Exhibit 10.23
AGREEMENT RELATING TO IRV'S LEASE
This Agreement Relating to Irv's Lease (hereinafter referred to as the
"AGREEMENT") is entered into as of December 19, 2003, by and between 75th AND
XXXXX CORPORATION, a Delaware corporation ("SELLER"), and INLAND SOUTHEAST
DARIEN, L.L.C., a Delaware limited liability company ("BUYER").
RECITALS
A. Seller and Inland Retail Real Estate Trust, Inc. ("INLAND") have
entered into a Purchase and Sale Agreement dated as of November 12, 2003 (the
"PURCHASE AGREEMENT"), pursuant to which Seller has agreed to sell to Inland and
Inland has agreed to purchase from Seller that certain parcel of land, and
improvements, located in the City of Darien, DuPage County, Illinois, commonly
known as Xxxxxx Xxxxx Centre (the "PROPERTY"). Capitalized terms not otherwise
defined in this Agreement shall have the meanings assigned to them in the
Purchase Agreement.
B. Buyer has succeeded to the interest of Inland under the Purchase
Agreement.
C. Buyer and Seller desire to lease a portion of the Property, known as
Unit 2173 and consisting of 9,348 rentable square feet (the "IRV'S SPACE"),
which the parties had expected to lease to Rack Clothing South, Inc. (d/b/a
Irv's Men's Xxxx) ("IRV'S") prior to the Closing. As of the Closing Date, the
Irv's Space has not been leased. Buyer and Seller have agreed retroactively to
reduce the Purchase Price in the event the Irv's Space is not fully leased on or
before May 1, 2004. The maximum amount of such retroactive Purchase Price
reduction is $43,818.00, which sum (corresponding to three months of basic and
additional rent anticipated for the Irv's Space) Seller has agreed to set aside
from its net proceeds from the sale of the Property to Buyer and deposited in
escrow with the Escrow Company (such deposit, but not any earnings thereon,
being referred to in this Agreement as the "IRV'S DEPOSIT") pursuant to a
separate Joint Order Escrow Instructions to which Seller, Buyer and the Escrow
Company will be parties.
E. Buyer and Seller desire to set forth their understanding with respect
to the amount of, and conditions precedent to, any Purchase Price reduction, and
the release of the Irv's Deposit.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, including the mutual
promises, covenants and agreements herein contained, Seller and Buyer agree as
follows:
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1. BUYER'S CONTINUING OBLIGATION TO ATTEMPT TO LEASE IRV'S SPACE.
Buyer agrees to use commercially reasonable efforts to lease the Irv's
Space. Without limiting the foregoing, Buyer shall within a reasonable period
following the Closing offer to lease the Irv's Space to Irv's on terms no less
favorable to Irv's than those offered by Seller and Buyer to Irv's in the course
of their attempt to finalize a lease with Irv's contemporaneous with the
Closing. Buyer shall keep Seller fully apprised of the status of its
negotiations with Irv's and any other prospective tenants with respect to any
portion of the Irv's Space.
2. DISPOSITION OF IRV'S DEPOSIT.
(a) The Escrow Company shall pay to Seller all interest or other
earnings on the Irv's Deposit upon request of Seller. Upon request of Seller,
Buyer shall join in any instruction to the Escrow Company directing the Escrow
Company to release such earnings.
(b) If at any time prior to May 1, 2004, Buyer has entered into one
or more lease agreements under whose terms the entire Irv's Space will be Leased
as of May 1, 2004, Buyer and Seller shall instruct the Escrow Company to release
the entire Irv's Deposit to Seller.
(c) On May 1, 2004, and the first day of each calendar month
thereafter until the Irv's Deposit is exhausted, Buyer and Seller shall instruct
the Escrow Company to pay to Buyer an amount equal to the product obtained by
multiplying (i) the area (expressed as rentable square feet) of the Irv's Space
that is not Leased for that month, by (ii) $1.5625. Any such payment to Buyer
shall be deemed to be a reduction in the Purchase Price. If any portion of the
Irv's Space will be Leased on a date other than the first day of a calendar
month, the area considered Leased in such month shall be prorated in proportion
to the number of days in such calendar month in which such space is Leased
relative to the actual number of days in such calendar month.
(d) If at any time on or after May 1, 2004, the entire Irv's Space
has been Leased, Buyer and Seller shall instruct the Escrow Company to pay any
remaining Irv's Deposit to Seller.
For purpose of this Agreement, a portion of the Irv's Space shall be
considered "Leased" if it is the subject of a binding lease agreement (whether
the tenant is Irv's or a one or more other tenants) and the tenant's obligation
to pay rent for such space has commenced.
3. CHANGES TO CLOSING DOCUMENTS.
References to the Shopping Center Lease to Irv's is hereby deleted from
Schedule 2 of the Assignment of Leases and the Certified Lease List delivered by
Seller to Buyer at Closing.
4. NOTICE TO PARTIES.
All notices, demands, deliveries and communications (a "NOTICE") under this
Agreement shall be in writing and shall be delivered or sent by: (i) first
class, registered or certified mail, postage prepaid, return receipt requested,
(ii) nationally recognized overnight carrier, or (iii)
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facsimile (provided the original Notice is also sent via a nationally recognized
overnight carrier on the next business day) and shall be addressed to the
address of the party set forth below with copies to the parties designated below
or to such other address as either party may designate by Notice pursuant to
this Section. Any Notice transmitted in the manner described above shall be
deemed given when personally delivered, upon receipt of facsimile transmission,
upon delivery by the designated carrier, or on the third (3rd) business day
after mailing, whichever occurs first.
IF TO SELLER: 75TH AND XXXXX CORPORATION
c/o CB Xxxxxxx Xxxxx Investors
000 000xx Xxxxxx, X.X. #0000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile no. (000) 000-0000
With copy to: Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile no. (000) 000-0000
IF TO BUYER: Inland Southeast Darien, L.L.C.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX. 00000
Attn: G. Xxxxxx Xxxxxxx, Authorized Representative
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5. EXPENSES AND ATTORNEYS' FEES.
The prevailing party in any arbitration, suit or other action arising out
of or related to this Agreement shall be entitled to recover from the other
party all reasonable fees, costs and expenses incurred by the prevailing party
in connection with the arbitration, suit or action, including reasonable
judicial and extra-judicial attorneys' fees, expenses and disbursements and
fees, costs and expenses relating to any mediation, arbitration or appeal.
6. GOVERNING LAW AND VENUE.
This Agreement shall be deemed to be a contract made under the laws of the
State of Illinois and for all purposes shall be governed by and interpreted in
accordance with the internal laws of the State of Illinois. Any dispute arising
under or in any way related to this Agreement shall be adjudicated by any state
or federal court located within DuPage County, Illinois (or in the case of
federal court, any federal court in the state of Illinois), and each of the
parties hereby consents to the exclusive jurisdiction of said courts with
respect to such dispute.
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7. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, each of the parties executed this Agreement as of the
date set forth in the first paragraph.
SELLER:
75TH AND XXXXX CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Executive Vice President
BUYER:
INLAND SOUTHEAST DARIEN, L.L.C.,
a Delaware limited liability company
By: /s/ G. Xxxxxx Xxxxxxx
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Name: G. Xxxxxx Xxxxxxx
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Its: Authorized Agent
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