Exhibit 10.390
Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX
Second Amendment to Agreement
SECOND AMENDMENT TO AGREEMENT
This SECOND AMENDMENT TO AGREEMENT (the "Second Amendment") is made
and entered into as of the 19th day of November 2004, by and between University
Retail Company, L.L.C., a Delaware limited liability company and University
Retail Company II, L.L.C., a Delaware limited liability company (collectively,
the "Seller") and Inland Real Estate Acquisitions, Inc. ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into that certain Contract For
Sale And Purchase dated October 19, 2004 and amended by "Amendment to Agreement"
dated November 16, 2004 (the "Agreement"), for the sale and purchase of the
property commonly known as University Town Center Shopping Center located in
Tuscaloosa, Alabama, as legally described by the Agreement (the "Property").
WHEREAS, Purchaser and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Inspection Period" as previously amended is hereby further
amended by deleting the date: "November 19" and inserting:
"November 23" therein.
2. The "CLOSING" as previously amended is hereby further amended by
deleting the date: "November 19" found in Line 2 and inserting:
"November 23" therein.
3. This Second Amendment may be executed in one or more
counterparts, each of which shall constitute an original and all
of which taken together shall constitute one agreement. Each
person executing this Second Amendment represents that such
person has full authority and legal power to do so and bind the
party on whose behalf he or she executed this second Amendment.
Any counterpart to this Second Amendment may be executed by
facsimile copy and shall be binding on the parties.
Except as modified by the Amendment to Agreement and the Second
Amendment to Agreement, the Agreement shall remain unmodified and in full force
and effect.
(SIGNATURE PAGE FOLLOWS)
Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX
Second Amendment to Agreement
SELLER:
UNIVERSITY RETAIL COMPANY, L.L.C.
By: /s/ [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
-----------------------------
Title: [ILLEGIBLE]
-----------------------------
UNIVERSITY RETAIL COMPANY II, L.L.C.
By: /s/ [ILLEGIBLE]
--------------------------------
Name: [ILLEGIBLE]
-----------------------------
Title: [ILLEGIBLE]
-----------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS INC,
an Illinois Corporation
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
-------------------
Title: V.P.
-------------------
2
Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX
Amendment to Agreement
AMENDMENT TO AGREEMENT
This AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into
as of the 16th day of November 2004, by and between University Retail Company,
L.L.C., a Delaware limited liability company and University Retail Company II,
L.L.C., a Delaware limited liability company (collectively, the "Seller") and
Inland Real Estate Acquisitions, Inc. ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser entered into that certain Contract For
Sale And Purchase dated October 19, 2004 (the "Agreement"), for the sale and
purchase of the property commonly known as University Town Center Shopping
Center located in Tuscaloosa, Alabama, as legally described by the Agreement
(the "Property").
WHEREAS, Purchaser and Seller have mutually agreed to amend certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Inspection Period" as defined in paragraph 5(a) of the
Agreement is hereby amended by deleting the date: "November 17"
found in Line 3 and inserting: "November 19" therein.
2. The "CLOSING" as defined in paragraph 9(a) of the Agreement is
hereby amended by deleting the date: "November 17" found in Line
2 and inserting: "November 19" therein.
3. This Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken
together shall constitute one agreement. Each person executing
Amendment represents that such person has full authority and
legal power to do so and bind the party on whose behalf he or she
executed this Amendment. Any counterpart to this Amendment may be
executed by facsimile copy and shall be binding on the parties.
Except as modified herein, the Agreement shall remain unmodified and
in full force and effect.
(SIGNATURE PAGE FOLLOWS)
Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX
Amendment to Agreement
SELLER:
UNIVERSITY RETAIL COMPANY, L.L.C.
By: /s/ Xxxx X. Deer
------------------------------
Name: Xxxx X. Deer
---------------------------
Title: Authorized Agent
---------------------------
UNIVERSITY RETAIL COMPANY II, L.L.C.
By: /s/ Xxxx X. Deer
------------------------------
Name: Xxxx X. Deer
---------------------------
Title: Authorized Agent
---------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS INC,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: V.P.
---------------------------
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CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT FOR SALE AND PURCHASE (the "CONTRACT") is made and
entered into as of the 19th day of October, 2004 (the "EFFECTIVE DATE"), between
UNIVERSITY RETAIL COMPANY, L.L.C., a Delaware limited liability company
("Retail"), and UNIVERSITY RETAIL COMPANY II, L.L.C., a Delaware limited
liability company ("Retail II") ("Sellers" or collectively, the "SELLER"), and
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (the
"PURCHASER").
1. SALE AND PURCHASE. Each Seller shall sell, and the Purchaser shall
purchase, such Seller's ground leasehold interest in certain improved land, as
well as its interest in the improvements thereon, located in Tuscaloosa,
Alabama, known as "University Town Center Shopping Center" ("Phase I," as
described on EXHIBIT "A-l") and Xxxxxxxxxx Xxxx Xxxxxx - Xxxxxx ("Xxxxx XX," as
described on EXHIBIT "A-2") (collectively, the "SHOPPING CENTER") being more
particularly described on EXHIBIT "A" attached hereto together with (a) all of
the right, title and interest of each Seller in, to and under any Leases (as
hereinafter defined), (b) all improvements located upon the Property, (c) all
personal property, if any, owned by each Seller and used solely in connection
with the Property, (d) all shrubs, trees, plants and other landscaping located
upon the Property, (e) all easements, rights of way, and other rights
appurtenant to the Property, (f) all assignable contractor and service provider
warranties and guarantees for materials and workmanship benefiting the Property,
and (g) all of the right, title and interest of Seller in and to the name
University Town Center Shopping Center (hereinafter referred to as the
"PROPERTY"). The current site plan of the Shopping Center (the "SITE PLAN") is
attached hereto as EXHIBIT "A-2."
2. PURCHASE PRICE.
(a) The purchase price to be paid by the Purchaser to the Seller for
Seller's interest in the Property (the "PURCHASE PRICE") shall be as follows:
Phase I (Shops) $ 6,229,574
Phase II (Publix) $ 4,339,520
(i) XXXXXXX MONEY. Upon the execution of this Contract by all
parties hereto, Purchaser shall deliver to Chicago Title Insurance Company,
Attention: Xxxxx Xxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
whose telephone number is (000) 000-0000, (the "ESCROW AGENT" or the "TITLE
COMPANY"), Purchaser's check in the amount of One Hundred Twenty-Five
Thousand and 00/00 Dollars ($125,000.00), as xxxxxxx money (the "XXXXXXX
MONEY"). The Escrow Agent shall deposit the Xxxxxxx Money in an account to
be held with interest subject to the terms hereof. The Xxxxxxx Money shall
be paid to Seller at Closing and credited against the Purchase Price. The
Sellers shall be entitled, in their discretion, to allocate the Xxxxxxx
Money in any manner it chooses (e.g. entire Xxxxxxx Money allocated to
Phase I or Phase II or pro rata to each phase).
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(ii) CASH TO SELLER AT CLOSING. The Purchaser shall pay the
balance of the Purchase Price (plus or minus prorations and credits as
described by this Contract to the Escrow Agent at Closing by bank wire
transfer or other method of payment acceptable to the Seller.
(b) The Seller and Purchaser acknowledge that the Purchase Price shall be
adjusted to reflect any increase in rental income between the date hereof and
Closing as a result of new leases (in addition to those listed as of the date
hereof on EXHIBIT "B" attached hereto) of space at the Shopping Center.
3. CONVEYANCE OF PROPERTY. Upon payment of the Purchase Price, Seller's
interest in the Property will be transferred to the Purchaser by Statutory
Warranty Deed of leasehold interest plus improvements (the "DEED"), subject to
the Permitted Exceptions (as hereinafter defined). The Property is being sold
AS-IS. Except as otherwise set forth herein, the Seller makes no representations
nor warranties of any kind regarding the condition of the Property. The
Purchaser has the obligation to determine any and all conditions of the Property
material to the Purchaser's decision to purchase the Property during the
Inspection Period (as hereinafter defined).
4. TITLE TO THE PROPERTY.
(a) TITLE; ADJUSTMENTS. The Purchaser shall have the opportunity to
conduct and conclude its examination of title within the Inspection Period. If
the Purchaser discovers any title matters to which it objects, the Seller shall
be furnished with a written statement thereof (along with a copy of the title
commitment and copies of all documents and instruments referenced in such title
commitment), and the Seller shall be given a reasonable time in which to correct
such defects (but no later than the Closing Date). If, for any reason (other
than a default on the part of Seller in accordance with the terms of this
Contract), the Seller is unable to deliver title in accordance with this
Contract, the Seller's liability shall be limited to the return of the Xxxxxxx
Money to the Purchaser. Alternatively, the Purchaser shall have the option of
waiving such objection and proceeding to Closing. Subject to Purchaser's right
to terminate this Contract during the Inspection Period, title to the Property
shall be subject to the following "PERMITTED EXCEPTIONS":
(i) Ad valorem property taxes to the extent that they are not
due and payable at the date of Closing;
(ii) Special taxes or assessments for any improvements not
completed as of the date of this Contract, and all
installments not due at the date of this Contract of any
special tax or assessment for completed improvements
(provided that such amounts are paid or prorated at
Closing);
(iii) Zoning and building laws, ordinances, and regulations (as
approved by Purchaser during the Inspection Period);
(iv) Existing easements for utilities, roads and highways (as
approved by
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Purchaser during the Inspection Period);
(v) Such state of facts as would be disclosed by a current,
accurate survey of the Property;
(vi) The Agreements of Lease between Retail or Retail II and
certain tenants more particularly discussed on EXHIBIT "B"
attached hereto (each a "TENANT LEASE", and collectively,
the "LEASES") (as approved by Purchaser during the
Inspection Period);
(vii) The Ground Lease between Retail and The Board of Trustees of
the University of
Alabama, a copy of which has been
delivered to the Purchaser;
(viii) The Ground Lease between Retail II and The Board of Trustees
of the University of
Alabama, a copy of which has been
delivered to the Purchaser;
(ix) Those existing exceptions to title described on EXHIBIT "C"
attached hereto (as approved by Purchaser during the
Inspection Period); and
(x) Such additional matters as may be otherwise accepted by the
Purchaser.
(b) TITLE INSURANCE AND SURVEY.
(i) TITLE COMMITMENT. The Purchaser shall be entitled to a
commitment for an ALTA leasehold interest title insurance policy to be
issued by Chicago Land Title Insurance Company, through its agent, Land
Title Company of
Alabama, Inc. (the "TITLE COMPANY"), together with
extended coverage over all standard or preprinted exceptions (provided such
exceptions are removed at Purchaser's expense) other than liens for taxes
not yet due and payable. Such commitment shall be for the amount of the
Purchase Price, and the cost for such title commitment and any policy shall
be paid by the Purchaser.
(ii) TITLE EXCEPTIONS. The title commitment shall be dated on or
after the date of this Contract. It shall show leasehold title to the
Property to be vested in Seller, as ground lessee, as of that date, subject
only to the Permitted Exceptions and title exceptions pertaining to liens
or encumbrances of an ascertainable amount which shall be removed by the
payment of money at the time of Closing. The policy or commitment shall be
conclusive evidence of good title as therein shown as to all matters
insured or to be insured by the policy, subject only to the exceptions as
therein stated.
(iii) SURVEY. If the Purchaser requires a survey of the Property
(the "SURVEY"), then the Purchaser must obtain such Survey, at its expense,
during the Inspection Period. Upon the full execution of this Contract,
Seller agrees to furnish Purchaser with copies of any surveys of the
Property within its possession or control.
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5. INSPECTION PERIOD.
(a) INSPECTION. The Purchaser, or its authorized agents, shall have the
right to inspect the Property at any reasonable time for a period beginning on
the Effective Date and ending November 17, 2004 (the "INSPECTION PERIOD"). The
Purchaser agrees to provide the Seller with twenty-four (24) hours advance
notification of its intention to conduct any such inspection at the Property.
The Purchaser shall have the privilege of going upon the Property, at the
Purchaser's sole cost and expense, in order:
(i) to determine whether the results of reports from engineers,
geologists, hydrologists, or any other professionals
selected by the Purchaser, are reasonably acceptable to the
Purchaser;
(ii) to review matters related to title and Survey;
(iii) to satisfy any and all other conditions precedent to the
Purchaser's obligations to purchase the Property; and
(iv) to review all matters described upon Purchaser's due
diligence checklist, attached hereto as EXHIBIT "D", and
made a part hereof, to the extent such items are available
and applicable to the Property.
(b) INDEMNIFICATION. In consideration of the Purchaser's right to inspect
the Property as described herein (including inspections, examinations and
surveys), the Purchaser shall, and does hereby covenant, indemnify, defend and
hold Retail, with respect to the Phase I, and Retail II, with respect to Phase
II, their members, officers, employees and agents harmless from any actions,
suits, liens, claims, damages, expenses, losses, and any liability arising out
of any such entry by the Purchaser or its appointed agents or independent
contractors or any act performed in exercising of such privileges by the
Purchaser (including, without limitation, any rights or claims of materialmen or
mechanics liens on the Property), which covenant, indemnity, defense and hold
harmless agreement shall survive the Inspection Period, the termination of this
Contract, and the Closing.
(c) DOCUMENTS. Each Seller shall make available to the Purchaser for its
inspection and copying, all leases, rent rolls, surveys, title policies, and
engineering reports related to the Property.
(d) CONDITIONS OF TERMINATION. If Purchaser, in its sole and absolute
discretion, is dissatisfied with the condition of the Leases, title or any
matter disclosed in the Survey, or with any other matter pertaining to the
Property which Purchaser discovers during its due diligence investigations, or
for no reason, Purchaser shall thereupon have the right, prior to the expiration
of the Inspection Period, to notify Escrow Agent and Seller of its election to
terminate this Contract and the Xxxxxxx Money shall immediately be returned to
Purchaser by Escrow Agent, and no party shall have any obligation hereunder,
except for those provisions hereof which expressly provide for survival of
termination. In the event that the Purchaser does not exercise such option to
cancel prior to the expiration of the Inspection Period, the Xxxxxxx Money shall
4
become non-refundable (except in the event of a failure by Seller to satisfy the
conditions to Closing set forth in SECTION 8(b) hereof or elsewhere in the
Agreement or a default by Seller hereunder).
6. CONDITION OF THE PROPERTY; SELLER REPRESENTATIONS AND WARRANTIES.
(a) "AS IS" SALE. The parties expressly agree that, except as otherwise
expressly set forth herein, the Property is sold on an "AS-IS" basis. Neither
Retail nor Retail II makes any warranties or representations, either expressed
or implied, as to the state of the Property, the area, condition, quality,
quantity, character, size or description or suitability or fitness for any use,
whether existing or contemplated, matters of zoning or survey, or in any other
respect, and makes no agreement as to the condition of title except as expressly
provided herein. The Purchaser waives all rights conferred by statute or other
law to make any claim against the Seller before or after the Closing with
respect to any matter arising out of or in connection with any of the foregoing.
(b) SELLER REPRESENTATIONS AND COVENANTS. As of the date hereof,
(i) Retail and Retail II, to their actual knowledge, are not aware of and have
received no building code violation notices with respect to Phase I or Phase II,
respectively (other than notices of violations that are not material or which
have been removed or corrected or are the responsibility of the applicable
tenant); (ii) Retail and Retail II, to their actual knowledge, are not aware of
and have received no notices of any action or governmental proceeding in eminent
domain, or for a zoning change, which would have a material adverse effect on
Phase I or Phase II, respectively; (iii) Retail, with respect to Phase I, and
Retail II, with respect to Phase II, have the capacity and requisite authority
to enter into and carry out this Contract and the transactions contemplated
hereby; and (iv) to the best of Retail and Retail II's knowledge, there is no
suit, action or arbitration, or legal or other proceeding or governmental
investigation, pending which materially and adversely affects Phase I or Phase
II, respectively. As used herein, "SELLER'S ACTUAL KNOWLEDGE" or words of like
effect, when used to qualify a representation, warranty or other statement,
shall mean the actual knowledge of Xxxxx X. Xxxxxxxxxxx. The foregoing
representations may be revised and updated by either Retail or Retail II at any
time prior to the expiration of the Inspection Period.
7. DAMAGES AND/OR CONDEMNATION PENDING CLOSING.
(a) DAMAGE. If, at any time after the Effective Date and before the
Closing, all or any portion of the Property is damaged, destroyed or rendered
inoperative by fire, flood, natural elements or other causes (collectively, the
"DAMAGE"), then the following shall apply:
(i) If the Damage is not Material (hereinafter defined),
Purchaser shall proceed to close and purchase the Property as diminished by
such Damage, subject to the right of Purchaser set forth in SECTION
7(a)(iii) below.
(ii) If the Damage is Material, then Purchaser, at its sole
option, may elect either (A) to terminate this Contract by written notice
to Seller given at or prior to the Closing, whereupon the Title Company and
Seller shall immediately return the Xxxxxxx
5
Money and all accrued interest thereon to Purchaser and, upon Purchaser's
receipt thereof, neither party hereto shall have any further rights
against, or obligations to, the other under this Agreement; or (B) to agree
to close subject to the right of Purchaser set forth in SECTION 7(a)(iii)
below.
(iii) If the Damage is covered by insurance, then the Purchaser
shall have the right to elect to close the purchase of the Property in its
condition (with respect to the Damage covered by insurance) as of the date
of Closing and to receive a credit against the Purchase Price in the amount
of any deductible, and take an assignment of the insurance proceeds, in
which event the insured Seller shall assign such insurance proceeds to the
Purchaser, remit to Purchaser any insurance proceeds received by such
Seller and shall permit Purchaser to conduct any remaining settlement or
other negotiations with the insurer as to the amount of proceeds payable on
account of the Damage.
(iv) For the purposes of this SECTION 7(a), Damage shall be
deemed to be "MATERIAL" (A) if the cost of repairing the Damage equals or
exceeds Two Hundred Thousand and No/100 Dollars ($200,000.00), (B) if the
Damage results in the termination of any Tenant Lease in excess of five
thousand (5,000) rentable square feet or would entitle the tenant
thereunder to terminate its Tenant Lease (unless such right to terminate is
waived in writing by such tenant), (C) if any Property parking is reduced
beyond the parking required by law or pursuant to the Leases, or (D) if any
point of Property ingress or egress is permanently and materially adversely
affected. The cost of repairing the Damage shall be determined in the
following manner: Within ten (10) days after the Damage occurs, each party
shall designate a construction firm to act on its behalf, and the firms
designated shall promptly consult with each other in an attempt to mutually
agree upon the cost of repairing the Damage. If the firms cannot agree on
the cost within the ten (10) day period after they have both been
designated, they shall, within five (5) days after such ten (10) day
period, designate a third construction firm, which shall be instructed to
determine the cost of repairing the Damage within ten (10) days after its
designation. The cost of repairing the Damage as determined by the third
construction firm shall be conclusive and binding upon the parties.
(b) CONDEMNATION. If any governmental or other entity with condemnation
authority institutes an eminent domain proceeding against the Property before
the Closing, Purchaser may terminate this Contract by giving written notice to
the Seller if the Purchaser reasonably determines that the balance of the
Property remaining after the taking contemplated by the proceeding would not be
suitable for Purchaser's intended use. In the event of such termination, the
Xxxxxxx Money will be returned to the Purchaser. If the Purchaser does not
terminate, or is not entitled to terminate this Contract, Retail and Retail II
shall assign to the Purchaser, at Closing, all of it's interest in the
proceeding and in any resulting award.
8. CONDITIONS PRECEDENT.
(a) OF SELLER. The obligation of Seller to consummate the transactions
contemplated by this Contract is expressly subject to the satisfaction, on or
prior to Closing, of all of the
6
following conditions, compliance with which or the occurrence of which may be
waived in whole or in part by Seller in writing:
(i) The purchase by Purchaser of the entire Shopping Center,
including both Phase 1 and Phase II; and
(ii) The Purchaser shall have paid to the Seller through the
Escrow Agent in cash or other immediately available funds
that portion of the Purchase Price required to be paid at
Closing.
(iii) The University of
Alabama shall have delivered to Seller
written evidence of (i) its waiver of its right of first
refusal or (ii) its failure or election not to exercise its
right of first refusal regarding Phase II of the Shopping
Center within the required time period, which written
evidence is in form and substance satisfactory to the Title
Company and Purchaser (the "University Waiver").
(b) OF PURCHASER. The obligation of Purchaser to consummate the
transactions contemplated by this Contract is expressly subject to the
satisfaction, on or prior to Closing, of all of the following conditions,
compliance with which or the occurrence of which may be waived in whole or in
part by Purchaser in writing:
(i) The Title Company's issuing or committing to issue the title
policy insuring that title to the leasehold interest in the
Property is vested in Purchaser;
(ii) The completeness, truth and accuracy in all material
respects, of (A) the rent roll delivered by Retail to
Purchaser, and any certifications, schedules, covenants and
statements prepared and executed by Retail as part of the
due diligence deliveries, (B) the Leases delivered by Seller
to Purchaser, (C) the representations and covenants of both
Retail and Retail II, as of Closing and as the same may be
updated from time to time by written notice to the Purchaser
prior to the expiration of the Inspection Period;
(iii) At the Closing, both Retail and Retail II shall deliver to
Purchaser a certificate that shall confirm the truth and
accuracy in all material respects, as of Closing, of their
representations contained in this Contract;
(iv) The satisfaction of any other condition described by this
Contract including the performance in all material respects
by Seller of all its obligations hereunder that are
conditions to Closing;
(v) There shall not be a material default by either Retail or
Retail II, as landlord, or any tenant under a Lease, in the
performance of the respective
7
obligations thereunder that would have a material adverse
effect on the Shopping Center; and
(vi) On or prior to ten (10) days before the date of Closing
under this Contract, Purchaser shall have received: (A) from
Publix (the "ANCHOR"'); and (B) from tenants leasing ninety
percent (90%) of the gross leasable area of the entire
Shopping Center, an estoppel certificate in the form
attached to such tenant's lease or, if none, substantially
in the form of EXHIBIT "E", attached hereto and by this
reference made a part hereof, with non-material changes
thereto, or in another form reasonably acceptable to
Purchaser; and (C) an estoppel certificate, substantially in
the form of EXHIBIT "E" from Retail with respect to the
tenants that failed to deliver estoppels in accordance with
(B) above (notwithstanding the foregoing, the Anchor and
national tenants may deliver their typical form of
estoppel).
9. CLOSING AND POSSESSION.
(a) CLOSING. The transaction contemplated by this Contract shall be
closed (the "CLOSING") on the later of (i) November 17, 2004 or (ii) Seller's
receipt of the University Waiver. The Closing shall be held at the office of the
Title Company through a so-called New York style closing, or at such other place
as the parties may mutually agree.
(b) DELIVERIES.
(i) BY SELLER. At the Closing, each Seller, as applicable, shall
deliver or cause to be delivered to the Purchaser the following
documents and instruments:
(A) An Assignment and Assumption of Ground Lease, with respect
to each of Phase I and Phase II of leasehold interest
acceptable to the Purchaser and the Title Company
transferring each Seller's interest in the Property and any
improvements, which Deed shall be duly executed by the
applicable Seller and acknowledged;
(B) A Xxxx of Sale, with respect to each of Phase I and Phase II
acceptable to the Purchaser and the Title Company
transferring such Seller's interest in the Property and any
improvements, which xxxx of sale shall be duly executed by
such Seller and acknowledged;
(C) A lien waiver affidavit executed by or on behalf of Retail
or Retail II and dated as of the Closing Date, acknowledging
that no bills for labor and/or materials furnished to Phase
I or Phase II, respectively, are due and owing to any
parties for which a mechanics' lien can be claimed;
8
(D) Assignments of Leases for each Tenant Lease;
(E) An Assignment of Warranties for all assignable equipment and
construction warranties; and
(F) Such other documents as may be reasonably required by the
Title Company.
(ii) BY PURCHASER. At the Closing, the Purchaser shall deliver to the
Seller the following:
(A) Cash or wired funds for the net amount due Seller on
Closing;
(B) Assignment and Assumption of Leases for each Tenant Lease;
and
(C) An Assignment and Assumption of each Ground Lease.
(c) COSTS. The costs for the transaction shall be borne and paid by the
parties as follows:
(i) The Seller shall pay for the Assignment of Ground Lease and the
Xxxx of Sale preparation, recordation costs for mortgage
cancellations or releases, and the Seller's attorney's fees; and
(ii) Purchaser shall pay for all recording fees and intangible taxes
related to this transaction, its inspection costs, and the costs
of all charges related to the survey, the title commitment and
issuance of the title policy.
(d) POSSESSION AT CLOSING. Possession of the Property shall be delivered
to the Purchaser at Closing.
10. PRORATIONS. Ad valorem real estate taxes, rents, reimbursements, security
deposits under Leases, and all other similar items customarily prorated and
adjusted in connection with the closing of real estate transactions, unless
otherwise stated, shall be prorated and apportioned between the parties as of
midnight of the day before the Closing.
11. ASSIGNMENT Neither this Contract nor any interest of the Purchaser
hereunder may be assigned in whole or in part without the Seller's prior written
consent. Notwithstanding the foregoing, the Purchaser may, without the Seller's
prior written consent, transfer and assign the Purchaser's rights hereunder to
an affiliated corporation, general partnership, limited partnership, joint
venture, or other legal entity; provided that the Purchaser shall remain
primarily liable for its obligations hereunder through the Closing.
12. BROKERS; SALES COMMISION; TENANT ALLOWANCES. Each of the parties
represents to the others that it has not incurred and will not incur any
liability for brokerage fees or agent commissions in connection with this
Contract and Retail, with respect to Phase I,
9
Retail II, with respect to Phase II, and Purchaser each agree to indemnify and
hold the others harmless from and against any and all claims or demands with
respect to any brokerage fees or agents' commissions or other compensation
asserted by any person, firm, or corporation in connection with this Contract or
the transactions contemplated hereby, insofar as any such claim is based upon
any conversation or contract with Retail, with respect to Phase I, Retail II,
with respect to Phase II, or Purchaser. Seller agrees that all amounts due for
Lease Broker's fees and tenant improvement allowances owed pursuant to leases in
effect on the Closing Date shall be the responsibility of Seller and Seller
hereby indemnifies and agrees to hold Purchaser harmless from all such amounts.
13. TIME. Time is of the essence.
14. NOTICES. All notices to be given by either party to the other pursuant to
the terms and provisions of this Contract shall be in writing and delivered to
the party receiving notice, by hand delivery, by national overnight courier, or
by facsimile transmission, at the following address for each party, to-wit:
To Retail: To Purchaser:
University Retail Company, L.L.C. Inland Real Estate Acquisitions, Inc.
c/o Bayer Properties Incorporated 0000 Xxxx Xxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxx, Xxxxxxx 00000
Attention: General Counsel Attention: Mr. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
To Retail II: with a copy to:
University Retail Company II, L.L.C. Xx. Xxxxxx Xxxx
c/o Bayer Properties Incorporated The Inland Real Estate Group, Inc.
0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel Facsimile: (000) 000-0000 or (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xx. Xxxxxx X. Xxxxxxxxx
Baker, Donelson, Bearman, Xxxxxxxx &
Xxxxxxxxx, P.C.
000 Xxxxx 00xx Xxxxxx
Xxxxx 0000, XxxxxXxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000
15. DEFERRED EXCHANGE. The Purchaser agrees to reasonably cooperate fully with
Retail, Retail II, or both or either in any efforts to effect a like kind
exchange for federal income tax purposes in connection with the transaction
contemplated in this Contract, provided, however, that (a) the Purchaser shall
not be required to take title to any property other than the
10
Property, (b) the Purchaser shall not incur or be responsible for any expenses
related to the like kind exchange including, without limitation, any expense of
an audit of the transaction and the production of documents in connection
therewith, (c) Retail or Retail II shall be permitted to assign its rights and
interest under this Contract without consent of, but with prior notice to the
Purchaser, to a "QUALIFIED INTERMEDIARY", as such term is defined in the
Treasury Regulations under Section 1031 of the Internal Revenue Code of 1986, as
amended, for the purpose of effecting a like kind exchange, provided that it
shall not be relieved of any obligation created by this Contract after such
assignment, and (d) there shall be no delay in Closing.
16. GOVERNING LAW. This Contract shall be governed by, and construed in
accordance with, the laws of the State of
Alabama.
17. HEADINGS AND CONSTRUCTION. Headings in this Contract are for convenience
only and shall not be used to interpret or construe its provisions. This
Contract has been drafted by counsel for the Seller as a convenience to the
parties only and shall not, by reason of such action, be construed against the
Seller or any other party. Purchaser acknowledges and agrees that it has had
full opportunity to review this Contract and has had access to counsel of its
choice to the extent Purchaser deemed necessary in order to interpret the legal
effect hereof.
18. DEFAULT: LIMITATION ON REMEDIES.
(a) PURCHASER'S REMEDIES ON SELLER'S DEFAULT. In the event that the sale
and purchase of each Seller's interest in the Property is not consummated
because such Seller is unable to transfer the Property in accordance with the
terms hereof, then at the Purchaser's option, the Seller shall cause all Xxxxxxx
Money paid by the Purchaser at the time of the execution of this Contract to be
immediately refunded to Purchaser, and this Contract shall be terminated. In the
event of a willful default on the part of either Retail or Retail II in the
performance of its obligations under this Contract, Purchaser shall have the
option of either terminating the Contract and receiving an immediate return of
the Xxxxxxx Money, together with payment by the defaulting party of Purchaser's
reasonable costs incurred during its due diligence investigations, or bringing
an action for specific performance (including reasonable attorneys' fees and
actual out-of-pocket costs of suit).
(b) SELLER'S REMEDIES ON PURCHASER'S DEFAULT. In the event that the sale
and purchase of each Seller's interest in the Property is not consummated
because of the Purchaser's default, then both Retail and Retail II shall be
entitled, at their option, to specific performance or to receive all Xxxxxxx
Money paid by the Purchaser pursuant to this Contract as full liquidated damages
for such default of the Purchaser, such monetary damages to be split evenly
between Retail and Retail II. The parties acknowledge that it is impossible to
estimate more precisely the damages to be suffered by the Seller upon the
Purchaser's default, and that the retention of the Xxxxxxx Money is intended not
as penalty, but as fully liquidated damages. In the event the purchase and sale
contemplated in this Contract is not consummated due to the Purchaser's default,
the Purchaser hereby waives and releases any right to seek recovery (and hereby
covenants that it shall not seek recovery) of the Xxxxxxx Money or any part
thereof.
11
19. ENTIRE AGREEMENT; BINDING EFFECT. This Contract constitutes the sole and
entire agreement between the parties hereto, and no modification of this
Contract shall be binding upon any party unless in writing and signed by each of
the parties. No representations, promises or inducements shall be binding upon
any party except as herein specifically set forth.
20. AUDIT LETTER. Each Seller agrees to deliver to the Purchaser a letter in
the form of Exhibit F attached hereto on the earlier of (i) two (2) business
days following Purchaser's written request or (ii) the Closing (if requested by
Purchaser at Closing).
21. MUTLIPLE COUNTERPARTS. This Contract may be executed in one of more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
12
IN WITNESS WHEREOF, the parties have executed this Contract as of the day
and year first written above.
SELLER:
UNIVERSITY RETAIL COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------------
Name: XXXXX X. XXXXXXXXXXX
------------------------------
Its: Authorized Agent
------------------------------
UNIVERSITY RETAIL COMPANY II, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------------
Name: XXXXX XXXXXXXXXXX
------------------------------
Its: Authorized Agent
------------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
---------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Its: V.P.
------------------------------
13
STATE OF Georgia )
)
Xxxx COUNTY )
I, the undersigned authority, a Notary Public in and for said County, in
said State, hereby certify that Xxxxx X. Xxxxxxx whose name as ______________ of
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, is signed to the
foregoing
Contract for Sale and Purchase and who is known to me, acknowledged
before me on this day that, being informed of the contents of said Contract,
he/she, in his/her capacity as such _________ and with full authority, executed
the same voluntarily for and as the act of said corporation on the day the same
bears date.
Given under my hand and seal this the 19th day of October, 2004.
/s/ Nacrisha X Xxxx
-------------------------------
Notary Public
[NOTARIAL SEAL] My Commission Expires: 4-15-08
NACRISHA X. XXXX
COMMISSION EXPIRES
NOTARY
PUBLIC
APRIL 18, 2008
XXXX COUNTY GEORGIA
15
EXHIBIT "A"
PHASE I
Lot 5 and a part of Lots 4, 6, 7 and 8 and a vacated Alley of Xxxxxx Circle as
recorded in the Probate Office of Tuscaloosa County,
Alabama in Plat Book 3 at
Page 16 and a part of Xxxx 0, 0, 0 xxx 00 xx x Xxx xx Xxxx belonging to the
University of
Alabama as recorded in the Probate Office of Tuscaloosa County,
Alabama in Plat Book 1 at Page 97 and being more particularly described as
follows:
As a starting point, start at the Southwest corner of Xxx 0 Xxxxxx Xxxxxx as
recorded in the Probate Office of Tuscaloosa County, Alabama in Plat Book 3 at
Page 16, said point lying on the north Right of Way margin of University
Boulevard; thence run South 77 degrees, 22 minutes East along the South boundary
of Xxxxxx Circle and the North Right-of-way margin of University Boulevard for a
distance of 150.10 feet to the POINT OF BEGINNING; thence continue South 77
degrees, 22 minutes East along the North Right-of-way margin of University
Boulevard for a distance of 299.53 feet to a point; thence with an interior
angle of 85 degrees, 23 minutes run North 8 degrees, 01 minute East for a
distance of 352.67 feet to a point on the South Right-of-way margin of Fourth
Street, a 60 foot Right-of-way, thence with an interior angle of 88 degrees, 05
minutes, run North 83 degrees, 54 minutes West along the South Right-of-way
margin of Fourth Street for a distance of 197.13 feet to a point; thence with an
interior angle of 88 degrees, 25 minutes run South 4 degrees, 31 minutes West
for a distance of 11.83 feet to a point; thence with an interior angle of 245
degrees, 15 minutes, run South 69 degrees, 46 minutes West for a distance of
31.26 feet to a point on the curving East Right-of-way margin of Campus Drive,
said curve being concave to the Southeast having radius of 1105,92 feet; thence
with an interior angle of 134 degrees, 27 minutes, run South 24 degrees, 13
minutes West along the curving East Right-of-way margin of Campus Drive for an
arc distance of 192.99 feet (192.75 ch) to a point; thence with an interior
angle of 185 degrees, 32 minutes, run South 29 degrees, 45 minutes West along
the East Right-of-way margin of Campus Drive for a distance of 49.56 feet to a
point; thence with an interior angle of 165 degrees, 40 minutes, run South 15
degrees, 25 minutes West along the East boundary of Campus Drive for a distance
of 48.56 feet to a point; thence with an interior angle of 159 degrees, 38
minutes, run South 4 degrees, 57 minutes East along the East Right-of-way margin
of Campus Drive for a distance of 16.79 feet to the POINT OF BEGINNING, forming
an interior angle of closure of 107 degrees, 35 minutes.
PHASE II
A parcel of land located in the Northeast 1/4 of the Northwest 1/4 of Section
23, Township 21 South, Range 10 West in the City of Tuscaloosa, Tuscaloosa
County, Alabama and being more particularly described as follows:
Commence at the Northwest corner of Lot 14 of Xxxxxx Circle Addition as recorded
in Plat Book 3, Page 16 in the Probate Office of Tuscaloosa County, Alabama with
said corner being also known as the Point of Beginning; thence turn a bearing
South 8l DEG.31'21" East and run Easterly for a distance of 285.57 feet to the
beginning of a curve to the right, said curve having a
16
radius of 7.50 feet, a chord distance of 10.46 feet, and a chord bearing of
South 37 DEG. 19' 17" East; thence run along the arc of said curve for a
distance of 11.57 feet; thence turn a bearing of North 6 DEG.52'46" East and run
in a Northerly direction for a distance of 7.29 feet; thence turn a bearing of
South 81 DEG.31'2l" and run in an Easterly direction for a distance of 10.00
feet; thence turn a bearing of North 6 DEG.52'46" East and run in a Northerly
direction for a distance of 10.00 feet; thence turn a bearing South 81
DEG.31'21" East and run in an Easterly direction for a distance of 95.15 feet;
thence turn a bearing South 33 DEG.16'64" "West and run in a Southwesterly
direction for a distance of 33,93 feet; thence turn a bearing South 30
DEG.30'56" West and run in a Southwesterly direction for a distance of 95.00
feet; thence continue on last said bearing for a distance of 15.01 feet to the
beginning of a curve to the left, said curve having a radius of 1185.92 feet; a
central angle of 2 DEG.44'58", a chord length of 56.90 feet, and a chord bearing
of South 29 DEG.08'27" West; thence run along the arc of said curve for a
distance of 56.91 feet to the beginning of a curve to the left, said curve
having a radius of 1185.92 feet; a central angle of 9 DEG. 15'00", a chord
length of 191.25 feet, and a chord bearing of South 29 DEG.08'28" West; thence
run along the arc of said curve for a distance of 191.46 feet; thence turn a
bearing of South 11 DEG.44'10" West and run in a Southerly direction for a
distance of 51.87 feet to the beginning of a curve to the left, said curve
having a radius of 1180.92 feet, a central angle of 2 DEG.30'00", a chord length
of 51.52 feet, and a chord bearing of South 14 DEG.45'58" West; thence run along
the arc of said curve for a distance of 51.53 feet; thence turn a bearing of
South 28 DEG.33'54" West and run in a Southerly direction for a distance of
18.71 feet; thence turn a bearing of North 78 DEG.05'00" West and run in a
Westerly direction for a distance of 74.92 feet; thence turn a bearing of North
7 DEG.44'16" East and run in a Northerly direction for a distance of 137.89 feet
to the point of beginning of a curve to the left, said curve having a radius of
338.30 feet, a central angle of 22 DEG.57'12", a chord distance of 134.62 feet,
and a chord bearing of Xxxxx 00 XXX.00'0X" Xxxx; thence run along the arc of
said curve for a distance of 135.53 feet; thence turn a bearing of South 74
DEG.47'04" West and run in a Westerly direction for a distance of 40.00 feet;
thence turn a bearing of North 79 DEG.39'25" West and run in a Westerly
direction for a distance of 118.48 feet; thence turn a bearing of North 8
DEG.50'21" East and run in a Northerly direction for a distance of 219.89 feet
to the Point of Beginning. Said parcel contains 103,891.03 square feet (2.39
acres) more or less.
The above described property is also described as follows:
STATE OF ALABAMA
TUSCALOOSA COUNTY
A parcel of land located in the northeast quarter of the northwest quarter of
Section 23, Township 21 South, Range 10 West, being all of Lots 2, 11, 12, 13,
14, 15 and Xxx 00, xxxx xx Xxxx 0, 0, 0, 0, 00, 16, 18, and 19 and a vacated
portion of Xxxxxx Circle Drive and three vacated alleys, all according to the
Map of Xxxxxx Circle Addition to Tuscaloosa, Alabama as recorded in the Probate
Office of Tuscaloosa County, Alabama in Plat Book 3 at Page 16, said parcel
being more particularly described as follows:
COMMENCE at a 2" pipe found at the southwest corner of Lot 17 of said Xxxxxx
Circle Addition, said corner being on the east right-of-way of Grace Street, a
30-foot wide right-of-way; thence run North 08 degrees, 38 minutes, 39 seconds
East along said east right-of-way 82.97 feet to a 1/2" pipe found at the POINT
OF BEGINNING; thence run North 08 degrees, 50 minutes,
17
21 seconds East along said East right-of-way 219.89 feet to a 1/2" capped rebar
set at the northwest corner of Lot 14 of said Xxxxxx Circle Addition; thence run
South 81 degrees, 31 minutes, 21 seconds East along the north boundary of Lots
14, 13, 12 and 11, and along the south margin of a 10-foot wide alley, 285.57
feet to a capped rebar set; thence run southeastwardly along a curve to the
right, said curve having a radius of 7.50 feet, a chord distance of 10.46 feet
to a capped rebar set on the east boundary of said Lot 11, said chord bearing
South 37 degrees, 19 minutes, 17 seconds East; thence run North 6 degrees, 52
minutes, 46 seconds East 7.29 feet to a capped rebar set; thence run South 81
degrees, 31 minutes, 21 seconds East 10.00 feet to a capped rebar set on the
west boundary of Lot 10 of said Xxxxxx Circle Addition; thence run North 6
degrees, 52 minutes, 46 seconds East along said west boundary 10.00 feet to a
capped rebar set at the northwest corner of said Lot 10; thence run South 81
degrees, 31 minutes, 21 seconds East 95.15 feet to a 1/2" capped rebar set on
the west right-of-way of Campus Drive; thence run South 33 degrees, 16 minutes,
54 seconds West along said right-of-way 33.93 feet to a concrete monument found;
thence run South 30 degrees, 30 minutes, 56 seconds West along said right-of-way
110.01 feet to a capped rebar set; thence continue southwestwardly along said
right-of-way, said right-of-way curving to the left and having a radius of
1185.92 feet, a chord distance of 247.91 feet to a concrete monument found, said
chord bearing South 24 degrees, 30 minutes, 57 seconds West; thence run South 11
degrees, 44 minutes, 10 seconds West along said right-of-way 51.87 feet to a
concrete monument found, said right-of-way being measured 35 feet from
centerline at this point; thence run southwestwardly along said right-of-way,
said right-of-way curving to the left and having a radius of 1180.92 feet, a
chord distance of 51.52 feet to a PK Nail Set in a brick paver, said chord
bearing South 14 degrees, 45 minutes, 58 seconds West; thence run South 28
degrees, 33 minutes, 54 seconds West along a right-of-way flair 18.71 feet to a
PK Nail set in a brick paver on the north right-of-way of University Boulevard;
thence run North 78 degrees, 05 minutes, 00 seconds West along said north
right-of-way 74.92 feet to a 1/2" capped rebar set at the southwest corner of
said Lot 2, said corner being at the intersection of the north right-of-way of
University Blvd. and the east right-of-way of Xxxxxx Circle Drive, a 40-foot
wide right-of-way; thence run North 7 degrees, 44 minutes, 16 seconds East and
along said east right-of-way of Xxxxxx Circle Drive 137.89 feet to a PK Nail set
in concrete; thence run northwestwardly along said right-of-way, said
right-of-way curving to the left and having a radius of 338.30 feet, a chord
distance of 141.81 feet to a 1/2" capped rebar set, said chord bearing North 4
degrees, 21 minutes, 40 seconds West; thence run South 74 degrees, 47 minutes,
04 seconds West 40.00 feet to a capped rebar set on the west right-of-way of
Xxxxxx Circle Drive; thence run North 79 degrees, 39 minutes, 25 seconds West
118.48 feet to the POINT OF BEGINNING.
18
EXHIBIT "A-2"
SITE PLAN
[GRAPHIC] PLEASE NOTE THAT AVAILABLE SPACE IS LEASED.
EXHIBIT "B"
LEASES
PRINT DATE: 10/6/2004 2:10.55 PM
RENT ROLL REPORT
FOR UNIVERSITY RETAIL COMPANY, LLC
UNIT RENT PER LEASE
REFERENCE OCCUPANT MONTHLY SQUARE SQUARE STARTING LEASE EXP DEPOSITS
NUMBER NAME RENT FEET FEET DATE DATE HELD
-------------------------------------------------------------------------------------------------------------
190-A1 COLD STONE CREAMERY 3,283.25 1713 23.00/yr 1/31/2003 1/31/2008 0.00
LEASING CO 1.92/mth
190-A2 PRIVATE GALLERY, INC. 3.764.33 1964 23.00/yr 9/05/2003 9/30/2008 0.00
l.92/mth
190-A4 HEADSTART FAMILY HAIR 2,846.25 1485 23.00/Yr 2/12/2003 2/29/2008 0.00
SALONS 1.92/mth
190-A5 NAUGHTY DONKEY 3,731.75 1947 23.00/yr 2/15/2003 2/29/2008 0.00
ENTERPRISES, LLC 1.92/mth
190-ATM SOUTHTRUST BANK (ATM) 650.00 42 185.71/yr 4/07/2003 4/30/2008 0.00
l5.48/mth
190-B1 ZT OF LOUISVILLE, LLC 5,061.92 2641 23.00/yr 11/14/2002 11/30/2012 0.00
1.92/mth
000-X0 XXX XXXXXXX 3,842.75 2427 19.00/yr 12/12/2002 12/31/2012 0.00
1.58/mth
190-B4 XXXXX XXXX 2,294.25 1449 19.00/yr 2/09/2004 2/28/2009 2,753.10
l.58/mth
190-B5 XXXX & COMPANY INC, 2,239.25 1378 19.50/yr 3/14/2004 3/31/2009 5,362.72
- The Buzz 1.63/mth
190-B6 M.G.A.,INC.(MOVIE 3,415.58 2411 17.00/yr 10/09/2002 9/30/2007 0.00
GALLERY) 1.42/mth
190-B7 M.G.A, INC.(SUN & SOUL) 5,192.08 3665 17.00/yr 10/01/2002 9/30/2007 0.00
1.42/mth
190-B8 XXXXX XXXXX-University 4,784.83 3022 19.00/yr 8/01/2004 7/31/2009 9,569.66
Wireles 1.58/mth
190-B8A LMRB RESTAURANTS, INC. 2,892.75 1827 19.00/yr 1/13/2003 1/31/2008 0.00
1.58/mth
190-B9 GRAHAMMER, INC. (MAIL 3,718.50 2479 18.00/yr 12/17/2002 12/31/2007 0.00
BOXES) 1.50/mth
190-XXXXXX VACANT 650.00 0 0.00/yr 0.00
0.00/mth
2
EXHIBIT "C"
TITLE EXCEPTIONS
1. Taxes and assessments for the year 2005 and subsequent years, which are not
yet due and payable.
2. Agreement with the City of Tuscaloosa as recorded in Book 1235, page 210.
3. Title to all minerals within and underlying the premises, together with all
mining rights and other rights, privileges and immunities relating thereto.
4. Any matters that would be shown on a current survey.
5. Declaration of restrictive covenants as recorded in Inst. No. 2000/31.
6. Subject to terms and conditions of lease by and between The Board of
Trustees of the University of Alabama and Bayer Construction, L.L.C, dated
August 24, 1999 referred to in memorandum of ground lease recorded in Inst.
No. 2000/6673 in the Probate Office of Tuscaloosa County Alabama as
assigned and assumed in Inst. No. 2000-18771.
7. Right-of-way granted to Alabama Power Company recorded in Inst. No.
2001-6721.
8. Covenants and conditions contained in grant of easements recorded in Deed
Book 2001, Page 2864.
9. Double garage situated on West 1/2 of Property as recorded in Book 1085,
Page 378.
10. Easements reserved in Declaration of Vacation recorded in Deed Book 1142,
Page 497 and Deed Book 1217, Page 182.
11. Easement to University Retail Company recorded in Instrument No. 2001
-2864.
12. Public right of way and utility easement as recorded in Deed Book 1217,
Page 189.
13. Memorandum of Lease recorded in Deed Book 2003, Page 11782.
14. First Amendment to Memorandum of Lease recorded in Deed Book 2003, Page
19744.
3
EXHIBIT "D"
INLAND PROPERTY MANAGEMENT
DUE DILIGENCE CHECKLIST
A. THE FOLLOWING INFORMATION IS TO BE PROVIDED FOR MANAGEMENT REVIEW.
I. 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 on percentage rent only or percentage
rent in lieu basis _____________________
7. List of specialty license Contracts _____________________
8. Prior five full years operating statements _____________________
9. Prior year's general ledger statement _____________________
10. Last three years' 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 in previous five calendar year period by
tenant _____________________
14. Physical occupancy for the last five calendar years prior to
purchase _____________________
15. Receivables status/aging report _____________________
16. Tenant sales reports for last three years _____________________
17. Tenant financial statements _____________________
18. Lease expirations - next three years _____________________
4
I. Comments
-----------------------------------------------------------------------------------------------------
a. Status of expirations, with kickouts, with respect to
renewal possibilities _____________________
19. Description and breakdown of Promotional Income and Marketing
Fund _____________________
20. Leasing Plan _____________________
I. Comments
-----------------------------------------------------------------------------------------------------
B. EXPENSE INFORMATION
1. Twelve months of consecutive utility bills
a. Water _____________________
b. Gas _____________________
c. Electric _____________________
d. Telephone and dedicated lines _____________________
2. Copies of all service Contracts, contracts or any leases that
encumber the property
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 _____________________
1. 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 _____________________
b. Five-year capital expenditure forecast _____________________
c. Assignable warranties _____________________
C. ENVIRONMENTAL REPORTS
1. Phase I _____________________
2. Other _____________________
5
I. Comments
-----------------------------------------------------------------------------------------------------
D. STAFFING
1. Itemized by position and salary _____________________
E. SITE INSPECTIONS
1. Inspection report _____________________
2. Photo attached _____________________
I. Comments
-----------------------------------------------------------------------------------------------------
F. MISCELLANEOUS
1. Code violations
a. Current and outstanding _____________________
b. Last 24 months, with compliance _____________________
c. Contact municipalities as to other problems _____________________
2. Easement/encumbrances; restrictive easement Contracts/operating
easement Contracts _____________________
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. Copy of Management Contract _____________________
8. Recent third party appraisal _____________________
9. Marketing/leasing brochures _____________________
10. Survey _____________________
11. Site plan _____________________
12. Building photographs and aerials _____________________
13. Certificates of Occupancy _____________________
14. Zoning Letter _____________________
6
EXHIBIT "E"
TENANT ESTOPPEL CERTIFICATE
__________________________________
__________________________________
__________________________________
("Lender")
Inland (entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
RE: Lease Contract dated ______ and amended _____________ ("Lease"), between
_______________________________________________, as "Landlord", and
_________________________________________, as "Tenant", guaranteed by
____________________________________ ("Guarantor") for leased premises
known as ____________________________ (the "Premises") of the property
commonly known as_____________________________________(the "Property").
1. Tenant hereby certifies that the following represents with respect to
the Lease are accurate and complete as of the date hereof.
(a) Dates of all amendments, letter Contracts, modifications and waivers
related to the Lease
(b) Commencement Date
(c) Expiration Date
(d) Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
(e) Fixed or CPI Rent Increases
(f) Square Footage of Premises
(g) Security Deposit Paid to Landlord
(h) Renewal Options
_________ Additional Terms for years at $________________ per year
(i) Termination Options
7
TERMINATION DATE FEES PAYABLE
2. Tenant further certifies to Lender and Purchaser that:
(a) the Lease is presently in full force and effect and represents the
entire Contract between Tenant and Landlord with respect to the Premises;
(b) the Lease has not been assigned and the Premises have not been
sublet by Tenant;
(c) Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or abatements
required to be given by Landlord to Tenant have been given;
(d) Tenant is open for business or is operating its business at the
Premises;
(e) no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and Tenant is
not in arrears on any rental payment or other charges;
(f) Landlord has no obligation to segregate the security deposit or to
pay interest thereon;
(g) Landlord is not in default under the Lease and no event has
occurred which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
(h) Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
(i) Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in paragraph 1(i));
(j) Tenant has not been granted any options or rights of first refusal
to purchase the Premises or the Property;
(k) Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives relating
to the use or condition of the Premises or the Property;
(1) no hazardous wastes or toxic substances, as defined by all
applicable federal, state or local statutes, rules or regulations have been
disposed, stored or treated on or about the Premises or the Property by Tenant;
(m) the Lease does not give the Tenant any operating exclusives for the
Property; and
(n) Rent has been paid through _____________ ___, 20___.
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3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and Lender is about to provide Purchaser with
financing which shall be secured by a Deed of Trust (or Mortgage), Security
Contract and Assignment of Rents, Leases and Contracts ("Mortgage") upon the
Property. Tenant acknowledges that Purchaser's interest in the Lease (as
landlord) is being duly assigned to Lender as security for Lender's loan to
Landlord. All rent payments under the Lease shall continue to be paid to
landlord in accordance with the terms of the Lease until Tenant is notified
otherwise in writing by Lender or its successors and assigns. In the event that
Lender succeeds to landlord's interest under the Lease, Tenant agrees to attorn
to Lender at Lender's request and Lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant further
acknowledges and agrees that Purchaser, Lender and their respective successors
and assigns shall have the right to rely on the information contained in this
Certificate. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
[TENANT]
By:
---------------------------------
Name:
---------------------------------
Its:
---------------------------------
Date: ,20
----------------------- ---
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EXHIBIT "F"
FORM OF AUDIT LETTER
Ladies and Gentlemen:
We are writing you, as the owners of ___________________________________(the
"Property") 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, 20__, 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 without independent
investigation, the following representations made to you during the audit:
1. We have made available to you all financial records and related data
requested by you.
2. There have been no:
a) Instances of fraud involving any member of management or employees who
have significant roles in internal control that have had a material
effect on the Historical Summary.
b) Instances of fraud involving others that had a material effect on the
Historical Summary.
c) Communication from regulatory agencies concerning non-compliance with,
or deficiencies in, financial reporting practices that could have had
a material effect on the Historical Summary.
d) Violations or possible violations of laws or regulations, the effects
of which should have been disclosed in the Historical Summary.
3. There are no:
a) Unasserted claims or assessments that our lawyer advised us are
probable of assertion and must be disclosed in accordance with the
Statement of Financial Accounting Standards (SFAS) No. 5, Accounting
for Contingencies if we were providing you with financial statements.
b) Material liabilities or gain or loss contingencies (including oral and
written guarantees) that are required to be disclosed by SFAS No. 5 if
we were providing you with financial statements.
c) Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
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4. We have received no written notice that the Property has failed to comply
with any contractual agreements that would have had 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 financial records and data
provided to you by us and we acknowledge that such records and data will be used
by you in the preparation of the Historical Summary of Gross Income and Direct
Operating Expenses in conformity with cash basis of accounting.
The undersigned has executed this letter in his capacity as an Authorized Agent
of Green Springs Retail Company, L.L.C. and not individually and shall have no
personal liability as a result of or arising from his execution of this letter.
Very Truly Yours,
-------------------------------
By:
--------------------------
Its Authorized Agent
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