Exhibit 10.121
PAGE 1
FEBRUARY 4, 2004
Majors & Majors (Broker) Xxxxxx-Xxxxxx No. 2
Attn: Xxxxx Xxxxx Limited Partnership (Seller)
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000 0000 XxXxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
(000) 000-0000 (000) 000-0000
RE: BLUEBONNET PARC SHOPPING CENTER
BATON ROUGE, LA.
Dear Xx. Xxxxx:
This letter ("Letter Agreement") represents this corporation's offer to
purchase the Bluebonnet Parc Shopping Center (the "Property") consisting of
approximately 135,289 net rentable square feet, situated on approximately 17
acres of land, located on Ring Road at the Mall of Louisiana, Baton Rouge,
Louisiana, more particularly described on Exhibit B attached hereto.
The above property shall include all the land and buildings and common
facilities, as well as all of Seller's right title and interest in and to all
intangible rights relating to the property. Seller represents and warrants that
it does not own tangible personal property in connection with the shopping
center, nor does it store any on site.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $22,000,000.00 all cash, plus or minus
prorations, with NO MORTGAGE CONTINGENCIES, to be paid at CLOSING 30
BUSINESS DAYS following the acceptance of this agreement (see Paragraph
10).
2. Seller represents and warrants (TO THE BEST OF THE SELLER'S KNOWLEDGE),
that the above referenced property is leased to the tenants described on
Exhibit A on leases covering the building and all of the land, parking
areas, reciprocal easements and REA agreements (if any), for the entire
terms and option periods contained in such leases. Any concessions given
to any tenants that extend beyond the closing day shall be settled at
closing by Seller giving a full cash credit to Purchaser for any and all
of those concessions.
3. Seller warrants and represents that Seller has received no written
notice that the property is not free of violations or that the property
is not in full compliance with Federal, State, City, and County
ordinances, environmental laws and concerns, and (TO THE BEST OF
SELLER'S KNOWLEDGE) the interior and exterior structures are in a good
state of repair, free of leaks and structural problems, and no one has a
lease that exceeds the lease term stated in said leases, nor does anyone
have an option or right of first refusal to purchase or extend (EXCEPT
SUCH EXTENSIONS PROVIDED IN THE LEASES), nor is there any contemplated
condemnation of any part of the property, except for the 1-10 taking, a
taking of the connector road, ring road, or an enforcement of the
drainage servitude behind the Best Buy premises, nor are there any
current or contemplated assessments.
4. Seller warrants and represents (TO THE BEST OF THE SELLER'S KNOWLEDGE),
that during the term of the leases the tenants and guarantors are
responsible for and pay all operating expenses relating to the property
on a prorata basis, including but not limited to, real estate taxes, REA
PAGE 2
agreements, utilities, insurance, all common area maintenance, parking
lot and the building, etc., only as set forth in the Leases.
Prior to closing, Seller shall not enter into or extend any agreements
without Purchaser's approval and any contract presently in existence not
accepted by Purchaser shall be terminated by Seller at Closing, but not
before. Any work presently in progress on the property shall be
completed by Seller prior to closing or, at Purchaser's option, Seller
may credit Purchaser in cash with an amount required to finish said
work.
5. Ten (10) days prior to closing Seller shall furnish Purchaser with
estoppel letters acceptable to Purchaser from all tenants, guarantors,
and parties to reciprocal and/or operating easement agreements, if
applicable.
6. Seller is responsible for payment of any LEASING BROKERAGE FEES or
commissions which are due any leasing brokers for the existing leases
stated above or for the renewal of same.
7. This offer is subject to Seller supplying to Purchaser prior to closing
a certificate of insurance from the tenants and guarantors in the form
and coverage acceptable to Purchaser for the closing.
8. Seller shall supply to Purchaser 10 days from the date of full execution
of this Letter Agreement a copy of Seller's existing environmental
report.
9. The above sale of the real estate shall be consummated by conveyance of
an act of cash sale in the form attached as Exhibit C from Seller to
Purchaser's designee, with the Seller paying any city, state, or county
transfer taxes for the closing, and Seller agrees to cooperate with
Purchaser's lender, if any, and the money lender's escrow.
10. The closing shall occur through Chicago Title & Trust Company ("Chicago
Title"), in Chicago, Illinois with Xxxxx Xxxxxx as Escrowee, 30 business
days following acceptance of this agreement, at which time title to the
above property shall be merchantable; i.e., free and clear of all liens,
encroachments and encumbrances (other than the Deed Exceptions and those
approved by Purchaser), and an ALTA form B owner's title policy with
complete extended coverage and required endorsements, waiving off all
construction (Private Works Act) liens, including 3.1 zoning including
parking and loading docks, and insuring all improvements as legally
conforming uses and not as non-conforming or conditional uses, paid by
Purchaser, shall be issued, with all warranties and representations
being true now and at closing, and each party shall be paid in cash
their respective credits, including, but not limited to, security
deposits, rent and expenses, with a proration of real estate taxes (all
as set forth in the Addendum attached hereto) with a later reproration
of taxes when the actual bills are received. At closing, no credit will
be given to Seller for any past due, unpaid or delinquent rents.
Notwithstanding anything contained herein to the contrary, the Act of
Cash Sale shall contain (i) the Deed Exceptions as more particularly
described in Exhibit D attached hereto and made a part hereof for all
purposes ("Deed Exceptions") and (ii) any additional Permitted
Exceptions not contained within such Deed Exceptions.
11. This offer is subject to Purchaser receiving, prior to closing, an
appraisal of the property acceptable to Purchaser or Purchaser's lender,
if any, at Purchaser's cost.
12. Neither Seller (Landlord) or any tenant and guarantor shall be in
default on any lease or agreement at closing, nor is there any
threatened or pending litigation of which Seller has received notice.
PAGE 3
13. Prior to closing, Seller shall furnish to Purchaser copies of all
guarantees and warranties which Seller received from any and all
contractors and sub-contractors pertaining to the property. This offer
is subject to Purchaser's satisfaction that all guarantees and
warranties survive the closing and are assignable and transferable to
any titleholder now and in the future.
14. Seller shall be responsible for payment of a real estate brokerage
commission, as per their agreement to Majors & Majors. Said commission
shall be paid through the closing escrow.
15. Fifteen (15) days prior to closing, Seller shall provide a current Urban
ALTA/ACSM spotted survey in accordance with the minimum standard detail
requirements for ALTA/ACSM Land Title surveys jointly established and
adopted by ALTA and ACSM in 1999 and includes all Table A optional
survey responsibilities and acceptable to Purchaser and the title
company.
This offer is, of course, predicated upon the Purchaser's review and written
approval during the Feasibility Period (defined in the Addendum attached hereto)
of the existing leases, new leases, lease modifications (if any), all tenant
correspondence, REA agreements, tenants' and guarantors' financial statements,
sales figures, representations of income and expenses made by Seller, site
inspection, environmental, appraisal, and Seller executing and delivering a
letter addressed to Purchaser's auditors in the form of Exhibit E attached
hereto in order to facilitate a post closing audit. Seller agrees to cooperate,
at no expense to Seller, with Purchaser and Purchaser's auditors in the conduct
of such audit.
If this offer is acceptable, please the original of this letter and initial
each page, keeping copies for your files and returning the original to me by
February 4, 2004.
Sincerely,
ACCEPTED: Xxxxxx-Xxxxxx INLAND REAL ESTATE ACQUISITIONS, INC.
No.2, Limited Partnership or nominee
By: GSDB No. 2, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------- /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxx
Title: President Xxxxxx X. Xxxxxxx
Date: February 4, 2004 Sr. Vice President
-------------------------
G. Xxxxxx Xxxxxxx
Vice Chairman
EXHIBIT A
BLUEDONNET PARO
RATON NOUGE, LOUISIANA
PRIMARY ANNUAL LEASE LEASE
ADDRESS TENANT SIZE/B.F. TERM/YRS YEARS RENTED RENT CONVEYANCE EXPIR OPTIONS
------------ -------------- --------- --------- ------------ ----------- -------------- ----------- ----------- ------------
5913 Best Buy 45,439 15 1-5 $ 13.00 690,408.00 1/23/02 1/31/17 Three, 5 yr.
Company 6-10 $ 13.50 813,113.00
11-15 $ 14.25 847,178.00
0, 18-20 $ 15.25 612,894.84
0, 21-25 $ 16.25 723,000.94
0, 28-30 $ 17.25 783,420.00
[ILLEGIBLE] Linen 'n Things 32,413 11 1-6 $ 11.50 572,807.00 [ILLEGIBLE] 1/11/14 Three, 5 yr.
7-11 $ 12.50 484,758.00
0, 12-16 $ 13.50 487,130.00
0, 17-21 $ 14.50 488,110.00
0, 22-28 $ 15.16 [ILLEGIBLE]
5916 C-3 Lifeway 9,181 10 1-5 $ 16.50 [ILLEGIBLE] 10/00/02 12/31/12 Two, 5 yr.
Christian 6-10 $ 17.05 158,195.05
Xxxxxxxxx 0, 00-00 $ 18.75 171,800.30
0, 18-20 $ 20.82 [ILLEGIBLE]
5916 C-2 The Mens 4,873 11 1-5 $ 20.00 91,490.00 10/13/02 [ILLEGIBLE] Two, 5 yr.
Wearhouse,Inc. 7-11 $ 21.00 104,423.00
0, 12-16 $ 22.00 108,490.00
0, 17-21 $ 25.00 114,379.00
5913 C-1 David's Bridal 9,088 19 1-5 $ 16.00 158,968.00 10/1/02 10/1/10 Two, 5 yr.
6-10 $ 17.00 178,000.00
0, 11-15 $ 18.38 183,000.00
0, 18-20 $ 21.30 213,000.00
5910 Cost Plan 14,380 11 1-5 $ 14.00 258,200.00 12/11/02 1/31/13 Three, 5 yr.
-------- 7-11 $ 14.50 215,250.00
0, 12-16 $ 15.50 [ILLEGIBLE]
0, 17-21 $ 16.50 801,950.00
0, 22-28 $ 17.50 $ 320,250.00
--------------
TOTALS 120,222 1,820,438.10
ADDENDUM
THIS ADDENDUM is attached to and made a part of that certain Letter
Agreement (the "Letter Agreement") dated February 4, 2004 prepared and delivered
by Inland Real Estate Acquisitions, Inc. (the "Purchaser") and addressed to
Xxxxxx-Xxxxxx No. 2 Limited Partnership (the "Seller").
RECITALS:
A. Unless otherwise defined herein, all capitalized terms used herein
shall have the meaning ascribed thereto in the Letter Agreement. The Letter
Agreement together with this Addendum shall be collectively referred to as the
"
Purchase Agreement".
B. In the event of a conflict between the terms and conditions of the
Letter Agreement and the terms and conditions of this Addendum, the terms and
conditions of this Addendum shall control.
NOW THEREFORE, in consideration of the mutual terms, provisions, covenants,
and agreements set forth within the Letter Agreement and this Addendum, and for
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Purchaser and Seller agree as follows:
1. DEPOSIT. Within ten (10) days from the date hereof, Purchaser shall
deposit the sum of $100,000 (the "Deposit") into a joint order escrow with
Chicago Title. The Deposit shall not be xxxxxxx money.
Unless otherwise provided for herein, if the transaction contemplated
hereby is not consummated by reason of Purchaser's breach or other failure to
timely perform all obligations and conditions to be performed by Purchaser,
Seller may, as Seller's sole and exclusive remedy, terminate this
Purchase
Agreement and receive the Deposit as liquidated damages; Purchaser and Seller
hereby agree that actual damages would be difficult or impossible to ascertain
and such amount is a reasonable estimate of the damages for such breach or
failure and Purchaser shall immediately execute whatever release (if any) is
required by Chicago Title. If the transaction contemplated hereby is not
consummated by reason of Seller's breach or other failure to timely perform all
obligations and conditions to be performed by Seller, Purchaser may, as its sole
and exclusive remedy, either (i) enforce specific performance of Seller's
obligations hereunder, subject to title objections which Seller has no
obligation to cure or correct, or (ii) terminate this
Purchase Agreement and
receive the Deposit.
2. TITLE AND SURVEY. Within five (5) business days of Purchaser's receipt of
(i) a commitment for an ALTA Owners Title Insurance Policy for the Property in
conformity with paragraph 10 of the Letter Agreement (the "Title Commitment")
together with legible copies of any and all title exception documents referenced
therein; and (ii) the Survey required to be delivered by Seller pursuant to
paragraph 15 of the Letter Agreement (the "Survey"), Purchaser may deliver to
Seller a notice (the "Title and Survey Notice") identifying any matters
referenced in or shown on the Title Commitment and/or the Survey (including,
without limitation, the Deed Exceptions) that are not acceptable to Purchaser in
its sole and absolute discretion (the
"Title/Survey Objections"). All other matters shown and referenced thereon and
therein shall be deemed "Permitted Exceptions".
If Purchaser shall deliver a Title and Survey Notice to Seller in
accordance with the foregoing, Seller shall, within five (5) days after receipt
of such notice, notify Purchaser in writing whether Seller intends to cause any
Title/Survey Objections to be removed, obtain affirmative title insurance
acceptable to Purchaser with respect thereto, or take no further action. In the
event Seller elects to take no further action, Purchaser may elect to either
terminate the
Purchase Agreement and receive a return of the Deposit or waive
the Title/Survey Objections whereupon they shall be deemed Permitted Exceptions.
Notwithstanding the foregoing, Seller shall be obligated to remove any
Title/Survey Objections relating to mortgages or monetary liens incurred or
assumed by Seller that can be satisfied solely by the payment of money.
3. FEASIBILITY PERIOD. The "Feasibility Period" shall commence on the date
the
Purchase Agreement is accepted by Seller and end at 5:00 p.m. Central Time
on that date which is thirty (30) days later. If for any reason whatsoever, or
no reason at all, Purchaser, in its sole and absolute discretion, is not
satisfied with the Property, the condition of title thereto, or the Submission
Matters (defined below), then Purchaser may elect, at its option, to terminate
this
Purchase Agreement by delivering notice of termination to Seller prior to
the expiration of the Feasibility Period.
4. PURCHASER'S INSPECTION. At all times after the date of this
Purchase
Agreement, Purchaser and its consultants, contractors, attorneys, advisers,
employees, directors, officers, lenders and prospective lenders, appraisers,
agents and representatives (collectively, the "Purchaser Parties") shall have
the right to enter upon the Property and to inspect, test, investigate and
survey: (i) the Property, (ii) all of Seller's financial records pertaining to
the operation of the Property, (iii) photocopies of all leases and contracts in
the possession of Seller, and (iv) other files and records in Seller's
possession or control other than attorney-client privileged information and
information dealing with potential sales, and Seller's evaluations of the
economics or value of the Property. The foregoing may be done at any reasonable
time during ordinary business hours upon not less than twenty-four (24) hours
prior notice to Seller, at Purchaser's sole cost and in a manner not disruptive
to tenants or the operation of the Property. Notwithstanding the foregoing,
Purchaser must obtain Seller's prior written approval (not to be unreasonably
withheld) of the scope and method of any third party inspection, testing or
investigation of the Property (other than a Phase I environmental inspection and
customary physical inspection) including, but without limitation, any invasive
testing, any inspection which would involve taking subsurface borings or related
investigations or any inspection which would materially alter the physical
condition of the Property. Seller and its representatives, agents, and/or
contractors shall have the right to be present during any testing,
investigation, or inspection of the Property. In no event shall Purchaser or any
of its agents, representatives or independent contractors contact any tenant at
the Property directly without prior notice to Seller.
All information provided by Seller to Purchaser or obtained by Purchaser
relating to the Property in the course of Purchaser's review, including, without
limitation, any environmental
assessment, property condition investigation or audit shall be treated as
confidential information by Purchaser provided, however, Purchaser may disclose
such information to the Purchaser Parties in connection with this transaction
and Purchaser shall instruct the Purchaser Parties as to the confidentiality of
all such information. In the event that this transaction is not closed for any
reason, then Purchaser shall maintain the confidentiality of such information,
shall require the Purchaser Parties not to disclose any such information to any
other party, except as may be required by law or judicial order, and shall, upon
Seller's written request, return all information provided by Seller.
Purchaser shall restore the Property to its condition existing immediately
prior to Purchaser's inspection, testing, investigation and survey thereof, and
Purchaser shall be liable for all damage or injury to any person or property
resulting from, relating to or arising out of any such inspection, testing,
investigation or survey, whether occasioned by the acts or Purchaser or any of
its employees, agents, representatives or contractors, except for any liability
arising out of the discovery of pre-existing conditions on the Property, and
Purchaser shall indemnify, defend and hold harmless Seller and its agents,
employees, officers, directors, and affiliates from any liability resulting
therefrom. This indemnification by Purchaser shall survive the Closing or the
termination of this
Purchase Agreement, as applicable, for a period of one year.
5. DUE DILIGENCE DELIVERIES. Seller shall deliver to Purchaser within five
(5) business days after the execution of this
Purchase Agreement, copies of the
following (the "SUBMISSION MATTERS"), to the extent (and only to the extent)
that such items are in Seller's actual possession or the possession of its
management company or any affiliate thereof:
(a) copies of the leases (and all amendments thereto) affecting the
Property;
(b) a copy of its landscaping contract;
(c) all licenses and permits with respect to the ownership and operation
of the Property, including, but not limited to, building permits and
certificates of occupancy;
(d) to the extent in Seller's possession, all warranties and guaranties
relating to the Property;
(e) operating statement for the year 2003;
(f) a copy of the wetlands mitigation information;
(g) Seller's existing survey;
(h) written notices pertaining to any pending or threatened condemnation
action; and
(i) those additional items listed on the due diligence list attached
hereto as Schedule I.
Any failure of Seller to timely deliver any of the Submission Matters
shall extend the Feasibility Period beyond the period prescribed in this
Purchase Agreement for a number of days equal to the delay in Seller's delivery,
not to exceed thirty (30) days.
EXCEPT WITH RESPECT TO ITEMS (A) AND (E) SET FORTH ABOVE, AND SCHEDULE I
ITEMS A(1), A(2), A(5), AND A(10)(C) AND (D), SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE
INFORMATION CONTAINED IN THE SUBMISSION MATTERS OR THE SOURCE THEREOF OR THAT
THE SUBMISSION MATTERS CONSTITUTE ALL RECORDS REGARDING THE PROPERTY. PURCHASER
FURTHER ACKNOWLEDGES THAT SELLER HAS NOT WARRANTED, AND DOES NOT HEREBY WARRANT,
THAT THE PROPERTY NOW OR IN THE FUTURE WILL MEET OR COMPLY WITH THE REQUIREMENTS
OF ANY SAFETY CODE, ENVIRONMENTAL LAW OR REGULATION OF THE STATE OF
LOUISIANA,
EAST BATON ROUGE PARISH OR THE CITY OF BATON ROUGE, OR ANY OTHER AUTHORITY OR
JURISDICTION.
6. CLOSING. At Closing, Seller shall execute and deliver and Purchaser shall
execute and acknowledge (a) an Assignment and Assumption Agreement in the form
of Exhibit F attached hereto, and (b) an Assignment and Assumption of Leases in
the form of Exhibit G attached hereto.
7. DISCLAIMERS. Except as expressly provided in this Purchase Agreement,
Seller has made no representation, warranty or guaranty, express or implied,
oral or written, past, present or future, of, as to, or including: (i) the
condition or state of repair of the Property, including, without limitation, any
hazardous materials (which includes all substances listed as such by applicable
law, all pollutants or asbestos and naturally-occurring but harmful substances
such as methane or radon) on, in, under, above, upon or in the vicinity of the
Property; (ii) the quality, nature, adequacy, and physical condition of the
Property, including but not limited to, the structural elements, environmental
issues, appurtenances, access, landscaping, parking facilities and the
electrical, mechanical, plumbing, sewage and utility systems and facilities;
(iii) the quality, nature, adequacy and physical condition of soils and geology
and the existence of ground water, (iv) the existence, quality, nature, adequacy
and physical conditions of utilities serving the Property; (v) the development
potential of the Property, its habitability, merchantability, or the fitness,
suitability or adequacy of Property for any particular purpose; (vi) the zoning
or other legal status of the Property; (vii) the Property or its operations'
compliance with any applicable codes, laws, regulations, statues, ordinances,
covenants, conditions, and restrictions of any governmental or
quasi-governmental entity or of any other person or entity, (viii) the quality
of any labor and materials. Seller and Purchaser agree that this provision shall
survive the execution of this agreement and the closing of the sale of the
Property.
Purchaser hereby expressly waives and denounces, any and all rights in
redhibition pursuant to
Louisianan Civil Code Article 2520, et seq., the
warranty imposed by
Louisiana Civil Code Article 2475(except with respect to
title), and its ability to rescind the sale of the Property or seek a reduction
in the Purchase Price for any reason whatsoever, and Purchaser hereby releases
Seller from any and all liability whatsoever in connection therewith. All
implied warranties with respect to the condition of the Property, including
those related fitness for a
particular purpose, will be, and are hereby disclaimed by Seller in any
controversy, claim, demand, or litigation arising from or in connection with the
Property. The Act of Cash Sale shall contain "as is" language. Purchaser hereby
acknowledges that the foregoing provisions have been brought to the attention of
Purchaser with and to the terms of these provisions are an integral part of this
sale, without which this sale would not have been entered into by Seller, and
the Purchase Price reflects and takes into consideration these provisions.
8. CLOSING CREDITS AND PRORATIONS. At closing:
(a) Purchase and Seller shall prorate real estate taxes for the year
of the Closing using the amount due for the year immediately
preceding the Closing (or for the year of Closing, if available).
Purchaser shall receive a credit in the amount of such real
estate taxes less the amount payable by tenants that, pursuant to
their leases, are required to pay the landlord their prorata
share annually upon presentment of the real estate tax xxxx.
Purchaser shall not receive a credit for real estate taxes paid
to the Seller as landlord by tenants required to pay a monthly
estimate of their prorata share of real estate taxes. However, in
the event that Purchaser determines that the monthly amount paid
by any such tenant (s) exceeds their proportionate share after
reconciling each tenants account for the year of the Closing,
Seller shall immediately pay Purchaser such overpayment upon
receipt of Purchasers reconciliation statement. Real estate taxes
are subject to reproration between Purchaser and Seller upon
receipt of the real estate tax xxxx for the year of the Closing
and each party agrees to make immediate payment to the party owed
any reprorated amount; provided, however, if any amount is owed
by Seller, Purchaser shall have first made a written demand upon
any tenant which may be liable under its lease for such amount;
and
(b) Seller shall credit Purchaser all amounts collected from tenants
under the leases for insurance and common area charges and
expenses, minus the actual amount of charges and expenses
expended by Seller for the period prior to closing.
9. ESCROW DEPOSITS. At closing, Seller shall deposit, with Chicago Title,
the following:
(a) An amount (the "Leasing Deposit") equal to:
(i) $16.00 per square foot plus actual annual triple net charges
(to be reasonably determined by Seller and Purchaser at
Closing) multiplied by 1.5 with respect to that certain
vacant space (the "Xxxxx Xxxx Space") which it is currently
anticipated Xxxxxx Xxxx shall lease aggregating 8,000 square
feet, (which amount may be adjusted before or after Closing
based upon actual measurement); and
(ii) $215,565.00 representing $20.53 per square foot for a
certain 7,000 square foot vacant space at the property
computed on the basis of 18 months.
(b) An amount (the "TI/Leasing Deposit") equal to:
(i) $126,000.00 representing $18.00 per square foot for the
7,000 square foot vacant space at the Property; and
(ii) all amounts due any party for tenant improvements or leasing
commissions pursuant to an executed lease and leasing
agreement pertaining to the Xxxxx Xxxx Space or,
alternatively, if no lease is executed prior to closing with
respect thereto, an amount equal to $18.00 per square foot
for the 8,000 square foot Xxxxx Xxxx Space.
The Xxxxx Xxxx Space and the 7,000 square foot vacant space
referenced above are hereinafter collectively referred to as the
"Vacant Space".
The Leasing Deposit shall be held in escrow by Chicago Title
subject to the terms and condition of this Agreement and shall be
disbursed as hereinafter provided. Commencing on the day of
closing, and continuing on the first day of each calendar month
thereafter for eighteen (18) months from the Closing Date,
Purchaser shall be entitled to receive from the Leasing Deposit,
an amount equal to one eighteenth (1/18) of the initial balance
of the Leasing Deposit, which monthly payment shall continue
until the earlier of (x) the date the Leasing Deposit has been
disbursed in full or (y) with respect to any portion of the
Vacant Space, the date that that portion of the Vacant Space has
been leased, all leasing commissions and tenant improvements
costs and expenses incurred in connection therewith have been
paid in full, the tenant has occupied the space, is open for
business, has commenced regularly scheduled monthly rent
payments, and a certificate of occupancy has been issued (with
respect to each Vacant Space the "Lease Up Event"). At such time
as the Lease Up Event has occurred with respect to a particular
space and Purchaser has received all requisite payments due
hereunder, the balance of the Leasing Deposit, if any, with
respect to such space, shall be released to Seller.
The TI/Leasing Commission Deposit shall be held in escrow by
Chicago Title subject to the terms and conditions of this
Purchase Agreement and shall be disbursed as hereinafter
provided. In the event that a lease is entered into for any
Vacant Space of the Property, then the leasing commissions and
tenant improvement costs payable with respect to such lease shall
be disbursed from the TI/Leasing Commission Deposit to the party
entitled to receive payment of the same; provided, however, (x)
disbursements from the TI/Leasing Deposit with respect to tenant
improvements costs shall be limited to the rate of $15.00 per
square foot in any one Vacant Space, unless otherwise approved by
Purchaser, and (y) disbursements from the TI/Leasing Commission
Deposit with respect to leasing commissions shall be limited to
the rate of $3.00 per square foot in any one Vacant Space, unless
otherwise approved by Purchaser. In the event that there are any
sums remaining in the TI Leasing Deposit on the date which is 18
months from the Closing Date, then such sums shall be remitted to
Purchaser.
This Section shall survive the Closing.
10. MISCELLANEOUS.
(a) This Purchase Agreement shall be construed under and in
accordance with the laws of the State of
Louisiana, and all
obligations of the parties created hereunder are performable in
East Baton Rouge Parish,
Louisiana.
(b) This Purchase Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, executors,
administrators, legal representatives, successors, and permitted
assigns. Purchaser shall be permitted to assign this Purchase
Agreement.
(c) In case any one or more of the provisions contained in this
Purchase Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provision hereof, and this Purchase Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never
been contained herein. Furthermore, in lieu of any such invalid,
illegal or unenforceable provision, there shall be automatically
added to this Purchase Agreement a provision as similar to such
illegal, invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
(d) This Purchase Agreement constitutes the sole and only agreement
of the parties hereto with respect to the subject matter hereof
and supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter
hereof and cannot be changed except by their written consent.
(e) Time is of the essence with this Purchase Agreement.
(f) Contemporaneously with the execution and delivery of this
Purchase Agreement, Purchaser has delivered to Seller and Seller
hereby acknowledges the receipt of a check in the amount of One
Hundred Dollars ($100.00) ("INDEPENDENT CONTRACT CONSIDERATION"),
which amount the parties bargained for and agreed to as
consideration for the Feasibility Period and right to inspect the
Property granted to Purchaser pursuant to this Purchase
Agreement. The Independent Contract Consideration is in addition
to and independent of any other consideration or payment provided
in this Purchase Agreement, is nonrefundable, and it is fully
earned and shall be retained by Seller notwithstanding any other
provision of this Purchase Agreement.
(g) Purchaser hereby acknowledges and certifies that it has been
advised that wastewater collection and treatment is to be
provided by a private wastewater company and that the City of
Baton Rouge, Parish of East Baton Rouge,
Louisiana is not
responsible or liable for any maintenance, operation, sewerage
backups, blockages or power outages or any otter wastewater
system failure and
that Purchaser shall advise its transferee of such system. This
statement is made to comply with Unified Development Code Title 7
Section 14.3(B)(5)(H).
(h) At closing, Seller shall deliver to Purchaser notices to tenants
(the "Tenant Letters") in a form reasonably acceptable to
Purchaser and Seller and executed by Seller. Purchaser hereby
expressly agrees, confirms and acknowledges that Purchaser shall
immediately after Closing deliver the Tenant Letters to the
respective tenants.
(i) Purchaser hereby acknowledges it is (or may be) the intention of
Seller to complete a deferred exchange and qualify for treatment
under Internal Revenue Code Section 1031. This exchange shall not
delay the Closing or cause any additional expense to Purchaser.
Seller's rights and obligations under this Purchase Agreement may
be assigned (without relieving Seller of any of its obligations
hereunder) to a Qualified Intermediary (as defined in IRS
Regulation 1.1031 (k)-l) of Seller's choice for the purpose of
completing the exchange. Purchaser agrees to reasonably cooperate
with Seller and the Qualified Intermediary in a manner reasonably
necessary to complete this exchange.
11. ADDITIONAL REPRESENTATIONS OF SELLER AND PURCHASER.
(a) Seller and Purchaser, respectively, are duly organized, validly
existing and in good standing under the laws of the state of
their respective organization and has full legal right, power and
authority to own and hold its properties and carry on its
business as presently conducted and to execute and deliver this
Agreement, and all other documents necessary or advisable to
consummate the transactions contemplated hereby and thereby and
to perform its obligations and agreements hereunder and
thereunder.
(b) The execution, delivery and performance by Seller and Purchaser
of this Agreement, and all other documents necessary or advisable
to consummate the transactions contemplated hereby and thereby
have been duly authorized by all necessary partnership or
corporate action and do not violate any provision of any law,
rule or regulation or the articles of incorporation or bylaws of
Seller or Purchaser.
(c) Execution and Delivery and Binding Effect. This Agreement and all
other documents necessary or advisable to consummate the
transactions contemplated hereby and thereby have been, or at the
Closing will be, duly executed and delivered by Seller and
Purchaser. This Agreement constitutes, and upon execution by
Seller and Purchaser, the Act of Sale and all other documents
necessary or advisable to consummate the transactions
contemplated thereby, will constitute the legal, valid and
binding obligations of Seller and Purchaser, as applicable,
enforceable in accordance with their respective terms.
(d) No Authorization Required. No authorization, consent, approval,
license or exemption of or filing or registration with any court
or governmental department,
commission, board, bureau, or agency of the State in which the
Property is located, or the United States, and no further consent
or approval including, but not limited to, any consent or
approval of the shareholders, directors, officers, or partners of
Seller or Purchaser is necessary for the valid execution and
delivery by Seller and Purchaser of this Agreement, the Act of
Sale and all other documents necessary or advisable to consummate
the transactions contemplated hereby and thereby, or the valid
performance by Seller and Purchaser of its respective obligations
under this Agreement, the Act of Sale and all other documents
necessary or advisable to consummate the transactions
contemplated hereby and thereby.
(e) Survival. Unless specifically set forth in this Contract, all of
Seller's representations, warranties, covenants and indemnities
(unless sooner terminated pursuant to the terms of this
Contract), whether created in this Contract or in the documents
to be executed by Seller at Closing, shall terminate and be of no
further force and effect one (1) year following the date of
Closing.
If, prior to Closing, Purchaser becomes aware, to its actual
knowledge, without any duty of inquiry, that any of the
representations or warranties of Seller is untrue, Purchaser
shall immediately notify Seller, whereupon Purchaser may, at any
time up to and including the date of Closing, either (i) accept
any remedy or cure of Seller; (ii) waive its objections and
proceed to Closing; or (iii) terminate this Purchase Agreement
and receive a refund of the Deposit as Purchaser's sole and
exclusive remedy, and neither party shall have any further rights
or obligations hereunder.
12. NOTICES. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefor, or when sent by facsimile
transmission, as evidenced by fax confirmation, whether or not actually received
by the person to whom addressed; (b) on the third (3rd) business day after being
sent, by certified or registered mail, postage prepaid, return receipt
requested, addressed to the intended recipient at the address specified below;
or (c) on the first (1st) business day after being deposited into the custody of
a nationally recognized overnight delivery service such as Federal Express or
United Parcel Service, addressed to such party at the address specified below.
For purposes of this SECTION 12, the addresses of the parties for all notices
are as follows (unless changed by similar notice in writing given by the
particular person whose address is to be changed):
If to Seller: Xxxxx X. Xxxxxx
Xxxxxx-Xxxxxx No. 2 Limited Partnership
0000 XxXxxxxx Xxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxx Xxxxxxxxx, Esq.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser: Inland Real Estate Acquisitions, Inc.
Attn: Xxxxxx Xxxxxxx
000 X. Xxxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: The Inland Real Estate Group, Inc.
Attn: Xxxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IN WITNESS WHEREOF, Purchaser and Seller have executed this Addendum as of
the 4 day of February, 2004.
PURCHASER: INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name:
---------------------------------
Title: SR V.P.
---------------------------------
SELLER: XXXXXX-XXXXXX NO. 2, LIMITED
PARTNERSHIP
By: GSDB No. 2, Inc.
----------------------------------
its general partner
------------------------------
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: President
----------------------------
EXHIBIT A
(TO BE INSERTED)
EXHIBIT B
LEGAL DESCRIPTION
A certain tract of land located in Section 58, T-7-S, R-1-E, Greensburg Land
District, East Baton Rouge Parish,
Louisiana, being more particularly described
as follows:
Commencing from the northwest corner of Parcel No. 5-5-D-1 as shown on right of
way map, State Project Xx. 000-00-00, Xxxxx Xxxxx to Xxxxxxxx Highway (Junction
Route I-12-Siegen Lane Sec.) by Xxxx X. Xxxxxx, Xx., dated July 18, 1969, said
point being the intersection of the southerly right of way of State Project No.
000-00-00 and a section line, which intersects the centerline of said project at
Highway Survey Station 565+52.70, said point also being the Point of Beginning.
Thence proceed along said southerly right of way South 62 DEG.10'18" East a
distance of 201.51 feet; thence continue Xxxxx 00XXX.00'00" Xxxx a distance
of 372.29 feet; thence continue South 53 DEG.33'14" East a distance of 446.84
feet; thence proceed South 28 DEG.26'10" West a distance of 1056.33 feet;
thence proceed North 53 DEG.30'09" West a distance of 250.65 feet; thence
proceed North 23 DEG.59'47" West a distance of 400.00 feet; thence proceed
North 14 DEG.49'47" West a distance of 408.55 feet; thence proceed North 23
DEG.56'46" West a distance of 160.67 feet; thence proceed North 36 DEG.25'06"
East a distance of 26.28 feet; thence proceed North 16 DEG.53'05" West a
distance of 65.85 feet; thence proceed North 28 DEG.25'51" East a distance of
389.73 feet to the Point of Beginning.
All as shown on that certain Map Showing Boundary and Topographic Survey dated
November 1, 1999, revised September 18, 2000 and last revised December 14, 2001
prepared by Xxxxxxx X. Xxxxx, Reg. No. 04609 of Xxxxxxxxx, Xxxxx Xxxx Xxxxxxxxx,
a copy of which is attached to the act recorded with the Clerk and Recorder of
Mortgages for East Baton Rouge Parish, Louisiana at Original 106, Bundle 11299;
SAVE AND EXCEPT. PARCEL 8-2-A-1 as shown on the map of ABMD Incorporated
entitled Picardy Avenue Interchange, City Parish Project No. 97-XX-XX-0016,
State Project No. ###-##-####, F. A. P. No. NH-10-3(254)162 of record as
Original 314 of Bundle 11436 of the Official Records in the Office of the Clerk
and Recorder of Mortgages of East Baton Rouge Parish, Louisiana; said parcel
having such measurements and/or dimensions as are depicted on the aforementioned
map.
EXHIBIT C
ACT OF CASH SALE UNITED STATES OF AMERICA
BY PARISH OF EAST BATON ROUGE
XXXXXX-XXXXXX NO. 2 STAT OF LOUISIANA
LIMITED PARTNERSHIP
TO
_______________________________
BE IT KNOWN that on the dates and at the places designated below, before
the respective undersigned witnesses and notaries public, duly commissioned and
qualified as such, personally came and appeared
XXXXXX-XXXXXX NO. 2 LIMITED PARTNERSHIP, a _______________________________
whose principal office is located at ________________________, appearing
herein by and through Xxxxx Xxxxxx, its _________________________, duly
authorized pursuant to _______________________________________________
(hereinafter referred to as "Seller"),
who did declare that Seller does, by these presents, sell, transfer and deliver
without warranty of title, except as to the Seller's own acts and deeds, and
with full subrogation to all of Seller's rights and actions of warranty of title
which Seller has or may have against all previous owners and together with all
of Seller's rights of prescription, both liberative and acquisitive, unto:
[APPEARANCE CLAUSE FOR PURCHASER]
(hereinafter referred to as "PURCHASER");
to have and to hold, unto for the benefit of Purchaser, and Purchaser's
successors and assigns, the following described property:
[LEGAL DESCRIPTION OF PROPERTY]
, together with all of Seller's right, title and interest in and to all
buildings, improvements, easements, servitudes, appurtenances, rights,
privileges belonging or appertaining to the property, including, but not limited
to, all of Seller's right, title and interest in and to any land lying in the
bed of any street, road or avenue, opened or proposed, adjoining the property.
(hereinafter referred to as the "PROPERTY")
The municipal address of the Property is _____________________________.
This sale is made and accepted for and in consideration of the sum of ($)
DOLLARS cash in hand paid, the receipt and adequacy of which are acknowledged by
Seller.
Taxes for the year 2004 will be prorated as of the date of sale and paid.
In accordance with La. R.S. 9:272l(B), from and after the date of this
sale, (a) the name of the person responsible for all property taxes and
assessments is Purchaser, and (b) all property taxes and assessment notices
should be mailed to the following address: _____________________________________
___________________________.
All parties signing this instrument have declared themselves to be of full
legal capacity.
All agreements and stipulations herein and all the obligations herein
assumed shall inure to the benefit of and be binding upon the heirs, successors
and assigns of the respective parties, and Purchaser, their heirs, successors
and assigns, shall have and hold the Property in full ownership forever.
The Property is conveyed subject to the matters set forth on Exhibit "A",
attached hereto,
The Property will be sold "as is, where is", with all faults, and except as
expressly provided in this Agreement and the Purchase Agreement dated January
_____, 2004 between Seller and Purchaser's assignor, without any warranties,
express or implied, including but not limited to warranties of condition,
fitness for a particular purpose or habitability. Purchaser acknowledges that,
except as expressly provided herein and in the above described Purchase
Agreement, Seller has made no representation, warranty or guaranty, express or
implied, oral or written, past, present or future, of, as to, or including: (i)
the condition or state of repair of the Property, including, without limitation,
any hazardous materials (which includes all substances listed as such by
applicable law, all pollutants or asbestos and naturally-occurring but harmful
substances such as methane or radon) on, in, under, above, upon or in the
vicinity of the Property; (ii) the quality, nature, adequacy, and physical
condition of the Property, including but not limited to, the structural
elements, environmental issues, appurtenances, access, landscaping, parking
facilities and the electrical, mechanical, plumbing, sewage and utility systems
and facilities; (iii) the quality, nature, adequacy and physical condition of
soils and geology and the existence of ground water, (iv) the existence,
quality, nature, adequacy and physical conditions of utilities serving the
Property; (v) the development potential of the Property, its habitability, or
the fitness, suitability or adequacy of Property for any particular purpose;
(vi) the zoning or other legal status of the Property; (vii) the Property or its
operations' compliance with any applicable codes, laws, regulations, statues,
ordinances, covenants, conditions, and restrictions of any governmental or
quasi-governmental entity or of any other person or entity; (viii) the quality
of any labor and materials. Seller and Purchaser agree that this provision shall
survive the execution of this agreement and the closing of the sale of the
Property. Purchaser hereby expressly waives and denounces, any and all rights in
redhibition pursuant to Louisianan Civil Code Article 2520, et seq., the
warranty imposed by Louisiana Civil Code Article 2475(except with respect to
title), and its ability to rescind the sale of the Property or seek a reduction
in the Purchase Price for any reason whatsoever, and Purchaser hereby releases
Seller from any and all liability whatsoever in connection therewith. All
implied warranties with respect to the Property, including those related fitness
for a particular purpose, will be, and are hereby disclaimed by Seller in any
controversy, claim, demand, or litigation arising from or in connection with the
Property. Purchaser hereby acknowledges that the foregoing provisions have been
brought to the
attention of Purchaser with and to the terms of these provisions are an integral
part of this sale, without which this sale would not have been entered into by
Seller, and the Purchase Price reflects and takes into consideration these
provisions.
Purchaser and Seller dispense with the production of any mortgage
certificate, tax receipts or other certificates that may be required by law and
the undersigned Notary is released from any responsibility or liability for not
producing and/or attaching same. The undersigned Notary has not rendered, nor
has he been requested to render, an opinion on the title to the Property
transferred pursuant to this instrument; nor has the undersigned Notary made any
warranty or representation as to the zoning of the Property.
--SIGNATURES ON THE FOLLOWING PAGE--
This act has been passed in the Parish of East Baton Rouge, State of
Louisiana on the __________ day of __________, 2004, in the presence of the
undersigned competent witnesses and me, Notary Public, after due reading of the
whole.
WITNESSES: SELLER:
---------------------------- XXXXXX-XXXXXX NO. 2 LIMITED
PARTNERSHIP
----------------------------
Printed Name of Witness By:
----------------------------
Name:
----------------------------
Title:
----------------------------
----------------------------
----------------------------
Printed Name of Witness
-----------------------------------
Notary Public
-----------------------------------
Printed Name of Notary Public
My Commission is for Life
This act has been passed in the Parish of East Baton Rouge, State of
Louisiana on the __________ day of __________, 2004, in the presence of the
undersigned competent witnesses and me, Notary Public, after due reading of the
whole.
WITNESSES: PURCHASER:
----------------------------
----------------------------
Printed Name of Witness By:
----------------------------
Name:
----------------------------
Title:
----------------------------
----------------------------
----------------------------
Printed Name of Witness
-----------------------------------
Notary Public
-----------------------------------
Printed Name of Notary Public
My Commission is for Life
EXHIBIT D TO CONTRACT
DEED EXCEPTIONS
1. Act of Cash Sale into Seller recorded with the Clerk and Recorder of
Mortgages for East Baton Rouge Parish, Louisiana at Original 106, Bundle
11299.
2. Agreement between Xxxxxx X. Xxxxxxxx et al and the Parish of East Baton
Rouge/City of Baton Rouge, for drainage and drainage maintenance purposes,
recorded with the Clerk and Recorder of Mortgages for East Baton Rouge
Parish, Louisiana on April 29, 1958 at Original 79, Bundle 4152, as shown
on that certain Map Showing Boundary and Topographic Survey dated November
1, 1999, revised September 18, 2000 and last revised December 14, 2001
prepared by Xxxxxxx X. Xxxxx, Reg. No. 04609 of Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, and attached to the act recorded with the Clerk and Recorder of
Mortgages for East Baton Rouge Parish, Louisiana at Original 106, Bundle
11299.
3. Drainage Easement created by instrument recorded with the Clerk and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana on November
20, 1970 at COB 2143, Page 188, as shown on that certain Map Showing
Boundary and Topographic Survey dated November 1, 1999, revised September
18, 2000 and last revised December 14, 2001 prepared by Xxxxxxx X. Xxxxx,
Reg. No. 04609 of Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx, and attached to the act
recorded with the Clerk and Recorder of Mortgages for East Baton Rouge
Parish, Louisiana at Original 106, Bundle 11299.
4. Oil, Gas and Mineral Lease by Xxxxxx Xxxxxxxx, et al to X.X. Xxxxxx, Xx.,
recorded with the Clerk and Recorder of Mortgages for East Baton Rouge
Parish, Louisiana on May 1, 1976 at Original 320, Bundle 9145. The surface
rights have been released by Waiver of Surface Rights executed by J.P, Oil
Company, Inc. dated December 20, 1999 and recorded with the Clerk and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana on January 7,
2000 at Original 575, Bundle 11084.
5. Reciprocal Servitude Agreement and Agreement Imposing Restrictive Covenants
dated December 17, 2001 between Mall of Louisiana Associates and
Xxxxxx-Xxxxxx No. 2 Limited Partnership, recorded with the Clerk and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana at Original
110, Bundle 11299, as amended by that certain First Amendment to Reciprocal
Servitude Agreement and Agreement Imposing Restrictive Covenants dated June
10, 2003, recorded with the Clerk and Recorder of Mortgages for East Baton
Rouge in Original 305, Page 11488.
6. Future Frontage Road as shown on that certain Map Showing Boundary and
Topographic Survey dated November 1, 1999, revised September 18, 2000 and
last revised December 14, 2001 prepared by Xxxxxxx X. Xxxxx, Reg. No. 04609
of Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx, and attached to the act recorded with
the Clerk and Recorder of Mortgages for East Baton Rouge Parish, Louisiana
at Original 106, Bundle 11299.
7. Ten foot (10') utility servitude as shown on that certain Map Showing
Boundary and Topographic Survey dated November 1, 1999, revised September
18, 2000 and last revised December 14, 2001 prepared by Xxxxxxx X. Xxxxx,
Xxx, Xx. 00000 of Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx, and attached to the act
recorded with the Clerk and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana at Original
106, Bundle 11299.
8. Predial Servitude, two foot (2') wide located contiguous to the entire
eastern boundary of the insured property, specifically for the purpose of a
"Buffer Zone", having no improvements of any kind constructed on or in the
Buffer Zone (including without limitation buildings, other structures,
roadways, sidewalks, driveways, paving, asphalt, concrete and any other
improvements), no right of access, ingress, egress and passage, created
pursuant to the Cash Sale dated December 17, 0000 xxxxxxx Xxxx xx Xxxxxxxxx
Associates and Xxxxxx-Xxxxxx No. 2 Limited Partnership, recorded with the
Clerk and Recorder of Mortgages for East Baton Rouge Parish, Louisiana at
Original 106, Bundle 11299.
9. Excavation Agreement dated December 17, 2001 between Mall of Louisiana
Associates and Xxxxxx-Xxxxxx No. 2 Limited Partnership, recorded with the
Clerk and Recorder of Mortgages for East Baton Rouge Parish, Louisiana at
Original 111, Bundle 11299.
10. Notice of Contract by and between Xxxxxx-Breiwer No. 2 Limited Partnership,
as Owner, and U.S. Builders, Inc. as Contractor, dared December 17, 2001
and recorded February 14, 2002 with the office of the Clerk of Court and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana at Original
873, Bundle 11316.
11. Extract of Lease dated January 24, 2002 by Xxxxxx-Xxxxxx No. 2 Limited
Partnership as Landlord and Cost Plus, Inc. as Tenant, recorded with the
Clerk and Recorder of Mortgages for East Baton Rouge Parish, Louisiana at
Original 598, Bundle 11313.
12. Donation, Dedication of Right(s) of Way and Agreement by and between
Xxxxxx-Xxxxxx No. 2 Limited Partnership and The City of Baton Rouge and
Parish of East Baton Rouge, a Political Subdivision of the State of
Louisiana.
EXHIBIT E
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 (which shall be defined as the current actual knowledge of
Xxxxx X. Xxxxxx, President of the general partner of Xxxxxx-Xxxxxx No. 2 Limited
Partnership), 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 should be considered for disclosure in the Historical
Summary or as a basis for recording a loss contingency.
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 generally accepted accounting
principles.
Sincerely,
EXHIBIT F TO CONTRACT
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Agreements)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter called this
"ASSIGNMENT") is made and entered into effective as of the _____ day of
__________, 200___, between ____________________(the "ASSIGNOR"), a
_______________, and __________ (the "ASSIGNEE"), a _____________.
WITNESSETH:
That the Assignor, for good and valuable consideration, the receipt of
which is hereby acknowledged, hereby GRANTS, TRANSFERS and ASSIGNS to the
Assignee all of Assignor's right, title and interest in and to (i) only to the
extent they have not been cancelled or terminated, are assignable without the
consent of third parties, and relate solely to the Premises, any contracts,
agreements, warranties, guaranties, indemnities and claims, licenses, permits or
similar documents, telephone exchanges, trade names, marks and other identifying
material, (ii) any and all plans, drawings, specifications, surveys, engineering
reports, and other technical descriptions possessed by Assignor and relating
solely to the Premises, (iii) without recourse or representation of any nature,
any and all claims that Assignor may have against any third party for, among
other things, any errors, omissions or defects in the construction or repair of
the Premises and (iv) the Reciprocal Servitude Agreement and Agreement Imposing
Restrictive Covenants dated December 7, 2001, and recorded with the Clerk and
Recorder of Mortgages for East Baton Rouge Parish, Louisiana at Original 110,
Bundle 11299 (as amended)(collectively the items described in (i) through (iv)
above being herein called the "PROPERTY").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights, titles, and interests thereto in anywise belonging, to Assignee, its
successors and assigns forever, subject to the matters to which that certain Act
of Cash Sale ("Cash Sale") of even date herewith from Assignor to Assignee
conveying the property described on EXHIBIT A hereto is made subject as fully as
if and for all purposes as if the Property were included and described in the
Cash Sale.
Assignor has executed this Assignment and GRANTED, TRANSFERRED and ASSIGNED
the Property and Assignee has accepted this Assignment and purchased the
Property AS IS AND WHEREVER LOCATED, WITHOUT ANY REPRESENTATIONS OR WARRANTIES
OF WHATSOEVER NATURE, EXPRESS, IMPLIED, OR STATUTORY, IT BEING THE INTENTION OF
ASSIGNOR AND ASSIGNEE TO EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES WHATSOEVER,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY AFFIRMATION OF FACT OR
PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY OR BY ANY SAMPLE OR MODEL AND ANY
WARRANTY AGAINST REDHIBITION, VICES AND DEFECTS.
It is understood and agreed that, by Assignee's execution hereof, Assignee
hereby assumes and agrees to pay and perform all of the terms, covenants,
conditions and obligations of the Assignor or owner of the Premises under or
with respect to the Property arising or accruing on or after the date hereof,
and agrees to indemnify, defend and hold Assignor harmless from and against any
claims, costs or liabilities in connection therewith arising or accruing on or
after the date hereof. Assignee agrees to notify the tenants under the Leases of
the sale of the Premises, that Assignee has purchased the Premises and is
entitled to all rents accruing on or after the date hereof, and that Assignee
has received and assumed responsibility for all Deposits held by Assignor prior
to the date hereof.
It is understood and agreed that, by Assignor's execution hereof, Assignor
hereby assumes and agrees to pay and perform all of the terms, covenants,
conditions and obligations of the Assignor or owner of the Premises under or
with respect to the Property arising or accruing prior to the date hereof, and
agrees to indemnify, defend and hold Assignee harmless from and against any
claims, costs or liabilities in connection therewith arising or accruing prior
to the date hereof.
EXECUTED as of the date first above written.
ASSIGNOR:
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ASSIGNEE:
--------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Exhibit A - Description of the Land
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on ___________, 20__, by
________________, _______________________ of ___________________, a
__________________, on behalf of said ________.
----------------------------
Notary Public in and for
the State of TEXAS
Printed Name:
---------------
My commission expires:
-------------
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on __________, 20___, by
_________________, ______________ of ____________, a ____________________, on
behalf of said ____________________.
----------------------------
Notary Public in and for
the State of TEXAS
Printed Name:
---------------
My commission expires:
-------------
EXHIBIT A
[INSERT LEGAL]
EXHIBIT G TO CONTRACT
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Leases)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (hereinafter called this
"ASSIGNMENT") is made and entered into effective as of the ______ day of
__________, 200___, between ____________________ (the "ASSIGNOR"), a
____________________, and ______________ (the "ASSIGNEE"), a ______________.
WITNESSETH:
That the Assignor, for good and valuable consideration, the receipt of
which is hereby acknowledged, hereby GRANTS, TRANSFERS and ASSIGNS to the
Assignee all of Assignor's right, title and interest in and to (i) any and all
leases, franchises, licenses, occupancy agreements, or other agreements,
including without limitation, those certain Leases as described in EXHIBIT B
attached hereto and made a part hereof for all purposes (as amended, the
"LEASES"), demising space in or otherwise relating to the improvements now
existing on the property described on EXHIBIT A, attached hereto and made a part
hereof (the "PREMISES"), and (ii) all security deposits ("DEPOSITS") held by
Assignor under the Leases (collectively the items described in (i) through (ii)
above being herein called the "PROPERTY").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights, titles, and interests thereto in anywise belonging, to Assignee, its
successors and assigns forever, subject to the matters to which that certain Act
of Cash Sale ("Cash Sale") of even date herewith from Assignor to Assignee
conveying the property described on EXHIBIT A hereto is made subject as fully as
if and for all purposes as if the Property were included and described in the
Cash Sale.
Assignor has executed this Assignment and GRANTED, TRANSFERRED and ASSIGNED
the Property and Assignee has accepted this Assignment and purchased the
Property AS IS AND WHEREVER LOCATED, WITHOUT ANY REPRESENTATIONS OR WARRANTIES
OF WHATSOEVER NATURE, EXPRESS, IMPLIED, OR STATUTORY, IT BEING THE INTENTION OF
ASSIGNOR AND ASSIGNEE TO EXPRESSLY NEGATE AND EXCLUDE ALL WARRANTIES WHATSOEVER,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY AFFIRMATION OF FACT OR
PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY OR BY ANY SAMPLE OR MODEL AND ANY
WARRANTY AGAINST REDHIBITION, VICES AND DEFECTS.
It is understood and agreed that, by Assignee's execution hereof, Assignee
hereby assumes and agrees to pay and perform all of the terms, covenants,
conditions and obligations of the Assignor or owner of the Premises under or
with respect to the Property arising or accruing on or after the date hereof,
and agrees to indemnify, defend and hold Assignor harmless from and against any
claims, costs or liabilities in connection therewith arising or accruing on or
after the date hereof. Assignee agrees to notify the tenants under the Leases of
the sale of the Premises, that Assignee has purchased the Premises and is
entitled to all rents accruing on or after the date hereof, and that Assignee
has received and assumed responsibility for all Deposits held by Assignor prior
to the date hereof.
It is understood and agreed that, by Assignor's execution hereof, Assignor
hereby assumes and agrees to pay and perform all of the terms, covenants,
conditions and obligations of the Assignor or owner of the Premises under or
with respect to the Property arising or accruing prior to the date hereof, and
agrees to indemnify, defend and hold Assignee harmless from and against any
claims, costs or liabilities in connection therewith arising or accruing prior
to the date hereof.
EXECUTED as of the date first above written.
ASSIGNOR:
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By:
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Name:
---------------------------------
Title:
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ASSIGNEE:
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By:
-----------------------------------
Name:
---------------------------------
Title:
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Exhibit A - Description of the Land
THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on ______________, 20___, by
______________, ______________ of ______________, a _________________, on behalf
of said ________.
---------------------------
Notary Public in and for
the State of TEXAS
Printed Name:
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My commission expires:
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THE STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on ______________, 20___, by
___________________, ____________________ of ____________________, a
__________________, on behalf of said ______________.
---------------------------
Notary Public in and for
the State of TEXAS
Printed Name:
-------------
My commission expires:
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EXHIBIT A
[INSERT LEGAL]
SCHEDULE I
DUE DILIGENCE CHECKLIST
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I. NAME OF PROPERTY: Comments
================================================================================
II. A. FINANCIAL INFORMATION
1. Copy of leases and any guarantees ______________
2. Current Rent Roll ______________
3. Standard Lease Form ______________
4. Latest leasing status report
5. Summary of recent lease transactions including rate and
tenant improvement allowances ______________
6. List of current tenants, if any, on percentage rent
only or percentage rent in lieu basis ______________
7. List of specialty license agreements ______________
8. Pro forma budget and year to date statement. ______________
9. Prior year's general ledger statement + Year-to-date
statement ______________
10. Last year's bills for:
a. Real estate taxes ______________
b. Insurance
1) Liability ______________
2) Property ______________
c. Reconciliations for CAM/taxes/insurance ______________
d. Statement of current monthly amounts paid by
tenants for CAM/tax/insurance plus a year-to-date
balance of amounts paid by each tenant ______________
11. Information related to any recent CAM or TAX Audits,
including copies of reports ______________
12. Leakage report of reimbursable expenses by tenant. ______________
13. Base rent collected since August, 2002. ______________
14. Physical occupancy since August, 2002. ______________
15. Receivables status/aging report ______________
16. Tenant sales reports for last three years ______________
17. Tenant financial statements ______________
18. Lease expirations - next three years ______________
a. Status of expirations, with kick-outs, with
respect to renewal ______________
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I. NAME OF PROPERTY: Comments
================================================================================
possibilities ______________
B. EXPENSE INFORMATION ______________
1. Twelve months of consecutive utility bills ______________
a. Water
b. Gas
c. Electric
d. Telephone and dedicated lines, if any ______________
2. Copies of all service agreements, contracts or any
leases that encumber the property, if any ______________
a. Fire/burglar alarm ______________
b. Antenna cable/satellite dish ______________
c. Cleaning
d. Exterminating ______________
e. Landscaping ______________
f. Scavenger ______________
g. Security service ______________
h. Snow removal ______________
i. Towing ______________
j. Union contracts ______________
k. Elevator ______________
l. Uniform rental ______________
m. Water softeners ______________
n. Leasing ______________
o. Management ______________
p. Advertising ______________
q. Tax reduction legal fees ______________
r. Any other service contracts or leases not
cancelable in 90 days ______________
3. Capital Improvements ______________
a. Capital improvements over the last 36 months,
if any ______________
b. Five-year capital expenditure forecast ______________
c. Assignable warranties
C. ENVIRONMENTAL REPORTS ______________
1. Phase I ______________
2. Other, if any ______________
______________
______________
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I. NAME OF PROPERTY: Comments
================================================================================
D. MISCELLANEOUS ______________
1. Code violations, if any
a. Current and outstanding ______________
b. Last 24 months, with compliance ______________
c. Contact municipalities as to other problems
2. Easement/encumbrances: restrictive easement
agreements/operating easement agreements
3. Warranties
4. Current tenant contact list ______________
5. Certificates of insurance from tenants ______________
6. Current insurance policies (building and common area) ______________
a. Property ______________
b. Liability ______________
c. Umbrella ______________
7. Marketing/leasing brochures ______________
8. Survey
9. Site plan ______________
10. Building photographs and aerials ______________
11. Certificates of Occupancy ______________
12. Building Plans and Specifications ______________
______________
______________
______________
______________
______________
______________
______________
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