partnership, an
Illinois limited partnership, its partner
By: ORIX Power Center Denton, LLC,
its general partner
By: ORIX Real Estate Equities,
Inc., its managing member
By:
--------------------------
Name:
------------------------
Title:
-----------------------
EXHIBIT H
LEASING COMMISSION ESCROW AGREEMENT
TO BE ATTACHED*
[*The parties agree to reasonably cooperate with one another in order
to complete, approve, agree upon and attach Exhibit H prior to the expiration of
the Inspection Period.]
EXHIBIT I
LEASING COMMISSIONS/RENT CONCESSIONS/LEASING ALLOWANCES
See Attached
ORIX XXXX XXXXXX VENTURE
TENANT IMPROVEMENT PAYMENTS
LEASING COMN
Tenant/Source PAID Total LC Amount Due TI PAID Total TI Amount Due
---------------------------------------- ------------- ------------------- ------------- -------------------
Advance America $ 8,640.00 $ 0.00
Aveda $ 6,000.00 $ 40,000,00
Bed Bath & Beyond $ 48,000.00 $ 2,600.00 $ 0.00
Best Buy $ 105,856.50 $ 0.00
Carvel $ 3,621.00 $ 1,207.00 $ 12,070.00
Chaucers $ 20,000.00 $ 20,000.00 $ 200,000.00
Chipotle $ 66,564.00
Cold Stone Creamery $ 5,750.00 $ 750.00 $ 37,500.00
Cost Plus/World Market $ 82,350.00 $ 0.00 $ 28,593.75
Dressbarn #474 $ 24,000.00 $ 4,500.00 $ 96,000.00
Fantasy Nail $ 7,200.00 $ 18,000.00
Famous Footwear $ 70,000.00 $ 0.00
Gart Sports $ 275,000.00 $ 910,260.00
Good Friends Chinese Buffet $ 12,000.00 $ 12,000.00 $ 156,000.00
H&R Block $ 12,000.00 $ 30,000.00
Happy Nails (LeXuanhao Dizon) $ 7,782.00 $ 24,643.00
Hollywood Entertainment $ 52,290.00 $ 63,000.00
Kirklands $ 15,000.00 $ 15,000.00 $ 250,000.00
Lane Xxxxxx $ 30,000.00 $ 175,000.00
Mardel $ 56,281.50 $ 56,281.50 $ 1,138,456.00
Mattress Firm $ 18,000.00 $ 180,000.00
Mattress Giant $ 27,318.00 $ 68,295.00
Michaels $ 95,256.00 $ 0.00
Mothers Work $ 1,800.00 $ 1,800.00 $ 36,000.00
New York Subway $ 9,000.00 $ 30,000.00
Nextel $ 9,000.00 $ 30,000.00
Old Navy $ 33,300.00 $ 11,100.00 $ 653,272.00 $ 0.00
Pier One $ 38,000.00 $ 0.00
Rice Boxx $ 15,024.00 $ 100,160.00
Roly Poly $ 7,386.00 $ 21,600.00
Xxxxx Beauty $ 9,600.00 $ 6,400.00
Sport Clips $ 8,400.00 $ 4,500.00 $ 28,000.00
T-Mobile (Voicestream) $ 2,850.00 $ 2,850.00 $ 72,354.00
Thai Restaurant $ 15,069.07 $ 6,000.00 $ 30,000.00
TJ MAXX $ 84,000.00
Xxxxx Fargo $ 3,636.00 $ 3,636.00 $ 36,360.00
Wing Pit $ 3,614.00 $ 3,614.00 $ 32,526.00
--------------- ----------------- -----------------
$ 1,208,024.07 $ 158,238.50 $ 2,417,823.75 $ 2,155,830.00
EXHIBIT J
INITIAL TENANTS
See Attached
INITIAL TENANTS
Best Buy
1. Lease by and between Denton Crossing Partners, L.P., a Texas
limited partnership ("Landlord") and BEST BUY STORES, L.P., a
Delaware limited partnership ("Tenant") on May 24, 2002.
2. First Amendment to Lease on September 9, 2002 between Denton
Crossing Partners, LTD,. a Texas limited partnership ("Landlord")
and BEST BUY STORES, 1.P., a Delaware limited partnership
("Tenant")
3. Second Amendment to Lease on March 13, 2003 by and between ORIX
Xxxx Xxxxxx Venture, an Illinois general partnership ("Landlord"),
and Best Buy Stores, L.P., a Delaware corporation ("Tenant").
4. Third Amendment to Lease on July 16, 2003, between ORIX Xxxx
Xxxxxx Venture an Illinois general partnership ("Landlord") and
Best Buy Store, L.P., a Delaware corporation ("Tenant").
Bed Bath & Beyond
1. Lease between Denton Crossing Partners, LTD., a Texas Limited
Partnership ("Landlord") and Bed Bath & Beyond Inc., a New York
Corporation, ("Tenant") on July 26, 2002
2. First Amendment to Shopping Center Lease on May 30, 2003 by and
between ORIX Xxxx Xxxxxx Venture, Illinois general partnership
("Landlord") and Bed Bath & Beyond, Inc. a New York corporation,
("Tenant")
3. Rent Commencement and Expiration Date Agreement on November 11,
2003 by and between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership, ("Assignee") to Denton Crossing Partners, LTD., a
Texas limited partnership, ("Assignor") and Bed Bath & Beyond
Inc., ("Tenant")
4. Memorandum of Lease, dated July 26, 2002 by and between Denton
Crossing Partners, L.P. ("Landlord") and Bed Bath & Beyond, Inc.
("Tenant")
Carvel Ice Cream
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and AAA Worldwide Financial Co., a Texas corporation, (dba
Carvel Ice Cream) ("Tenant") on March 16, 2004
Cold Stone Creamery
Lease, dated September 17, 2004, between ORIX Xxxx Xxxxxx Venture and
Cold Stone Creamery Leasing Company, Inc.
Sublease, dated August 24, 2004, between Cold Stone Creamery Leasing
Company, Inc. and The Sleep King's Ice Cream Company
Advance America Servicing of Texas, L.P.
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and Advance America Servicing of Texas, L.P., a Texas
partnership on ("Tenant") February 3, 2003.
Cost Plus
1. Lease between Denton Crossing Partners, LTD., a Texas Limited
Partnership ("Landlord") and Cost Plus, Inc., a California
corporation ("Tenant")on May 13, 2003.
2. First Amendment to Shopping Center Lease on October 1, 2002 by and
between ORiX Xxxx Xxxxxx Venture, LLC an Illinois limited
liability company ("Landlord") and Cost Plus, Inc. a California
corporation (dba Cost Plus World Market) ("Tenant")
3. Second Amendment to Shopping Center Lease on March 10, 2003 by and
between ORIX Xxxx Xxxxxx Venture, LLC ("Landlord") and Cost Plus,
Inc (dba Cost Plus World Market) ("Tenant")
4. Third Amendment to Shopping Center Lease on May 27, 2003 by and
between ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus, Inc.
(dba Cost Plus World Market) ("Tenant")
5. Acknowledgement of Commencement on October 27, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus, Inc.
("Tenant")
6. Fourth Amendment to Shopping Center Lease on February 26, 2004 by
and between ORIX Xxxx Xxxxxx Venture ("Landlord") and Cost Plus,
Inc. ("Tenant")
7. Memorandum of Lease, dated April 25, 2002 by and between Denton
Crossing Partners, L.P. ("Landlord") and Cost Plus, Inc.
("Tenant")
Chaucer's, Inc.
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Chaucer's, Inc. a Texas corporation, ("Tenant") on March
24, 2004.
Chipotle Mexican Grill, Inc.
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Chipotle Mexican Grill, Inc., a Delaware corporation, on
August 13, 2003.
The Dress Barn
Lease between Denton Crossing Partners, L.P.,("Landlord") and The Dress
Barn, Inc., a Connecticut corporation as Tenant on September 10, 2002.
Famous Footwear
1. Lease between Denton Crossing Partners, LTD., a Texas limited
partnership ("Landlord") and Xxxxx Group Retail, Inc., a
Pennsylvania corporation (dba Famous Footwear), ("Tenant") on
August 28, 2002..
2. First Amendment to Lease on June 4, 2003 by and between ORIX Xxxx
Xxxxxx Venture, an Illinois general partnership and Xxxxx Group
Retail Inc., a Pennsylvania corporation (dba Famous Footwear)
("Tenant")
3. Second Amendment to Lease on September 15, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Xxxxx Group Retail, Inc.
(dba Famous Footwear) ("Tenant").
Fantasy Nails
Lease between Denton Crossing Partners, L.P., ("Landlord") and Xxxxx Xxx
Xxxx, an individual (dba Fantasy Nails)., ("Tenant") on August 8, 2002.
H&R Block
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and H&R Block and Associates, L.P. a Delaware limited
partnership, (dba H&R Block), ("Tenant") on November 7, 2003.
Happy Nails Spa
Lease between Denton Crossing Partners, L.P. ("Landlord") and Le Xuanhao
Dizon (dba Happy Nail Spa)., ("Tenant") on September 17, 2002.
Hollywood Video
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Hollywood Entertainment Corporation,
an Oregon corporation ("Tenant") on March 14, 2003.
2. First Amendment on May 14, 2003 by and between ORIX Xxxx Xxxxxx
Venture an Illinois general partnership ("Landlord")and Hollywood
Entertainment Corporation, an Oregon corporation ("Tenant").
3. Confirmation of Lease Terms on December 19, 2003 by and between
ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord") and Hollywood Entertainment Corporation, an Oregon
corporation ("Tenant").
Lane Xxxxxx
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Lane Xxxxxx, Inc. a Delaware
corporation, ("Tenant") on May 13, 2003.
2. First Amendment to Lease on March 31, 2004 by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Lane Xxxxxx, Inc. a Delaware corporation ("Tenant").
Mattress Firm
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership
("Landlord"). and Mattress Firm, Inc., a Delaware corporation, ("Tenant")
on December 11, 2003.
Mattress Giant
Lease between Denton Crossing Partners, Ltd., a Texas limited
partnership, ("Landlord") and Mattress Giant I Limited Partnership, a
Texas limited partnership, ("Tenant") on August 29, 2002.
Michaels
1. Lease between Denton Crossing Partners, LTD, a Texas limited
partnership ("Landlord") and Michaels Stores, Inc., a Delaware
corporation, ("Tenant") on July 9, 2002.
2. Memorandum of Shopping Center Lease on July 9, 2002, by and
between Denton Crossing Partners, LTD, a Texas limited partnership
("Landlord") and Michaels Stores, Inc., a Delaware corporation
("Tenant').
3. Amended and Restated Memorandum of Shopping Center Lease on
September 27, 2002 by and between Denton Crossing Partners, LTD, a
Texas limited partnership ("Landlord") and Michaels Stores, Inc.,
a Delaware corporation ("Tenat")
4. First Amendment to Shopping Center Lease on October 7, 2002, by
and between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and Michaels Stores, Inc., a Delaware
corporation ("Tenant").
5. Second Amendment to Shopping Center Lease on September 8, 2003, by
and between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership ("Landlord") and Michaels Stores, Inc. a Delaware
corporation ("Tenant").
6. Third Amendment to Lease on April 21, 2004, by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Michaels Stores, Inc. a Delaware corporation ("Tenant").
New York Subway
Lease between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Xxxxx Xxxxxx, an individual, and Xxx Xxxxxx, an
individual (dba New York Subway) ("Tenant") on May 15, 2003.
Old Navy
1. Lease between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership ("Landlord") and Old Navy (East) 1.P., A California
limited partnership ("Tenant") on October 14, 2003.
2. Set Aside Letter Agreement on March 10, 2004, by and between ORIX
Xxxx Xxxxxx Venture an Illinois general partnership ("Landlord")
and Old Navy (East) 1.P., A California limited partnership
("Tenant")
Xxxxxx'x
1. Lease between Denton Crossing Partners, Ltd., a Texas limited
partnership, ("Landlord") and Gart Bros. Sporting Goods Company, a
Colorado corporation, (dba Xxxxxx'x) ("Tenant") on July 22, 2002
2. Memorandum of Shopping Center Lease on July 22, 2002, by and
between Denton Crossing Partners, LTD a Texas limited partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation, (dba Xxxxxx'x)
3. First Amendment to Shopping Center Lease on September 12, 2002, by
between Denton Crossing Partners, LTD a Texas limited partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation, (dba Xxxxxx'x).
4. Second Amendment to Shopping Center Lease on March 31, 2003, by
and between ORIX Xxxx Xxxxxx Venture an Illinois general
partnership, ("Landlord") and Gart Bros. Sporting Goods Company a
Colorado corporation (dba Xxxxxx'x). ("Tenant").
5. Third Amendment to Shopping Center Lease on April 21, 2003, by and
between ORIX Xxxx Xxxxxx Venture an Illinois general partnership,
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation (dba Xxxxxx'x) ("Tenant")..
6. Fourth Amendment to Shopping Center Lease on June 2, 2003, by and
between ORIX Xxxx Xxxxxx Venture an Illinois general partnership
("Landlord") and Gart Bros. Sporting Goods Company a Colorado
corporation (dba Xxxxxx'x). ("Tenant").
Sport Clips
1. Lease between Denton Crossing Partners, L.P., ("Landlord") and BSM
Enterprises, Inc. (dba Sport Clips) ("Tenant") on July 30, 2002
2. Landlord Lien Subordination on December 16, 2003, by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and BSM Enterprises, Inc.
(dba Sport Clips) ("Tenant").
Pier 1
1. Lease between Denton Crossing Partners, L.P., a Texas limited
partnership ("Landlord") and Pier 1 Imports (U.S), Inc., a
Delaware corporation Tenant on September 10, 2002
2. Memorandum of Lease on September 10, 2002, by and between ORIX
Xxxx Xxxxxx Crossing Partners, L.P., a Texas limited partnership
("Landlord") and Pier 1 Imports (U.S), Inc. a Delaware corporation
("Tenant")
3. First Amendment to Lease on June 16, 2003, by and between ORIX
Xxxx Xxxxxx Venture, and Illinois general partnership,
("Landlord") and Pier 1 Imports (U.S), Inc. a Delaware
corporation, ("Tenant").
Rice Boxx Asian Cafe
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and L.E.J.T, International, LLC, a Texas
limited liability company and Leipsner, LLC, a Texas, limited
liability company (dba Rice Boxx Asian Cafe) ("Tenant") on
September 26, 2003.
2. First Amendment to Lease on December 20, 2003, by and between ORIX
Xxxx Xxxxxx Venture, Illinois general partnership ("Landlord") and
L.E.J.T. International, LLC, a Texas limited liability company and
Leipsner, LLC, a Texas limited liability company (dba Rice Boxx
Asian Cafe) ("Tenant")
Roly Poly
1. Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general
partnership ("Landlord") and JKOK Corporation, a Texas corporation
(DBA Roly Poly Rolled Sandwiches) ("Tenant") on September 22, 2003
2. First Amendment to Lease on December 20, 2003, by and between ORIX
Xxxx Xxxxxx Venture, an Illinois general partnership ("Landlord")
and JKOK Corporation a Texas corporation (DBA Roly Poly Rolled
Sandwiches) ("Tenant").
Xxxxx Beauty Supply
Lease between ORIX Xxxx Xxxxxx Venture, an Illinois general partnership,
("Landlord") and Xxxxx Beauty Compnay, Inc., a Delaware corporation (dba
Xxxxx Beauty Suppy) ("Tenant") on August 19, 2003
T J Maxx
1. Lease between Denton Crossing Partners LTD., ("Landlord") and
Marmaxx Operating Corp., a Delaware corporation, (dba T J Maxx)
("Tenant") on May 20, 2002
2. Memorandum of Lease on May 20, 2002 by and between Denton
Crossing Partners, LTD, Texas limited Partnership ("Landlord") and
Marmaxx Operating Corp., a Delaware corporation ("Tenant").
3. 4. First Amendment to Lease on October 3, 2002, by and between
ORiX Xxxx Xxxxxx Venture, and Illinois general partnership,
("Landlord") and Marmaxx Operating Corp., a Delawar corporation
(dba T J Maxx) ("Tenant").
4. Second Amendment to Lease on June 23, 2003, by and between ORIX
Xxxx Xxxxxx Venture ("Landlord") and Marmaxx Operating Corp., a
Delawar corporation (dba T J Maxx) ("Tenant").
5. Commencement Date Agreement on September 30, 2003 by and between
ORIX Xxxx Xxxxxx Venture ("Landlord") and Marmaxx Operating Corp.,
a Delawar corporation (dba T J Maxx) ("Tenant").
6. Recognition & Attornment Agreement, dated September 30, 2002 by
and between Marmaxx Operating Corp. ("Tenant") and ORIX Real
Estate Equities, Inc. ("Mortgagee")
T-Mobile
1. Lease between Denton Crossing Partners, L.P., as Landlord and
Voicestream GSM I Operating Company LLC, a Delaware limited
liability company (dba T-Mobile) ("Tenant") on March 1, 2004.
2. First Amendment between ORIX Xxxx Xxxxxx Venture, as Landlord and
Voicestream GSM I Operating Company, LLC, Tenant on April 15,
2004.
Xxxxx Fargo
Lease between Denton Crossing Partners, L.P., as Landlord and Xxxxx Fargo
Financial Texas, Inc., a Texas corporation (dba Xxxxx Fargo Financial)
("Tenant") on May 7, 2004.
Wing Pit
Lease between Denton Crossing Partners, L.P. as Landlord and Xxxxxx
Xxxxxxx and Xxxxxx Xxxx, each as an individual ("Tenant") on May 7, 2004.
EXHIBIT K
VACANT
SPACE
[GRAPHIC]
