Exhibit 10.125
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Fifth
Amendment") is made and entered into as of the 23rd day of April, 2004, by and
between XXL ONE, LTD., a Tex as limited partnership ( "Seller"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Purchase and
Sale Agreement dated as of February 19, 2004 (the "Original Agreement"), as
amended by that certain First Amendment to Purchase and Sale Agreement dated as
of April 1, 2004 (the "First Amendment"), that certain Second Amendment to
Purchase and Sale Agreement dated as of April 8, 2004 (the "Second Amendment"),
that certain Third Amendment to Purchase and Sale Agreement dated as of April
14, 2004 (the "Third Amendment), and that certain Fourth Amendment to Purchase
and Sale Agreement dated as of April 21, 2004 (the "Fourth Amendment; and
together with the Original Agreement, the First Amendment, the Second Amendment
and the Third Amendment, the "Agreement"), with respect to certain real property
and all improvements thereon commonly known as Alison's Xxxxxx Xxxxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxx, and more particularly described in the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Fifth Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Fifth Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. ADDITIONAL CONDITIONS TO CLOSING. In addition to, and not in lieu or
limitation of, any and all conditions to Closing contained in the Agreement, the
obligation of Purchaser to close the transaction contemplated by the Agreement
and this Fifth Amendment is and shall be subject and conditioned upon, in
Purchaser's sole and absolute discretion, satisfaction of all of the following:
(a) Seller's delivery, on or before April 28, 2004 (the "Closing
Date"), to Purchaser a fully executed Guaranty of Lease executed by Xxxx
Stores, Inc. ("Ross"), pursuant to which Ross guaranties all payment
obligations of Xxxx Stores Texas, L.P. (the "Tenant") under and pursuant to
that certain Lease (as amended), dated as of November 14, 2002, between
Seller and the Tenant. Such guaranty shall be in form and substance
substantially similar to the Guaranty attached hereto as Exhibit A and made
a part hereof; and
(b) Seller's delivery, on or before the Closing Date, to Purchaser of
a revised Tenant Estoppel Certificate for Dots, LLC ("Dots") pursuant to
which Dots agrees and confirms that the square footage of all leasable
area of the shopping center of which the Leased Premises (as defined in
the Dots Tenant Estoppel Certificate) are a part is 55,066.
DMW
/s/ X.X.
A copy of the original Dots Tenant Estoppel Certificate is attached hereto
as Exhibit B and made a part hereof.
3. WARRANTIES.
(a) Seller and purchaser acknowledge that the warranties set forth on
Exhibit C attached hereto and made a part hereof are not transferable to
Purchaser (or its nominee or designee) without the prior consent of the
warranty provider. Seller agrees that, at its sole cost and by the Closing
Date, it will either (i) obtain the consent of each warranty provider
listed on Exhibit C hereto to the transfer of the applicable warranty to
Purchaser (or its nominee or designee), or (ii) cause the applicable
warranty to be re-issued in the name of Purchaser (or its nominee or
designee).
(b) Seller and Purchaser acknowledge that the warranty provided by
Xxxx Door Systems, Inc. relating to the Ross space is not transferable
without the warranty provider's prior consent. Seller and Purchaser agree
that such warranty will not be transferred to Purchaser (or its nominee or
designee) at Closing; provided, however, that Seller shall, until the
expiration of such warranty, cooperate with Purchaser, at no cost to
Seller, with respect to the enforcement of the terms and provisions of, and
any and all claims under, any such warranty.
4. COUNTERPARTS; FACSIMILE SIGNATURES. This Fifth Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
5. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Fifth Amendment,
this Fifth Amendment shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
DMW
/s/ X.X.
2
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Its: Authorized Agent
------------------------------------
SELLER:
XXL ONE, LTD., a Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Its: President
--------------------------------
DMW
EXHIBIT A
GUARANTY
As a [ILLEGIBLE] to and in consideration of DEVELOPMENT STRATEGIES
TEXAS, INC., a Texas corporation, ("Landlord"), entering into a written lease
(the "Lease") with XXXX STORES TEXAS, L.P., a Texas limited partnership
("Tenant"), dated the same date as this Guaranty, pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord Premises located in the City
of San Antonio, County of Bexar, State of Texas, XXXX STORES, INC., a
Delaware corporation ("Guarantor"), whose address is [ILLEGIBLE] Xxxxxxx
Xxxxxx, Xxxxxx, XX 00000, guarantees and [ILLEGIBLE] to and for the benefit of
Landlord the performance of all obligations of Tenant under the Lease.
The provisions of the Lease may be changed by agreement between Landlord
and Tenant at any time, or by [ILLEGIBLE] of [ILLEGIBLE], without the
[ILLEGIBLE] of or without notice to Guarantor. This Guaranty shall guarantee the
performance of the Lease as changed. Assignment of the Lease (as permitted by
the Lease) shall not affect this Guaranty.
If Tenant defaults with respect to any payment obligation under the Lease,
Landlord shall have the right to proceed immediately against Guarantor and/or
Tenant, and to enforce against Guarantor and/or Tenant any rights that Landlord
may have under the Lease or pursuant applicable laws with respect to such
default. If the Lease terminates and Landlord has any right(s) that it is
entitled to enforce against Tenant after termination, Landlord shall have the
right to enforce such right(s) against Guarantor.
Guarantor waives the right to require Landlord to (1) proceed against
Tenant; (2) proceed against or [ILLEGIBLE] any security that Landlord holds
from Tenant; or (3) Pursue any other remedy in Landlord's power. Guarantor
waives any defense by reason of any disability of Tenant, until all of
Tenant's monetary obligations to Landlord under the Lease have been
discharged in full, Guarantor has no right of subrogation against Tenant.
Guarantor waives its right to enforce any remedies that Landlord now has, or
later may have, against Tenant. Guarantor waives any right to participate in
any security now or later held by Landlord.
If Landlord is required to enforce Guarantor's obligations by legal
proceedings, Guarantor shall pay to Landlord all costs incurred, including,
without limitation, reasonable attorneys' fees.
Guarantor's obligations under this Guaranty shall be binding on
Guarantor's [ILLEGIBLE], but shall be no greater than Tenant's or as
otherwise set forth in this Lease.
Dated: November 14, 2002 XXXX STORES, INC.,
a Delaware corporation
By: /s/ [ILLEGIBLE]
-------------------------------
Its: Senior Vice President
-------------------------------
Alison's Corner Shopping Center 09/10/02 /s/ [ILLEGIBLE]
San Antonio, TX
[ILLEGIBLE] Project No. T022569
[ILLEGIBLE]
DMW
/s/ X.X.
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
TO: Inland Real Estate Acquisitions, Inc.
Inland Western San Antonio Military Drive Limited
Partnership, their lenders and their respective successor and/or
assigns 0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
RE: Alison's Corner Shopping Center
0000 XX Xxxxxxxx Xxxxx Xxx Xxxxxxx, Xxxxx (the "Property")
Ladies and Gentlemen:
The following statements are made with the knowledge that Inland Real
Estate Acquisitions, Inc., Inland Western San Antonio Military Drive Limited
Partnership, their lenders, and respective successors and assigns, and/or
investors (individually and collectively, as applicable, "Purchaser"), are
relying on them in connection with the acquisition and financing of the Property
by Purchaser and, in connection therewith, the assignment of the Lease (defined
below) to Purchaser, and Purchaser and its respective lenders, successors,
assigns and successor owners of the Property may rely on such statements for
that purpose.
The undersigned, successor in interest by merger and assignment to Dots,
Inc. effective as of May 23, 2003, ("Tenant"), being the Tenant under the Lease
covering certain premises at the Property, hereby certifies, represents,
warrants, covenants and agrees as follows:
1. Tenant is the tenant under a Lease with XXL One, Ltd ("Landlord")
dated December 10, 2002, as amended by letter amendment dated December 11, 2002,
delineating a No Build Area on the site plan (collectively, the "Lease"). The
Lease demises to Tenant approximately four thousand (4,000) square feet in the
Property, known as Unit/Suite 104 (the "Leased Premises"). The square footage of
all leasable area of the shopping center of which the Leased Premises is a part
is 58,187 (plus or minus). The initial term of the Lease commenced on September
11, 2003, and will expire on January 31, 2009, exclusive of unexercised renewal
options and extension options contained in the Lease. Tenant has three options
to extend the term of the Lease for five years each. There have been no other
amendments, modifications, revisions or supplements to the Lease, and there are
no other agreements of any kind between Landlord and Tenant regarding the Leased
Premises.
2. The Lease has been duly authorized and executed by Tenant and is in
good standing and in full force and effect.
3. Tenant has accepted, is in sole possession of, and is presently
occupying the Leased Premises. The Lease has not been hypothecated or assigned
by operation of law or otherwise by Tenant and no subleases, concession
agreement, license, use or other occupancy agreement covering the Leased
Premises, or any portion of the Leased Premises, has been entered into by Tenant
except as set forth above.
4. Tenant commenced paying rent on September 11, 2003. Tenant is
currently obligated to pay fixed or base rent under the Lease in the annual
amount of Sixty-Seven Thousand and No/100 Dollars ($67,000.00), payable in
advance, in equal monthly installments of Five Thousand Five Hundred
Eighty-Three and 33/100 Dollars ($5,583.33). The Lease provides for Tenant to
pay to Landlord as additional rent its pro rata share of operating expenses,
common area maintenace charges and insurance premiums ("Tenant's CAM Share"),
and its pro rate share of real property taxes ("Tenant's Tax Share"). Tenant
currently is paying,
DMW
/s/ X.X.
5
monthly, in advance, as additional rent under the Lease, equal installments (as
estimated by Landlord pursuant to the Lease) of the Tenant's CAM Share in the
amount of $373.33, and of the Tenant's Tax Share of $826.67. All rent has been
paid under the Lease through March 31, 2004. No rent under the Lease has been
paid more than (1) month in advance, and no other sums have been deposited with
Landlord. Tenant is entitled to no rent abatement, concessions, free rent,
allowances for improvements, refurbishment or otherwise or other similar
compensation in connection with renting the Leased Premises. Tenant has no
setoffs, claims or defenses to the enforcement of the Lease by Landlord and no
deductions of credits against rent under the Lease. Landlord has not rebated,
reduced or waived any amounts due from Tenant under the Lease, nor has Landlord
provided financing for, made loans or advances to, or invested in Tenant's
business.
5. To Tenant's knowledge, neither Landlord nor Tenant is in default under
the Lease beyond any applicable cure period and no event has occurred which,
with the giving of notice or passage of time, or both, could result in such
default. As of the date of this estoppel certificate, there is no dispute
between Landlord and Tenant, and there is no litigation between Landlord and
Tenant with respect to the Lease or the Leased Premises, and there has been no
litigation between Landlord (or any predecessor landlord) and Tenant with
respect to the Lease or the Leased Premises or Tenant's use and occupancy
thereof To Tenant's knowledge, Tenant has not received any notice of any present
violation of any federal, state, county or municipal laws, regulations,
ordinances, order or directives relating to use, operation or condition of the
Leased Premises or the Property.
6. Except as specifically stated in the Lease, Tenant has not been
granted (a) any option to extend the term of the Lease, (b) any option to expand
the Leased Premises or to lease additional space within the Property, (c) any
right of first refusal on any space at the Property, or (d) any option or right
of first refusal to purchase the Leased Premises or the Building or any part
thereof Tenant has no option to terminate the Lease as to the Leased Premises or
any part or portion thereof prior to its stated expiration except as fellows:
Pursuant to Section 3.4 of the Lease for any co-tenancy violation, Tenant has a
right to terminate the Lease. As of the date hereof and to Tenant's knowledge,
there is no such violation.
7. To Tenant's knowledge, ail obligations and conditions under the Lease
to be performed to date by Landlord have been satisfied, free of defenses and
set-offs, including all construction work and tenant improvements in the Leased
Premises, and Landlord has made all contributions, if any, required of Landlord
to date under the Lease. Landlord is not obligated to provide or construct any
further tenant improvements or other tenant allowances except as provided in the
Lease.
8. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Leased Premises or the Leases
or the rents, Tenant has not (a) applied for the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of itself or of
all or a substantial part of the Property. (b) admitted in writing its inability
to pay its debts as they become due, (c) made a general assignment for the
benefit of its creditors, (d) filed a voluntary petition or commenced a
voluntary case or proceeding under the Federal, Bankruptcy Code, (e) been
adjudicated a bankrupt or insolvent, (f) filed a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) received any notice of any
petition filed against it in an involuntary case or proceeding under the Federal
Bankruptcy Code, or (h) taken any corporate, partnership, limited liability
company or other action for the purpose of effecting any of the foregoing.
DMW
/s/ X.X.
6
EXECUTED as of the 19th day of March, 2004.
A Delaware limited liability company.
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Director/Lease Administration
DMW
/s/ X.X.
EXHIBIT C
WARRANTY PROVIDER CONSENT EXPIRATION
-------------------------- ------------------------ -------------- ----------
ROOF (595 SQS) American Roofing & Metal NEED CONSENT 6/9/05
Co., Inc.
ROOF (59,500 sq.ft.) OMNOVA Solutions, Inc. NEED CONSENT 5/28/2018
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603D05436 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Unit Model No. LGC156HL1G, Lennox NEED CONSENT Varies
Serial No.5603D05461 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603D05465 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603C04950 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603D05639 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603D05848 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
Xxxx Xxxxx Xx. XXX000XX0X, Lennox NEED CONSENT Varies
Serial No. 5603D05822 FOR ASSIGNMENT
OF THE
EXTENDED
WARRANTY
DMW
/s/ X.X.
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT (this "Fourth
Amendment") is made and entered into as of the 21st day of April, 2004, by and
between XXL ONE, LTD., a Texas limited partnership ("Seller"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain
Purchase and
Sale Agreement dated as of February 19, 2004 (the "Original Agreement"), as
amended by that certain First Amendment to Purchase and Sale Agreement dated as
of April 1, 2004 (the "First Amendment"), by that certain Second Amendment to
Purchase and Sale Agreement dated as of April 8, 2004 (the "Second Amendment"),
and that certain Third Amendment to Purchase and Sale Agreement dated as of
April 14, 2004 (the "Third Amendment; and together with the Original Agreement,
the First Amendment and the Second Amendment, the "Agreement"), with respect to
certain real property and all improvements thereon commonly known as Alison's
Xxxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx, and more particularly described in
the Agreement
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS: DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Fourth Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Fourth Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 7 of the Original Agreement, as
amended by Section 2 of the First Amendment, Section 2 of the Second Amendment
and Section 2 of the Third Amendment, Buyer's Initial Examination Period is
scheduled to expire on April 21, 2004. Seller and Purchaser hereby agree that
the date upon which Buyer's Initial Examination Period shall expire is hereby
extended from April 21, 2004 until April 23, 2004.
3. COUNTERPARTS: FACSIMILE SIGNATURES. This Fourth Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Fourth Amendment,
this Fourth Amendment shall be deemed to be a part of the Agreement
[SIGNATURES ON FOLLOWING PAGE]
DMW
/s/ X.X.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Its: Authorized Agent
--------------------------------
SELLER:
XXL ONE, LTD., A Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Its: President
-------------------------------
DMW
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Third
Amendment") is made and entered into as of the 14th day of April, 2004, by and
between XXL ONE, LTD., a Texas limited partnership (" Seller"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Purchase and
Sale Agreement dated as of February 19, 2004 (the "Original Agreement"), as
amended by that certain First Amendment to Purchase and Sale Agreement dated as
of April 1, 2004 (the "First Amendment"), and by that certain Second Amendment
to Purchase and Sale Agreement dated as of April 8, 2004 (the "Second
Amendment"; and together with the Original Agreement and the First Amendment,
the "Agreement"), with respect to certain real property and all improvements
thereon commonly known as Alison's Xxxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx,
and more particularly described in the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Third Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Third Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 7 of the Original Agreement, as
amended by Section 2 of the First Amendment and Section 2 of the Second
Amendment, Buyer's Initial Examination Period is scheduled to expire on April
14, 2004. Seller and Purchaser hereby agree that the date upon which Buyer's
Initial Examination Period shall expire is hereby extended from April 14, 2004
until April 21, 2004.
3. PURCHASE PRICE. Notwithstanding anything to the contrary contained in
Section 4 of the Original Agreement, the Purchase Price for the Property shall
be Six Million Nine Hundred Sixty One Thousand Five Hundred Twenty Nine and
No/100 Dollars ($6,961,529.00).
4. CLOSING. Notwithstanding anything to the contrary contained in the
Agreement (including, without limitation, Section 11 of the Original Agreement),
and subject to satisfaction of all conditions to Closing, the Closing shall
occur on April 28, 2004.
5. COUNTERPARTS; FACSIMILE SIGNATURES. This Third Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
6. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally
DMW
/s/ X.X.
written. From and after the date of this Third Amendment, this Third Amendment
shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
DMW
/s/ X.X.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Its: Authorized Agent
--------------------------------
SELLER:
XXL ONE, LTD., a Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Its: President
-------------------------------
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Second
Amendment") is made and entered into as of the 8th day of April, 2004, by and
between XXL ONE, LTD., a Texas limited partnership ("Seller"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Purchase and
Sale Agreement dated as of February 19, 2004 (the "Original Agreement"), as
Amended by that certain First Amendment to Purchase and Sale Agreement dated as
of April 1, 2004 (the "First Amendment"; and together with the Original
Agreement, the "Agreement"), with respect to certain real property and all
improvements thereon commonly known as Alison's Xxxxxx Xxxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxx, and more particularly described in the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Second Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Second Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 7 of the Original Agreement, as
amended by Section 2 of the First Amendment, Buyer's Initial Examination Period
is scheduled to expire on April 8, 2004. Seller and Purchaser hereby agree that
the date upon which Buyer's Initial Examination Period shall expire is hereby
extended from April 8, 2004 until April 14, 2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Second Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Second Amendment,
this Second Amendment shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
/s/ X.X.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC. an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Its: Authorized Agent
--------------------------------
SELLER:
XXL ONE, LTD., a Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Its: President
---------------------------
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC, an Illinois corporation
By:
--------------------------------------
Name:
-------------------------------
Its:
--------------------------------
SELLER:
XXL ONE, LTD., a Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Its: President
---------------------------
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "First
Amendment") is made and entered into as of the 1st day of April, 2004, by and
between XXL ONE, LTD., a Texas limited partnership ("Seller"), and INLAND REAL
ESTATE ACQUISITIONS, INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Purchase and
Sale Agreement dated as of February 19, 2004 (the "Agreement"), with respect to
certain real property and all Improvements thereon commonly known as Alison's
Xxxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx, and more particularly described in
the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this First Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
First Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 7 of the Agreement, Buyer's
Initial Examination Period is scheduled to expire on April 1, 2004. Seller and
Purchaser hereby agree that the date upon which Buyer's Initial Examination
Period shall expire is hereby extended from April 1, 2004 until April 8, 2004.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This First Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this First Amendment,
this First Amendment shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
/s/ X.X.
DMW
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC, an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Its: Authorized Agent
--------------------------------
SELLER:
XXL ONE, LTD., a Texas limited partnership
By: DEVELOPMENT STRATEGIES TEXAS, INC., its
General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Its: President
---------------------------
DMW
PURCHASE AND SALE AGREEMENT
BETWEEN
INLAND REAL ESTATE ACQUISITIONS, INC. AS BUYER, AND
XXL ONE, LTD., A TEXAS LIMITED PARTNERSHIP, AS SELLER
This Purchase and Sale Agreement (the "AGREEMENT") is entered into by and
between INLAND REAL ESTATE ACQUISITIONS, INC. ("BUYER"), and XXL ONE, LTD., A
TEXAS LIMITED PARTNERSHIP ("SELLER"). In consideration of the mutual covenants
and representations herein contained, Seller and Buyer agree as follows:
1. DESCRIPTION OF PROPERTY. Seller agrees to sell, and Buyer agrees to
purchase, according to the terms set forth, the following described property
(herein collectively called the "PROPERTY" or "PROJECT").
1.1 LAND. Xxx 0, Xxxxx 0, XXX 00000, Alison's Xxxxxx Xxxxxxxxxxx,
Xxxx xx Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx, according to the plat recorded in
Volume 9544, Page 11, Deed and Plat Records of Bexar County, Texas, and as more
specifically described in the attached EXHIBIT "A," which is incorporated herein
by reference as if copied at length.
1.2 EASEMENTS. All of Seller's right, title, and interest in any
easements affecting or relating to the Property.
1.3 IMPROVEMENTS. Single story, Fifty Five Thousand Sixty-Six
(55,066) square foot building, more or less, as more particularly described in
EXHIBIT "C," which is attached hereto, and incorporated herein by reference for
all purposes as if copied at length, together with all fixtures, structures,
parking areas, landscaping and all other improvements constructed and located on
the Property (the "IMPROVEMENTS").
1.4 RIGHTS AND APPURTENANCES. All rights and appurtenances
pertaining to the Land, including any right, title, and interest of Seller in
and to all any strips or gores between the Land and all abutting or adjoining
properties, adjacent streets, alleys or right-of-way in, on, across, in front
of, or used in connection with the beneficial use and enjoyment of said Land and
Property, as well as any rights, licenses, privileges and reversions appurtenant
to the Land and Property, as well as all development rights, air rights and
water rights relating to the Property (the "RIGHTS AND APPURTENANCES").
1.5 TANGIBLE PERSONAL PROPERTY. All that property described in
EXHIBIT "D," which is attached hereto, and incorporated herein by reference for
all purposes as if copied at length, including, but not limited to, equipment,
tools, machinery, supplies, spare parts, vehicles, antennas, air conditioning
and cooling units or systems, carpeting, awnings, keys, access cards, codes,
devices and computer software used for access to the Property, including all
entrance doors and locked spaces, signs, building materials and other tangible
personal property of every kind and character owned by Seller and located upon
or used in connection with the operation and management of the Property, but
excluding all personal property owned by Tenants (the "TANGIBLE PERSONAL
PROPERTY").
1.6 INTANGIBLE PROPERTY. All that property described in EXHIBIT "E,"
which is attached hereto, and incorporated herein by reference for all purposes
as if copied at length, including, but not limited to, all licenses, permits,
certificates of occupancy and approvals issued or granted by the applicable
municipal authorities in connection with the Property, as well as all building
plans and specifications (including "AS BUILT" drawings) respecting the
Improvements, and all structural reviews, architectural drawings and
engineering, soils, seismic, geologic and architectural reports, surveys,
environmental risk assessment reports, utility and zoning studies, traffic
studies, wetland studies, termite or other pest control reports, studies and
certificates and
/s/ X.X.
/s/ [ILLEGIBLE]
other documents pertaining to the Property which are within the possession of,
under the control of, or reasonably available to Seller (the "INTANGIBLE
PROPERTY").
1.7 LEASES. The leases, including all amendments thereto and
guaranties thereof (the "LEASES") described in the EXHIBIT "F," which are
attached hereto, and incorporated herein by reference for all purposes as if
copied at length.
1.8 CONTRACTS. All (i) management, leasing, service, construction,
architect, development, maintenance, operating, repair and other contracts,
agreements and commitments (excluding the Leases) in any way relating to the
Property or any part thereof; (ii) equipment leases and all rights and options
of Seller thereunder relating to equipment or property located in or upon the
Property or used in connection therewith; and (iii) guarantees and warranties in
effect with respect to the Property or any portion thereof (collectively, the
"CONTRACTS"). Prior to the expiration of Buyer's Examination Period, Buyer shall
have the right to notify Seller of any Contracts that Buyer requires be
terminated as of Closing (the "TERMINATED CONTRACTS"). Seller shall, at its sole
cost and expense, cause all of the Terminated Contracts to be terminated as of
Closing.
2. EFFECTIVE DATE. This Agreement when executed by Buyer and Seller shall
be delivered to Chicago Title Insurance Company, Attention: Xxxxx Xxxxxx (the
"ESCROW AGENT") (See Notice to Title Company and Escrow Agent that follows the
signature of Buyer and Seller in this Agreement). The effective date of this
Agreement will be the date on which this Contract is fully executed by both
parties and receipted by the Escrow Agent.
3. XXXXXXX MONEY.
3.1. XXXXXXX MONEY. Within three (3) Business Days after the
Effective Date, the Buyer will cause to be delivered to the Escrow Agent the
amount of ONE HUNDRED TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($125,000.00 U.S.)
in immediately available funds, to secure Buyer's performance pursuant to the
terms and conditions of this Agreement, to be held in an interest bearing
account with a federally insured institution reasonably acceptable to Buyer
(said sum and all interest earned thereon is herein the "INITIAL XXXXXXX
MONEY"). Additional xxxxxxx money in the amount of ONE HUNDRED TWENTY FIVE
THOUSAND AND NO/100 DOLLARS ($125,000.00 U.S.) (the "ADDITIONAL XXXXXXX MONEY")
shall be delivered to the Escrow Agent in immediately available funds within
three (3) Business Days after the expiration of the Buyer's Examination Period
as defined herein in the event Buyer does not terminate this Agreement prior to
the expiration of the Buyer's Examination Period pursuant to the provisions of
this Agreement. The Additional Xxxxxxx Money shall also be placed in the
interest bearing account referenced above and shall be applied at Closing or
otherwise disbursed as provided by the other terms of this Agreement. The
Initial Xxxxxxx Money and the Additional Xxxxxxx Money, together with all
interest accrued thereon, are hereinafter referred to collectively as the
"XXXXXXX MONEY," which Xxxxxxx Money shall be nonrefundable to Buyer unless
Buyer exercises a right to terminate this Agreement in accordance with the terms
of this Agreement and shall be applied at Closing. Seller shall have the option
of terminating this Agreement if the Xxxxxxx Money is not delivered to the
Escrow Agent within
/s/ X.X.
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
2
such time. In the event this transaction closes, the Xxxxxxx Money shall be
applied to the Purchase Price at Closing. The Xxxxxxx Money shall otherwise be
disbursed in accordance with the applicable provisions of SECTIONS 5, 7, 11.9,
14, 22 AND 23 of this Agreement. If the Xxxxxxx Money is returned to Buyer on
account of Buyer's election to terminate this Agreement, such payment
constitutes: a complete release of all claims, if any, that Buyer has or may
have against Seller; of any rights that Buyer has under this Agreement; and
termination of any obligation Seller has to anyone under this Agreement.
Notwithstanding anything to the contrary provided above or elsewhere in this
Agreement, the Escrow Agent shall disburse the Xxxxxxx Money only upon receipt
of the joint order of Seller and Buyer; provided, however, that only the order
of Buyer shall be required to direct disbursement of the Xxxxxxx Money prior to
the expiration of Buyer's Examination Period.
4. PURCHASE PRICE. The Purchase Price (the "PURCHASE PRICE" for the
Property shall be a total of SEVEN MILLION FORTY ONE THOUSAND FIVE HUNDRED
TWENTY NINE AND NO/100 DOLLARS ($7,041,529.00 U.S.) The Purchase Price, plus or
minus prorations as hereinafter provided in this Agreement, shall be payable in
cash at Closing (as that term is defined in SECTION 11).
5. TITLE AND SURVEY(S); LEASES; REPORTS AND STUDIES.
5.1 SURVEY(S). Within five (5) Business Days after the Effective
Date, Seller will provide Buyer with copies of all surveys in its possession.
The cost of the amendment of the "SURVEY EXCEPTION" from the Owner's Title
Policy shall be at Buyer's expense. Seller acknowledges that Buyer intends to
order, at Buyer's cost and to Buyer's specifications, a current as-built survey
of the Property (the "AS-BUILT SURVEY").
5.2 TITLE COMMITMENT. Within five (5) Business Days after the
Effective Date, Seller, at Seller's sole cost and expense, shall furnish or
cause the Title Company to furnish to Buyer a Commitment for the Title Insurance
from the Title Company (the "COMMITMENT") together with complete and legible
copies of all instruments that create or evidence exceptions to title (the
"TITLE DOCUMENTS"). Such Commitment shall state it will furnish to Buyer at the
Closing a fully paid Owner's Policy of Title Insurance (the "OWNER'S TITLE
POLICY") underwritten by Chicago Title Insurance Company covering the Property
(which Title Policy shall be at Seller's expense) in the aggregate face amount
of the total Purchase Price, subject to all Permitted Exceptions (hereinafter
defined). The Seller and Buyer acknowledge that the Title Company for purposes
of this transaction is Marathon Title Company, attn. Xxxx Xxx & Xxxxx Xxxxxxxx,
210-366-1306 office, 210-366-073Ofax, email Xxxx@xxxxxxxxxxxxx.xxx or
Xxxxx@xxxxxxxxxxxxx.xxx, 000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx Xxxxx
00000 and that Marathon will receive one hundred percent (100%) of all fees paid
for title work and title policy for this transaction.
5.3 TITLE AND SURVEY OBJECTIONS. Buyer shall have fifteen (15)
Business Days from the respective date that all of the As-Built Survey,
Commitment and Title Documents are provided within which to approve or
disapprove the Commitment and the As-Built Survey (the "APPROVAL PERIODS"), such
approvals or disapprovals to be within Buyer's sole discretion. If Buyer fails
to disapprove any such item by written notice to Seller and the Title Company
within
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
3
either respective Approval Period, Buyer shall be deemed to have approved such
item. Buyer shall give Seller written notice of its objections to the Commitment
and As-Built Survey (the "TITLE AND SURVEY OBJECTIONS") within the respective
Approval Period. Buyer is deemed to object to all matters listed on SCHEDULE C
of the Commitment. All monetary encumbrances other than non-delinquent ad
valorem property taxes and installments of assessments not yet payable will be
deemed disapproved, except for taxes which are to be paid and/or prorated at
closing pursuant to this Agreement. All of the exceptions set forth on the
Commitment that are approved by Buyer or which are deemed to be approved by
Buyer shall constitute the "PERMITTED EXCEPTIONS." If Buyer disapproves any item
on the Commitment or As-Built Survey by written notice to Seller and the Title
Company during the respective Approval Period, Buyer may terminate this
Agreement (in which event, if exercised, the Xxxxxxx Money immediately shall be
returned to Buyer), unless Seller (without any obligation to do so) cures
Buyer's objection to such item within fifteen (15) days after Seller actually
receives Buyer's written notice of disapproval or, if sooner, by the Closing
Date. In the event Seller elects not to cure, or for any reason fails to
satisfy, any one or more of Buyer's objections pursuant to this SECTION 5, such
failure shall not be an event of default by Seller, but in such event Seller
shall notify Buyer in writing of such election (the "ELECTION NOTICE") and
request that Buyer waive Buyer's right to terminate this Agreement due to such
objection(s). Buyer shall thereafter have five (5) Business Days after receipt
of the Election Notice within which to waive its termination right or to
terminate this Agreement. In the event Buyer fails to respond within such five
(5) day period, Buyer will be deemed to have waived and accepted all uncured and
unsatisfied Title and Survey Objections, which together with the other Permitted
Exceptions described herein and all the exceptions to Title to which Buyer has
not objected, shall thereafter constitute the Permitted Exceptions.
Notwithstanding anything to the contrary in this Agreement, Seller shall remove
from title on or before the Closing Date all monetary encumbrances, and all
judgments, if any, against Seller.
5.4. LEASES. Within five (5) Business Days after the Effective Date,
Seller will provide to Buyer complete copies of all signed Leases, and will
subsequently provide to Buyer additional Leases within five (5) Business Days of
when each fully signed lease is received by Seller, subject, however, to the
restrictions on new leases set forth in SECTION 9 below.
5.5. REPORTS. Within five (5) Business Days after the Effective Date,
Seller will provide to Buyer complete copies of all of the Environmental
Reports, Geotechnical Reports, all other Intangible Property as defined above,
ad valorem tax data, and all warranties and guarantees affecting any portion of
the Land and Improvements, including but not limited to, HVAC and roofing
warranties that is in Seller's present possession and/or control, and all other
matters, information and materials set forth on the Due Diligence Checklist
attached hereto as EXHIBIT "H" and made a part hereof. Seller will cooperate
with Buyer, at Seller's sole expense, to permit Buyer to obtain "RELIANCE
LETTERS" permitting Buyer to rely on those third-party obligations.
6. ENGINEERING AND ENVIRONMENTAL STUDIES BY BUYER. During the Buyer's
Examination Period, Buyer and its agents shall have the right, at reasonable
times and upon notice to Seller as required in SECTION 7, during normal business
hours to enter upon the Property and to conduct soil, environmental and/or other
studies, tests, inspections, analyses and appraisals, which Buyer deems
advisable at the expense of Buyer, so long as after the completion of any such
studies, the Property is substantially returned to the condition existing prior
to such
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
4
studies, (the "PROPERTY INSPECTION"). Buyer shall give Seller verbal or written
notice not less than one (1) Business Day (or two (2) Business Days of any
testing will be invasive (i.e., a Phase II environmental assessment)) prior to
conducting any test or inspection that physically affects the Property such as
soil borings or internal examination of equipment or components of improvements,
if any. Buyer shall not perform any test or inspection which will permanently
alter or damage the Property, and Buyer shall immediately at Buyer's sole cost
and expense, restore and replace any part of the Property altered or damaged as
a result of the Property Inspection to substantially the same condition as
existed immediately prior to such test or inspection. Buyer shall pay in a
timely fashion all fees charged by Buyer's experts and shall not permit any
claims to be made against Seller or permit any liens to be created against the
Property by Buyer's experts. The entry upon the Property by Buyer, Buyer's
personnel and Buyer's experts shall be at their respective risks.
Notwithstanding the above, Buyer shall have no responsibility or liability for
any act or omission of Seller or Seller's agents, employees, contractors or
tenants and/or any adverse condition or defect on or affecting the Properly not
caused by Buyer or its employees, agents, contractors or subcontractors but
discovered or impacted during their inspections, studies and/or investigations.
Seller shall make all books, records and files relating to the Property
(including, without limitation, tenant files and correspondence) available to
Buyer for its review.
7. BUYER'S EXAMINATION PERIOD.
7.1 LEASE AND PROPERTY INSPECTION. Buyer shall have until
thirty (30) business days after the Effective Date of this Agreement ("BUYER'S
INITIAL EXAMINATION PERIOD") to conduct a review of, and to determine if the
following, in the Buyer's sole discretion, results in the Buyer's purchase of
the Property being economically and commercially viable to Buyer: (i) the
Leases; (ii) all Intangible Property as defined above; (iii) the Property
Inspection; and (iv) any and all other matters relating to and aspects of the
Property deemed necessary or appropriate by Buyer to be analyzed, reviewed,
tested, inspected and examined. In the event that Buyer shall not have received
the As-Built Survey prior to the expiration of the Buyer's Initial Examination
Period, then Buyer shall have the right, by delivering notice thereof to Seller
prior to the expiration of Buyer's Initial Examination Period, to extend Buyer's
Initial Examination Period for an additional fifteen (15) calendar days. The
period of time from the Effective Date until the expiration of Buyer's Initial
Examination Period, as it may be extended as provided above, shall hereinafter
be referred to as "BUYER'S EXAMINATION PERIOD". Seller acknowledges and agrees
that, in consideration of Buyer's rights to conduct the Property Inspection and
the review of the Leases and Intangible Property during Buyer's Examination
Period, Seller has received from Buyer the sum of One Hundred and No/100 Dollars
($100.00) (the "INDEPENDENT CONTRACT CONSIDERATION") in cash. This Independent
Contract Consideration is in addition to, and independent of, the Xxxxxxx Money
and any other payment by Buyer to Seller. This Independent Contract
Consideration is nonrefundable and shall be retained by Seller notwithstanding
any other provision of this Agreement.
7.2 ABSOLUTE RIGHT TO TERMINATE DURING BUYER'S EXAMINATION
PERIOD. The conditions set forth in this SECTION 7 are solely for the benefit of
Buyer and may be waived only by Buyer. Buyer shall at all times have the right
at its sole discretion to waive any condition. Such waiver or waivers shall be
in writing to Seller. The waiver by Buyer of any condition shall not relieve
Seller of any liability or obligation with respect to any representation,
warranty,
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
5
covenant or agreement of Seller. During the Buyer's Examination Period, Buyer
will be conducting a review with respect to this Project so as to satisfy itself
with respect to the condition of and other matters relating to this Project.
During this time period, Buyer will have the absolute right to terminate this
Agreement should the information and documents provided by Seller to Buyer or
Buyer's evaluation and inspection of the Project result in Buyer's
determination, in Buyer's sole and absolute discretion and for any or no reason
whatsoever, that the Project is not suitable for Buyer's intended investment
objectives. Neither the Seller nor the Buyer shall act or fail to act for the
purpose of permitting or causing any condition to fail (except to the extent the
Buyer, in its own discretion, exercises its right to disapprove any such items
or matters). If Buyer fails to terminate this Agreement as provided above by
delivering written notice to Seller, the Escrow Agent and Title Company on or
before the expiration of Buyer's Examination Period, Buyer's inspection of the
Property shall be deemed satisfactory to Buyer, and Buyer shall immediately be
obligated to purchase the Property, subject to the provisions hereof. If Buyer
terminates this Agreement in accordance with the right to terminate this
Agreement pursuant to this SECTION 7, the Xxxxxxx Money shall be returned to
Buyer, and neither party will have any further rights or obligations under this
Agreement, except as otherwise provided in this Agreement.
7.3 DISCLAIMER. THIS AGREEMENT IS MADE WITHOUT RECOURSE (EVEN
AS TO THE RETURN OF THE PURCHASE PRICE), REPRESENTATION OR WARRANTY (EXCEPT AS
TO THE WARRANTIES, COVENANTS AND REPRESENTATIONS EXPRESSLY MADE HEREIN,
INCLUDING, WITHOUT LIMITATION THOSE SET FORTH IN SECTION 9 OF THIS AGREEMENT,
AND THE SPECIAL WARRANTIES IN THE SPECIAL WARRANTY DEED) OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY AND SELLER IS TRANSFERRING THE PROPERTY COVERED HEREBY AS
IS, WHERE IS, AND WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS OR WARRANTY (ALL
OF WHICH SELLER HEREBY DISCLAIMS) (EXCEPT AS TO THE WARRANTIES, COVENANTS AND
REPRESENTATIONS EXPRESSLY MADE HEREIN) AS TO FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY, DESIGN, QUALITY, LAYOUT, FOOTAGE, PHYSICAL CONDITION,
OPERATION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OF LATENT DEFECTS, OR
COMPLIANCE WITH LAWS AND REGULATIONS (INCLUDING, WITHOUT LIMITATION, THOSE
RELATING TO HEALTH, SAFETY AND THE ENVIRONMENT) OR ANY OTHER MATTER AFFECTING OR
RELATED TO THE PROPERTY. BUYER HEREBY FURTHER ACKNOWLEDGES THAT (EXCEPT AS TO
THE WARRANTIES, COVENANTS AND REPRESENTATIONS EXPRESSLY MADE HEREIN, INCLUDING,
WITHOUT LIMITATION THOSE SET FORTH IN SECTION 9 OF THIS AGREEMENT) SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ALL REPRESENTATION AND
WARRANTIES AS TO WATER, SOIL OR GEOLOGY OF THE PROPERTY AND AS TO INCOME TO BE
DERIVED FROM THE PROPERTY. WITHOUT LIMITING THE FOREGOING (EXCEPT AS TO THE
WARRANTIES, COVENANTS AND REPRESENTATIONS EXPRESSLY MADE HEREIN, INCLUDING,
WITHOUT LIMITATION THOSE SET FORTH IN SECTION 9 OF THIS AGREEMENT), SELLER DOES
NOT AND HAS NOT MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR
ABSENCE OF ANY HAZARDOUS SUBSTANCES (AS HEREINAFTER DEFINED) ON, UNDER OR ABOUT
THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
6
PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE
CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL
INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT, THE CLEAN WATER ACT, THE CLEAN AIR
ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE TEXAS SOLID
WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL
ACT, ANY SO CALLED FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE,
OR ANY OTHER STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE
REGULATING, RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR
STANDARDS OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (COLLECTIVELY, THE
"HAZARDOUS SUBSTANCE LAWS"). FOR PURPOSES OF THIS AGREEMENT, THE TERM "HAZARDOUS
SUBSTANCES" SHALL MEAN AND INCLUDE THOSE ELEMENTS OR COMPOUNDS WHICH ARE
CONTAINED ON THE LIST OF HAZARDOUS SUBSTANCES ADOPTED BY THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY AND THE LIST OF TOXIC POLLUTANTS DESIGNATED BY
CONGRESS OR THE ENVIRONMENTAL PROTECTION AGENCY OR UNDER ANY HAZARDOUS SUBSTANCE
LAWS. BUYER HEREBY FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS RELYING SOLELY
UPON THE INSPECTION, EXAMINATION, AND EVALUATION OF THE PROPERTY BY BUYER. THE
PURCHASE PRICE IS A NEGOTIATED PURCHASE PRICE REPRESENTING THE FACT THAT THE
PROPERTY IS BEING PURCHASED BY BUYER ON AN "AS IS," "WHERE IS" AND "WITH ALL
FAULTS" BASIS (SUBJECT, HOWEVER, TO THE REPRESENTATIONS, WARRANTIES AND
COVENANTS EXPRESSLY MADE HEREIN AND IN THE SPECIAL WARRANTY DEED). THE EXPRESS
INTENTION OF BUYER AND SELLER IS THAT BUYER SHALL PURCHASE THE PROPERTY FROM
SELLER WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, FROM OR OF
SELLER (OTHER THAN THE EXPRESS WARRANTIES, COVENANTS AND REPRESENTATIONS OF
SELLER SET FORTH HEREIN AND OTHER THAN THE SPECIAL WARRANTIES IN THE SPECIAL
WARRANTY DEED, RESPECTIVELY). BUYER HEREBY WAIVES AND RELINQUISHES ALL RIGHTS
AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT, OR IN RELATION TO, ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WHICH MAY HAVE BEEN MADE
OR GIVEN, OR WHICH MAY BE DEEMED TO HAVE BEEN MADE OR GIVEN, BY SELLER (OTHER
THAN THE EXPRESS WARRANTIES, COVENANTS AND REPRESENTATIONS SET FORTH HEREIN AND
OTHER THAN THE SPECIAL WARRANTIES IN THE SPECIAL WARRANTY DEED). WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, BUYER HEREBY ASSUMES ALL RISK AND
LIABILITY (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT,
INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATING
TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR, OR OPERATION OF
THE PROPERTY, EXCEPT AS OTHERWISE PROVIDED HEREIN AND EXCEPT FOR A BREACH OR
VIOLATION OF ANY REPRESENTATIONS, WARRANTY OR COVENANT CONTAINED HEREIN OR IN
THE SPECIAL WARRANTY DEED. BUYER ACKNOWLEDGES THAT BUYER WILL INSPECT THE
PROPERTY AND WILL ACCEPT THE PROPERTY "AS IS", "WHERE IS"
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
7
AND "WITH ALL FAULTS" (SUBJECT, HOWEVER, TO THE REPRESENTATIONS, WARRANTIES AND
COVENANTS EXPRESSLY MADE HEREIN AND IN THE SPECIAL WARRANTY DEED). SELLER IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL
ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE
SPECIFICALLY SET FORTH OR REFERRED TO HEREIN, AND SELLER SHALL NOT BE LIABLE OR
BOUND IN ANY MANNER BY ANY STATEMENT OR INFORMATION CONTAINED IN ANY REPORT
PROVIDED PURSUANT TO THIS AGREEMENT, OR ANY OMISSION WITH RESPECT TO ANY SUCH
REPORT. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY
PRIOR NEGOTIATION TO REFLECT THAT ALL PROPERTY IS SOLD BY SELLER SUBJECT TO THE
FOREGOING.
7.4. AS IS, WHERE IS, WITH ALL FAULTS. Because Buyer has
agreed, subject to the terms and provisions of SECTION 7.3 above, that Seller
shall not be responsible or liable to Buyer for any defects, errors, omissions,
or on account of any other conditions affecting the Property, and because Buyer
is purchasing, subject to the terms and provisions of SECTION 7.3 above, the
Property AS IS, WHERE IS, and WITH ALL FAULTS, Buyer hereby fully, irrevocably
and unconditionally releases and discharges the Seller and, as applicable, its
respective officers, directors, partners, trustees, agents, attorneys, employees
and representatives (collectively, the "SELLER PARTIES") from, and Buyer hereby
waives and relinquishes any claims that Buyer may ever have against the Seller
Parties for, any cost, loss, liability, damage, and expense arising out of or
related to any alleged representations (other than those expressly made herein,
including, without limitation those set forth in SECTION 9 of this Agreement),
or warranties, whether express or implied, which may have been made or given, or
which may be deemed to have been given by any of the Seller Parties (Seller
having specifically disclaimed having made any such representations or
warranties), or any defects or other conditions affecting the Property,
including, without limitation, claims arising out of the presence of Hazardous
Substances on the Property or any other past, present or future physical or
environmental condition of the Property. THE RELEASE AND WAIVER CONTAINED IN
THIS SECTION SHALL APPLY AND BE ENFORCEABLE AS A DEFENSE AGAINST ANY CLAIMS MADE
BY BUYER (OR BUYER'S SUCCESSORS AND ASSIGNS) EXCEPT AS PROVIDED IN THIS
AGREEMENT, and such release and waiver shall be given full force and effect
according to each of its express terms and provisions, whether the causes of
action are in the nature of fraud, tort or breach of Contract, xxxxxx or
inchoate, or relating to unknown and suspected claims, damages or losses.
Notwithstanding the foregoing, Seller shall not be released from any fraud or
bad faith or from any violation of any covenant, term or provision of this
Agreement or breach of any representation or warranty contained in this
Agreement.
7.5 SURVIVAL The provisions of this SECTION 7 shall survive
the closing of this transaction and shall not merge into the closing documents.
8. INTENTIONALLY OMITTED.
9. SELLER'S REPRESENTATIONS AND COVENANTS. Seller hereby warrants and
represents to Buyer that as of the Effective Date and at the Closing:
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
8
9.1 TITLE. Seller will have good, indefeasible and insurable title
to the Property and no other person or entity has any claim, right, title,
interest or lien of any kind in, to or on said Property except as may otherwise
be shown on the Commitment and Survey.
9.2 AUTHORITY. Seller is authorized and empowered to enter into this
Agreement and perform all of its obligations under this Agreement and all
documents to be executed by Seller pursuant hereto; no consent of any third
party or governmental agency is required, and this Agreement constitutes a
legal, valid, and binding obligation of Seller enforceable in accordance with
its terms. The individuals signing this Agreement and all other documents
executed or to be executed pursuant hereto on behalf of Seller are and shall be
duly authorized to sign the same on Seller's behalf and to bind Seller thereto.
The transaction contemplated hereby will not result in a breach of or constitute
a default or permit acceleration of maturity under any indenture, mortgage, deed
of trust, loan agreement or other agreement to which Seller or the Property is
subject or by which Seller or the Property is bound. Neither the entering into
of this Agreement nor the conveyance of the Property by Seller will constitute
or result in a violation or breach by Seller of any judgment, order, writ,
injunction or decree issued against or imposed upon it, or will result in a
violation by Seller of any applicable law, order, rule or regulation of any
governmental authority.
9.3 LITIGATION. No litigation claims, actions, or proceedings are
pending or, to the best of Seller's knowledge (without any duty of independent
inquiry), are threatened against the Property or against Seller which could
reasonably be expected to have an adverse affect on the Property.
9.4 CONDEMNATION. Seller has not received any notice, nor does it
have any actual knowledge (without any duty of independent inquiry) of any
pending or contemplated (a) condemnation, eminent domain or similar proceeding
affecting the Property or any part thereof, (b) widening, change of grade or
limitation or use of streets abutting the Property, (c) special tax assessment
to be levied against the Property, or (d) change in the zoning classification of
the Property.
9.5 AGREEMENTS. Except as disclosed herein or otherwise provided in
writing or otherwise to Buyer hereof, Seller has entered into no agreements of
sale, options to purchase, leases, lease amendments, guarantees, or right of
first refusal with respect to any aspect of the Property.
9.6 DISCLOSURE. No representation or warranty by Seller contained in
this Agreement, nor any written statement or certificate furnished or to be
furnished by Seller to Buyer or its representatives in connection herewith or
pursuant hereto, contains or will contain any untrue statement of a material
fact. There are no representations or warranties made by Seller except as
specifically set forth in this Agreement.
9.7 UTILITIES. Seller warrants that sanitary sewer, storm water,
water, natural gas, electricity and telephone are available and have been
connected to the Property. Any and all
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
9
connection and "tap-in" fees have been paid.
9.8 PRESENT KNOWLEDGE WITHOUT INQUIRY. Seller hereby represents to
Buyer that Seller has disclosed to Buyer all material facts that materially
affect the present use of the Property of which Seller has current actual
knowledge without any obligation for further inquiry.
9.9 HAZARDOUS WASTE. Seller has not engaged in or permitted any
dumping, discharge, release, disposal, spillage or leakage (whether legal or
illegal, accidental or intentional) of Hazardous Substances, at, on, in or about
the Property, or any portion thereof. There is not present upon the Property, or
any portion thereof, any Hazardous Substances, or any structures, fixtures,
equipment or other objects or materials containing Hazardous Substances and no
tanks used for the storage of any Hazardous Substances above or below ground are
present or were at any time present on or about the Property. There is no
proceeding or inquiry by any state, federal or local authorities with respect to
the presence of Hazardous Substances on the Property or the migration thereof
from or to other property and Seller has not received any notice of any
violation of the environmental laws from the said authorities.
9.10 MATERIAL CHANGE. Seller shall promptly notify Buyer of any
material change in any condition with respect to the Property or of any event or
circumstance which makes any representation or warranty of Seller under this
Agreement untrue, inaccurate, or misleading in any material respect, or any
covenant of Seller under this Agreement incapable or less likely of being
performed, it being understood that Seller's obligation to provide notice to
Buyer shall in no way relieve Seller of any liability for a breach by Seller of
any of its representations, warranties or covenants under this Agreement.
9.11 REGULATORY COMPLIANCE; TAXES. The Property is now, or will be as
of the Closing Date, in compliance in all material respects with all applicable
zoning, land use, building, construction, subdivision and other local, state and
federal laws, ordinances and regulations and with all existing covenants,
conditions, restrictions and easements. Seller has paid all unemployment taxes
related to any employee of Seller, if any, in connection with said employee's
working on the Property.
9.12 NO WRITTEN NOTICE OF BREACH OF GOVERNMENTAL REQUIREMENTS. Seller
has received no written notice of any failure of Seller to comply with any
applicable governmental laws, statutes, ordinances or requirements in respect to
the use, occupation, operation, repair, maintenance and/or construction of the
Property, including, but not limited to, environmental, fire, health, safety,
zoning, subdivision and other land use requirements that have not been corrected
to the satisfaction of the appropriate governmental authority, and Seller has
received no written notice of, and has no knowledge of, any violations or
investigations relating to any such governmental requirement.
9.13 NO WRITTEN NOTICE OF BREACH OF COVENANTS. Seller has received no
written notice of any default or breach by Seller under any covenants,
conditions, restrictions, rights of way, any leases with the tenants or
easements that may materially affect Seller in respect to the Property or may
materially affect the Property or any portion thereof and to Seller's knowledge,
no such default or breach now exists.
9.14 GOVERNMENTAL CONSENTS. To the best of Seller's knowledge, there
are no permits, licenses or consents required by any governmental authority in
connection with the use, operation and/or occupancy of the Property except those
previously obtained by Seller and delivered to Buyer, and Seller knows of no
local improvement districts proposed which will affect the Property. Each of
such permits,
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
10
licenses and covenants is in full force and effect and good standing, and
neither Seller nor any agent or employee of Seller has received any notice of
any intention on the part of the issuing authority to cancel, suspend or revoke
any of such permits, licenses or consents.
9.15 LATENT DEFECTS. Seller is not aware of any concealed, hidden or
latent defects in the Property. To Seller's actual knowledge without any
obligation for further inquiry, the interior and exterior structure of the
Property are in a good state of repair, free of leaks, structural defects and
mold.
9.16 INSOLVENCY. No attachments, execution proceedings, assignments
for the benefit of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or threatened against Seller, nor has Seller any
intention of filing or commencing any such action or proceeding. Seller has not
made a general assignment for the benefit of creditors.
9.17 LEASES; LEASE MODIFICATION. All leases require the tenant to pay
all operating expenses relating to the Property on a pro rata basis, including,
without limitation, ad valorem taxes, utilities, insurance, and common area
maintenance charges, as those terms are more specifically set forth in the
Leases. The sole agreement between Seller and the tenants is set forth in the
Leases. Seller hereby agrees that it will not hereafter modify or otherwise
amend or terminate the Leases, or waive or diminish any rights under the Leases,
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld or delayed. Under the Leases, tenants occupy all net
rentable area as set forth in EXHIBIT "F." EXHIBIT "F" attached hereto lists all
Leases currently in effect with respect to the Property. The Leases have not
been amended or modified in any manner, except as set forth on EXHIBIT "F"
hereto. The Leases do not contain any option or right of first refusal to
purchase any property demised thereby or any portion of the Property, to extend
the terms thereof (except with respect to extension and renewal rights granted
to the tenants pursuant to the Leases), to lease additional space, to cancel or
terminate the Lease prior to the end of their terms, or any other extraordinary
provisions, except as set forth on EXHIBIT "F" hereto. The Leases are in good
standing and in full force and effect, and no rights or interests of the
landlord thereunder have been diminished, waived or released. All of landlord's
obligations under the Leases, including the obligation to finish or refinish
space to the specifications provided in the Leases and/or to provide or fund any
tenant improvement allowance or other concession, have been satisfied. No rent
or other amounts due under the Leases have been paid more than one (1) month in
prior to the date on which such rent or other amounts are due and payable under
the Leases. Neither the landlord nor the tenant under the Leases is in default
under the Leases. The tenants under the Leases are not entitled to any rent
abatement, free rent period or other future tenant improvement allowance or
concession, except as set forth on EXHIBIT "F" hereto. Except as set forth on
EXHIBIT "F" hereto, there are no commissions, leasing fees or other compensation
now or hereafter due or payable, or that could become due and payable, to any
person, firm, corporation or other part with respect to any of the Leases,
including, without limitation, the exercise by any tenant under any Lease of any
right of first offer or refusal, expansion right or renewal right. Except as set
forth on EXHIBIT "F" hereto, no security deposits have been paid or posted by
the tenants under the Leases. All tenant security deposits are in the form of
cash, and not in the form of a letter of credit, stock or any other form. Except
for Seller and the tenants under the Leases, there are no persons in possession
or occupancy of the Property or any part thereof, nor are there any persons who
have any possessory rights in respect to the Property or any part thereof.
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
11
9.18 COVENANTS. EXHIBIT "I" is a true, correct and complete copy list
of all Contracts and amendments and modifications thereof relating to the
Property and/or binding upon the Property owner. The Contracts have not been
amended or modified, except as set forth on EXHIBIT "I" hereto. There are no
defaults under any of the Contracts; and all of the Contracts are in good
standing and in full force and effect. All of the Contracts are terminable
without cost to Buyer on or before the Closing Date. Except for the Leases and
the Contracts, there are no agreements with any third party relating to the
Property or binding upon the Property owner.
9.19 CONTRACTS, LEASES AND INTANGIBLE PROPERTY. Seller owns all of
the landlord's interest in the Leases and the Property owner's interests in the
Contracts and the Intangible Property. The interest of Seller in the Contracts,
Leases and Intangible Property is free and clear of all encumbrances and has not
been assigned to any other person, except as reflected in the Commitment.
9.20 CONTRACTS.
(a) Seller, at Seller's sole cost and expense, shall maintain or cause to
be maintained the Property free from waste and neglect and in as good order and
repair as of the date hereof and shall keep and perform or cause to be performed
all obligations of the lessor under the Leases and all obligations of the
Property owner or its agents under the Contracts, to and including the Closing
Date or termination of this Agreement. On the Closing Date, Seller shall tender
possession of the Property to Buyer in the same condition the Property was in
when last inspected by Buyer, except for ordinary wear and tear, casualty loss
and condemnation.
(b) From the date of this Agreement to the Closing Date, Seller shall
maintain or cause to be maintained in full force and effect liability, casualty
and other insurance upon and in respect to the Property against such hazards and
in such amounts as are currently maintained and as may be required under any
Leases.
(c) From the date of this Agreement to the Closing Date or earlier
termination of this Agreement, Seller shall operate and manage the Property in
the same manner as it has been operated and managed heretofore, provided,
however, that during said period, without the prior written consent of Buyer,
Seller shall not do, suffer or permit, or agree to do, any of the following: (i)
enter into any transaction in respect to or affecting the Property out of the
ordinary course of business; (ii) sell, encumber, create or grant any interest
in the Property or any part thereof in any form or manner whatsoever, or
otherwise perform or permit any act which will diminish or otherwise affect
Buyer's interest under this Agreement or in or to the Property or which will
prevent or adversely affect Seller's full performance of its obligations
hereunder; (iii) enter into, amend, waive or diminish any rights under, or
terminate or extend, any contract or agreement (including, without limitation,
the Contracts) relating to the Property or any leases,
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
12
licenses or other occupancy agreements relating to the Property, or take any
action that could affect the title to the Property; or (iv) remove from the
Property any of the fixtures thereon or any of the Tangible Personal Property.
(d) Seller shall promptly deliver to Buyer any and all notices and/or
other written communications delivered to or received from (i) any tenant of the
Property, (ii) any party under any of the Contracts, and (iii) any governmental
authority. Seller shall deliver to Buyer prompt notice of the conduct or
occurrence of any inspections of the Property by any governmental authority.
All of Seller's representations, warranties, covenants and obligations
under this SECTION 9 shall survive the Closing without restriction or limitation
for two (2) years from the Closing Date.
10. BUYER'S REPRESENTATIONS. Buyer represents and warrants to Seller that:
10.1 AUTHORITY. Buyer is authorized and empowered to enter into
this Agreement and perform all of its obligations under this Agreement, no
consent of any third party or governmental agency is required, and this
Agreement constitutes a legal, valid, and binding obligation of Buyer
enforceable in accordance with its terms.
10.2 LITIGATION. There are no material claims, actions, suits,
proceedings or investigations pending, or to the actual knowledge of Buyer
threatened against Buyer which could reasonably be expected to materially impair
the ability of Buyer to fulfill and perform its obligations under this
Agreement.
11. CLOSING. The purchase and sale of the Property shall be closed in the
offices of the Title Company on a date to be agreed upon by Seller and Buyer,
which date shall be on or before the forty-fifth (45th) business day after the
Effective Date (the "CLOSING"). The date upon which the Closing shall occur
shall be referred to in this Agreement as the "CLOSING DATE". At Closing,
Seller, at Seller's expense, shall deliver to Buyer:
11.1 DEED. A Special Warranty Deed, in form reasonably
acceptable to Buyer and Seller, conveying good and indefeasible title in fee
simple to the Property, free and clear of any and all liens, encumbrances,
conditions, easements, assessments, restrictions, and other conditions except
for the following:
(1) Taxes for the year of Closing and for subsequent years not
yet due and payable, payment of which is expressly assumed
by Buyer; and
(2) The Permitted Exceptions, (which are deemed to include,
subject to Buyer's rights under SECTION 5.3 above): (i)
Declaration of Protective Covenants dated August 16, 1999
by and between XXL One, Ltd., Ltd. a Texas limited
partnership, and Alamo Concrete Products, Ltd., a Texas
limited partnership, which is recorded in
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
13
Volume 8102, Page 0993, of the Official Public Records of
Real Property of Bexar County, Texas; (ii) Reciprocal
Easement and Operation Agreement dated August 19, 1999 by
and between XXL One, Ltd., Ltd., a Texas limited
partnership, and Home Depot U.S.A., Inc., a Delaware
corporation, which is recorded in Volume 8102, Page 1036,
of the Official Public Records of Real Property of Bexar
County, Texas; (iii) Amendment to Reciprocal Easement and
Operation Agreement dated December 3, 1999, by and between
XXL One, Ltd., Ltd., a Texas limited partnership, Home
Depot U.S.A. Inc., a Delaware corporation, and IHOP Realty
Corp., a Delaware corporation, which is recorded in Volume
2000, Page 34329, of the Official Public Records of Real
Property of Bexar County, Texas; and (iv) Leases of the
portions of the Property to Xxxx Stores Texas, L.P., Shoe
Carnival, Inc., Dots, Inc., and Mattress Firm, Inc.).
11.2 TITLE POLICY. An Owner's Title Policy issued in the face amount
of the Purchase Price insuring good and indefeasible title to the Property in
Buyer (or Buyer's assignee or nominee) except for the Permitted Exceptions, and
all taxes for the year of Closing and subsequent years.
11.3 NON-FOREIGN AFFIDAVIT. An Affidavit of Seller certifying that
Seller is not a "FOREIGN PERSON" as defined in the Federal Foreign Investment
and Real Property Tax Act of 1980, and the 1984 Tax Reform Act, as amended.
11.4 CERTIFICATES OF OCCUPANCY; ESTOPPEL CERTIFICATES. Copies of: (i)
applicable final and unconditional Certificates of Occupancy for all four (4)
units (and, if applicable, the base building) granted by the City of San Antonio
that evidence the Property's conformity to applicable laws and regulations; (ii)
Estoppel Certificates executed by all four (4) tenants of the Property in form
and substance required under each tenant's Lease and consistent with each
respective Lease, and otherwise not raising or alleging (1) any default (or the
occurrence of any event that, with the giving of notice or passage of time, or
both, could result in a default) on the part of the landlord or tenant under
such Lease or any claims or defenses to the enforcement of such Lease by the
landlord thereunder, (2) any monetary issue or dispute relating to the Lease or
the premises demised thereby (including without limitation, any rent abatement,
concession, free rent, allowances for improvements, refurbishment or otherwise,
or other similar compensation in connection with such Lease, any setoffs,
deductions or credits against rent under such Lease, or any rebate, reduction or
waiver any amounts due from such tenant under such Lease), or (3) any material,
non-monetary issue or dispute relating to the Lease or premises demised thereby;
(iii) a certificate of insurance from each tenant, in compliance with each
tenant's respective Lease; and (iv) an estoppel certificate from the parties to
any reciprocal and/or operating easement agreement, to the extent said agreement
requires such parties to sign such as estoppel certificate. Seller represents
that attached hereto as EXHIBIT "G" are the current provisions of the Leases
governing each tenant's obligation to provide estoppel certificates.
11.5 SPECIAL WARRANTY ASSIGNMENT OF LEASES AND XXXX OF SALE OF
TANGIBLE
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
14
PERSONAL PROPERTY AND INTANGIBLE PROPERTY. A Special Warranty Assignment of
Leases and Xxxx of Sale of Tangible Personal Property and Intangible Property,
in a form reasonably acceptable to Buyer and Seller. Any concessions owed by
Seller to any tenant (e.g. finish out allowances owed by Seller to any third
party tenant on the Property, including without limitation Dots, Inc., and
Mattress Firm, Inc., per those tenant's respective Leases) willCin Seller's sole
discretionC either be paid to each such tenant before Closing, or credited to
Buyer at Closing.
11.6 TENANT NOTIFICATION LETTER. Tenant Notification Letters duly
executed by Seller and previously approved by Buyer, and dated as of the Closing
notifying Tenants that the Property has been sold to Buyer and that all of
Seller's right, title and interest to the respective lease has been assigned to
Buyer, and commencing immediately, all rent and other payments and notices under
the respective lease are to be paid and sent to Buyer.
11.7 The documents and materials listed on EXHIBIT "J" attached
hereto and made a part hereof.
11.8 OTHER DOCUMENTS. Such other documents and instruments as are
reasonably required by Buyer or the Title Company in connection with the
issuance of its Owner's Title Policy to Buyer or consummation of the transaction
contemplated by this Agreement.
11.9 CONDITIONS TO CLOSING. The obligation of Buyer to close the
transaction contemplated by this Agreement is further subject to and conditioned
upon, at Buyer's sole option, the satisfaction of all of the following;
(i) All representations and warranties of Seller contained in this
Agreement being true and correct at and as of the Closing Date;
(ii) Intentionally omitted.
(iii) The issuance by the Title Company of the Owner's Title Policy;
(iv) The due and timely performance, in all material respects, by the
Seller of all obligations and covenants of Seller to have been performed on
or prior to the Closing Date (including, without limitation, delivery of
any and all documents and materials to be delivered by Seller pursuant to
this SECTION 11);
(v) That all rent and other amounts due and payable under the Leases
as of the Closing Date have been paid, and the tenants under the Leases and
any guarantors of any of the Leases shall not be in default of such Leases
or applicable guaranties, and no tenant or guarantor shall have filed for
protection under any article or provision of any state or federal
bankruptcy or similar law or code; and
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
15
(vi) Not less than one hundred percent (100%) of the leasable floor
area of all buildings and tenant spaces located upon the Property shall be
subject to Leases, with the tenants thereunder being in occupancy of their
respective spaces and paying full rent under their respective Leases (which
full rent shall include the payment of base rent and any and all so-called
percentage rent or other rent or amounts based on a tenant's share of
so-called common area maintenance expenses, real estate taxes, utilities
and/or insurance premiums, costs and charges), without offset, abatement,
credit or reduction.
If any one or more of the conditions precedent set forth in this
SECTION 11.9 shall not be satisfied by the initially scheduled Closing Date
(i.e., the 45th day after the Effective Date), then Buyer, at its option and by
notice to Seller, may elect at any time thereafter to either terminate this
Agreement, without waiver or release of any of its remedies for default by
Seller under this Agreement, or to seek specific performance of this Agreement.
If this Agreement is terminated pursuant to this SECTION 11.9, then the Xxxxxxx
Money and any interest thereon shall forthwith be returned to Buyer, and all
other funds and documents theretofore delivered hereunder or deposited in escrow
by either party shall be forthwith returned to such party.
12. BUYER'S OBLIGATIONS AT CLOSING. At the Closing, Buyer shall deliver to
Seller the following:
12.1 PURCHASE PRICE. The Purchase Price, by wire transfer of
immediately available U.S. funds.
12.2 OTHER DOCUMENTS. Such other documents and instruments as
are reasonably required by the Seller or Title Company in connection with the
Closing, or in connection with the Title Company's issuance of the Owner's Title
Policy to Buyer.
To the extent not attached hereto, all documents of conveyance
to be furnished by the parties pursuant hereto shall be in form, execution and
substance reasonably satisfactory to Seller, Buyer and their respective
counsels, and shall be finalized (as to form and substance) prior to the
expiration of Buyer's Examination Period.
13. PRORATION. The items set forth below shall be prorated and
apportioned, without duplication, as of 11:59 p.m. of the day immediately
preceding the Closing Date, with Seller bearing all expenses with respect to the
Property and receiving the benefit of all income with respect to the Property
through and including the day immediately preceding the Closing Date, and Buyer
receiving the benefit of all income from the Property and being charged with all
expenses with respect to the Property on and after (and including) the Closing
Date. If, at Closing, Buyer is entitled to a net credit as a consequence of
prorations or adjustments pursuant to this subsection, then the net credit shall
be offset against the Purchase Price except as expressly provided otherwise
herein. The items to be prorated and, in certain instances, the method for
determining such prorations are as follows:
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
16
(i) All rent and other amounts due and payable (whether or not
collected) under the Leases for the calendar month in which the Closing
occurs shall be prorated, on a per diem basis, as of 11:59 p.m. of the day
immediately preceding the Closing Date, with Buyer receiving a credit in an
amount equal to the product of (1) the per diem amount of such rent and
other charges, and (2) the number of days from and including the Closing
Date until the last day of the month in which Closing occurs. Except as
expressly provided otherwise herein, rents and other sums in arrears will
not be prorated, but will be paid to Seller by Buyer if, as and when
collected by Buyer; provided, however, that Buyer shall have no affirmative
obligation to collect such delinquent rent or other sums in arrears for the
benefit of Seller but shall reasonably cooperate with Seller (at Seller's
cost and expense) in Seller's efforts to collect such sums. In no event,
however, shall Buyer or any affiliate of Buyer have any obligation to file
suit or seek eviction for or on account of any such delinquent rent or
other sums in arrears. The first monies received after Closing by Buyer
from each tenant of the Property who is in arrears at Closing as to rent or
other charges shall be applied (1) first to current rent and other charges
and obligations of such tenant under the tenant's respective lease arising
from and after the Closing Date, and (2) then to rent or other charges
which were in arrears on the Closing Date. Buyer shall promptly remit to
Seller, and Seller shall promptly remit to Buyer, all sums received after
Closing from tenants under the tenant's respective lease to which the other
party is entitled pursuant to the provisions hereof. Nothing contained
herein shall limit Seller's right to take all legal action (except eviction
or distrait) necessary against any tenants that are delinquent in the
payment of any amount to which Seller has any right prior to Closing.
(i) Percentage rent payable under each Lease for the percentage rent
year, or other applicable time period, in which the Closing occurs, shall
be prorated as of 11:59 p.m. of the day immediately preceding the Closing
Date on a per diem basis as and when such percentage rent is collected.
(i) Seller confirms that all of the Leases contain tenant
obligations to pay for taxes, common area expenses, operating expenses,
utilities, insurance premiums and costs and/or additional charges of some
other nature relating to the Property and/or certain portions thereof,
subject, however, to any limitations contained in the Leases (collectively,
the "CAM CHARGES"). To the extent provided in each tenant's respective
lease, tenants that are obligated to reimburse for CAM Charges pay
one-twelfth (1/12) of an annually budgeted amount per month (each a
"MONTHLY CAM REIMBURSEMENT PAYMENT") during each calendar year (except,
with respect to only real estate taxes and insurance premiums, for the
Lease with Xxxx, in which case Xxxx pays for its share of such real estate
taxes and insurance premiums upon presentation of the bills therefor). In
the month in which the Closing occurs, any of the Monthly CAM Reimbursement
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
17
Payments due and payable to Seller from such tenants (whether or not
collected) for CAM Charges shall be pro-rated between Seller and Buyer, on
a per diem basis, with Seller providing a credit to Buyer at Closing for
its share of those Monthly CAM Reimbursement Payments due and payable
before Closing by Seller, based on the number of days from and including
the Closing Date, to the end of the calendar month.
(i) Not less than ten (10) days prior to the Closing Date, Seller
shall (a) compare by written analysis (the "ANALYSIS") on a
tenant-by-tenant basis: (1) the actual CAM Charges incurred by Seller for
the period of time commencing as of the commencement date of each tenant's
Lease and ending on (and including) the Closing Date (the "RECONCILIATION
PERIOD"), which amount shall exclude any CAM Charges paid by Seller during
the Reconciliation Period that relate to any services, goods, materials
equipment or other matters provided prior to the Reconciliation Period
and/or with respect to which a tenant is not obligated under its lease to
pay its pro rata share (it being the understanding and agreement of Seller
that Seller shall pay any and all such excluded Cam Charges prior to
Closing), and (2) the actual Monthly CAM Reimbursement Payments due and
payable (regardless of whether collected) to Seller from each tenant under
the Leases for the Reconciliation Period, and (b) forward to Buyer for its
review and approval such comparison with reasonable documentation
supporting the actual CAM Charges (on a monthly basis), the Monthly CAM
Reimbursement Payments, and any differences between the same (which
analysis shall be deemed approved by Buyer if Seller does not receive from
Buyer a detailed objection to such analysis at least three (3) days before
Closing). Seller and Buyer acknowledge that real estate taxes in the
jurisdiction where the Property is located are paid in arrears (i.e., real
estate taxes attributable to calendar year 2003 are not due and payable
until January, 2004, and real estate taxes attributable to calendar year
2004 are not due and payable until January, 2005). Accordingly,
notwithstanding the foregoing, Seller acknowledges and agrees that the
actual CAM Charges incurred by Seller during the Reconciliation Period for
each tenant (a) shall not include any real estate taxes levied or assessed,
or attributable to, calendar year 2004, and (b) shall include, subject to
any limitations contained in the Leases, only a portion of calendar year
2003 taxes paid in 2004 in an amount equal to the product of (1) total 2003
real estate taxes, multiplied by (2) a fraction, the numerator of which
shall be the leasable area of the applicable tenant's leased premises and
the denominator of which shall be 55,066, multiplied by (3) a fraction, the
numerator of which shall be the number of days during calendar year 2003
for which such tenant is obligated under its Lease to pay its pro rata
share of real estate taxes attributable to the Property and the demoninator
of which shall be 365. At Closing, Seller and Buyer shall sign a schedule
prepared by Seller, consistent with the Analysis, that sets forth on a
tenant-by-tenant basis a reconciliation based upon those actual expenses
incurred by Seller and reimbursements due and payable to Seller as provided
above (each a "RECONCILIATION"). If a Reconciliation with respect to
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
18
a tenant shows that Seller was due and payable more Monthly CAM
Reimbursement Payments than CAM Charges have been incurred over the
Reconciliation Period ("EXCESS CAM RECEIPTS"), then Buyer shall receive a
credit against the Purchase Price in the amount of such Excess CAM
Receipts, and Buyer shall at Closing assume the obligation for (under the
Reconciliation) payment and thereafter be solely responsible for
reimbursing any tenant for any overages for their Monthly CAM Reimbursement
Payments incurred for the Reconciliation Period, and indemnify and hold
Seller harmless for any such claims, subject, however, in all events to the
following grammatical sentence. Additionally, if, notwithstanding the
foregoing, after Buyer and the tenants of the Property have reconciled CAM
Charges for the Reconciliation Period, it is determined that any such
tenants are due amounts in excess of the amounts determined by Seller and
Buyer as provided above, then Seller, immediately upon demand (and as long
as said amounts of reconciled CAM Charges are provided under each
respective Lease and are calculated pursuant to Generally Accepted
Accounting Principles), shall pay such excess to Buyer. In the event that
the Reconciliation schedule shows any cases where Seller has incurred a
greater amount in CAM Charges than Monthly CAM Reimbursement Payments
received from any tenant, then any amounts received by Buyer from the
applicable tenants with respect to such overpayment by Seller shall be
applied: (1) first to current rent and other charges and obligations of
such tenant under the respective lease arising from and after the Closing
Date, and (2) then paid to Seller.
(i) Seller confirms that the tenant known as Mattress Firm did not
commence the payment of Monthly CAM Reimbursement Payments under its Lease
until January 11, 2004, and that all other tenants of the Property
commenced payment of their Monthly CAM Reimbursement Payments under their
respective Leases prior to January 1, 2004. At Closing, Buyer shall receive
a credit against the Purchase Price in the amount of $611.51 (9,000 X $2.48
X 10/365) for real estate taxes attributable to the Mattress Firm space for
the period of time commencing January 1, 2004 and ending (and including)
January 10, 2004 (the "Mattress Firm Tax Proration"). Upon the issuance of
the final real estate tax xxxx for calendar year 2004, Seller and Buyer
shall jointly determine the amount of real estate taxes attributable to the
Mattress First space for the period of time commencing January 1, 2004 and
ending (and including) January 10, 2004, which amount shall be equal to the
product of (1) the total real estate taxes levied and assessed with respect
to the Property during calendar year 2004, multiplied by (2) a fraction the
numerator of which shall be the leasable area of the Mattress Firm space
and the denominator of which shall be 55,066, multiplied by (c) 10/365 (the
"Actual Mattress Firm Taxes"). If the Mattress Firm Tax Proration exceeds
the Actual Mattress Firm Taxes, then Buyer promptly shall pay such excess
to Seller. If the Mattress Firm Tax Proration is less than the Actual
Mattress Firm Taxes, then Seller promptly shall pay such difference to
Buyer.
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
19
(i) Any and all storm water charges, if any, water charges, if any,
and sewer rents, if any, that are due and payable prior to the Closing
shall be paid by Seller as of the Closing, and Seller shall receive a
credit for any such amounts attributable to periods of time from and after
the Closing Date. Storm water charges, water charges and sewer rents, if
any, levied or assessed upon, or attributable to, the Property and not due
and payable prior to the Closing shall be apportioned on a per diem basis,
with Buyer receiving a credit at Closing for any such amounts attributable
to any period of time prior to the Closing Date that have not been paid as
of the Closing Date. Any apportionment of stormwater charges to be made
with respect to an applicable year for which stormwater rate have not yet
been fixed, shall be estimated upon one hundred percent (100%) of the most
recent storm water rate relating to the Property. Any unfixed gas,
electrical, water meter charges, if any, sewer rent and other utility
charges in connection therewith, shall be estimated on the basis of the
last meter reading to occur on or as close in time as possible to the
Closing Date. Seller agrees to use its best efforts to have all such
utilities meters read as of the Closing Date and the utilities transferred
to Buyer.
(i) Except as expressly set forth herein to the contrary, all
special assessments applicable to the Property for any period of time prior
to the Closing Date shall be prorated at Closing such that Buyer receives a
credit against the Purchase Price in the amount of such special assessment
applicable to the period of time prior to the Closing Date.
(i) All alterations, installations, decorations and other tenant
improvement work required to be performed prior to the Closing Date by the
landlord under the Leases and all tenant improvement allowances and other
concessions which the landlord under the Leases is obligated to pay to
tenants of the Property prior to the Closing Date, including, without
limitation, the allowances, matters and costs described on EXHIBIT "F"
attached hereto, have been, or by the Closing Date will be, completed and
are, or by the Closing Date will be, paid in full by Seller. At Closing,
Seller shall give Buyer a credit against the Purchase Price for the
aggregate amount of all alterations, installations, decorations and other
tenant improvement work required to be performed by the landlord under the
Leases after the Closing Date and all tenant improvement allowances and
other concessions which the landlord under the Leases is obligated to pay
to tenants after the Closing Date, including, without limitation, those
costs described on EXHIBIT "F" attached hereto.
(i) All leasing commissions, fees and/or other compensation due any
broker or other person or party with respect to any Leases entered into
prior to the Closing and due and payable on or before the Closing Date
shall be paid in full by Seller prior to Closing
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
20
(other than renewals or lease amendments after Closing, which are hereby
excluded from this SUBSECTION (ix)).
(i) Payments under any Contracts which are assigned to Buyer.
(i) The amount of all rental security deposits in effect as of the
Closing Date, including all interest charges required by law or other
agreement to be paid thereon, shall be paid by Seller to Buyer.
(i) Seller represents to Buyer, and Buyer acknowledges such
representation, that all taxes on the Property are paid by the respective
tenants, pursuant to the terms of each tenant's respective lease, either
from monthly escrow accounts or by reimbursement to the landlord upon
presentation of the applicable tax xxxx. At or before Closing, Seller will
cause all real estate ad valorem taxes levied or assessed during, or
attributable to, calendar year 2003 to be paid in full. Additionally,
Seller represents that all so-called "rollback" taxes, if any, relating to
the Property have been paid in full, or, if not so paid, shall be paid in
full prior to the Closing.
(b) Seller and Buyer shall jointly prepare a preliminary closing statement
(the "PRELIMINARY CLOSING STATEMENT") on the basis, as provided above, of the
Leases, assigned Contracts, real estate taxes and other sources of income and
expense for the month in which the Closing occurs (including CAM Charges), and
shall deliver such Preliminary Closing Statement to the Title Company on or
prior to the Closing Date. The Preliminary Closing Statement and the
apportionments and/or prorations reflected therein shall be based upon actual
figures to the extent available. If any of the apportionments and/or prorations
cannot be calculated accurately based on actual figures on the Closing Date,
then the same shall be calculated based on Seller's and Buyer's good faith
estimates thereof, subject to reconciliation as hereinafter provided.
(c) If there is an error on the Preliminary Closing Statement discovered
within one (1) year after the Closing Date, or, if after the actual figures are
available as to any items that were estimated on the Preliminary Closing
Statement, it is determined that any actual proration or apportionment pursuant
to the terms of this Agreement varies from the amount thereof reflected on the
Preliminary Closing Statement, then the proration or apportionment shall be
adjusted based on the actual figures within sixty (60) days after discovery of
such error or determination of such actual figures, as the case may be. Seller
and Buyer agree that the reproration of real estate taxes for a particular real
estate tax year shall not occur until all final bills for such tax year have
been issued. Upon issuance of such final tax bills, the amount of such xxxx for
which Seller shall be responsible shall be the amount of such final tax xxxx,
multiplied by a fraction, the numerator of which shall be the number of days
during such tax year that Seller owned the Property, and the denominator of
which shall be 365; and the amount of such xxxx for which
/s/ JL
/s/ [ILLEGIBLE]
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
21
Buyer shall be responsible shall be the amount of such final tax xxxx,
multiplied by a fraction, the numerator of which shall be the number of days
during such tax year that Buyer owned the Property, and the denominator of which
shall be 365. Either party owing the other party a sum of money based on such
subsequent proration(s) shall promptly pay said sum to the other party.
(d) The provisions of this SECTION 13 shall survive Closing and delivery
of the Special Warranty Deed for two (2) years after the Closing Date.
14. DEFAULT AND SPECIFIC PERFORMANCE. On the failure of Buyer to perform
under this Agreement for any reason other than a Seller default hereunder or
failure of a condition precedent, Seller shall be entitled, as its sole and
exclusive remedy under this Agreement, at law and in equity, and as liquidated
damages, to terminate this Agreement and retain all Xxxxxxx Money. In the event
of Seller's default hereunder or Seller's failure to perform under this
Agreement for any reason, Buyer, as its sole and exclusive remedy, shall be
entitled to either: (i) terminate this Agreement and recover all amounts on
deposit in the Escrow Account plus Buyer's out-of-pocket costs and expenses
suffered or incurred in connection with the transaction contemplated by this
Agreement; or (ii) obtain specific performance by Seller. WITHOUT LIMITING ANY
OF THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, THE FOREGOING
PROVISIONS OF THIS SECTION 14 SHALL BE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE
TO BUYER FOR ANY DEFAULT HEREUNDER BY SELLER AND SHALL BE THE SOLE AND EXCLUSIVE
REMEDIES AVAILABLE TO SELLER FOR ANY DEFAULT HEREUNDER BY BUYER. BUYER IS
EXPRESSLY FORBIDDEN FROM FILING ANY LIS PENDENS AGAINST THE PROPERTY, AND BUYER
ACKNOWLEDGES THAT IF BUYER FILES ANY LIS PENDENS AGAINST THE PROPERTY, THAT SUCH
ACTION WILL IMMEDIATELY CAUSE IRREPARABLE HARM TO SELLER AND ALSO CONSTITUTES A
DEFAULT BY BUYER UNDER THIS CONTRACT. Seller and Buyer specifically acknowledge
that failure to comply with the requirements set forth in SECTION 15 is
considered a condition of default and the non-defaulting party has the right
(but not the obligation) to terminate this Agreement.
15. RELATED AGREEMENT. Intentionally omitted.
16. FUTURE OPERATIONS. From the date of this Agreement until the Closing
or earlier termination of this Agreement, Seller will promptly advise Buyer of
any litigation, arbitration or administrative hearing that arises, or is
threatened, concerning the Property of which Seller, without any duty of
independent inquiry, has notice.
17. REAL ESTATE COMMISSION. Seller hereby indemnifies and holds Buyer
harmless from any and all real estate commissions, claims for such commissions
or similar fees on this transaction arising in any manner out of any commitment
or promise or agreement made by Seller. Buyer hereby indemnifies and holds
Seller harmless from any and all real estate commissions, claims for such
commissions or similar fees on this transaction arising in any manner out of any
commitment or promise or agreement made by Buyer, except with respect to the
Brokers. Notwithstanding this SECTION 17, Seller shall pay a real estate
brokerage commission, pursuant to separate agreement, split between Xxxx Xxxxx
and Xxxx Xxxxxxx (the "BROKERS").
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
22
18. SURVIVAL. All terms, representations, covenants, warranties and
conditions of Buyer and Seller under this Agreement shall survive, and continue
in full force and effect and shall be enforceable after, the Closing.
19. CLOSING COSTS. Notwithstanding anything to the contrary contained
herein, the Closing Costs shall be paid as follows:
BY SELLER:
(a) Title insurance examination and premium for the Owner's
Policy of Title Insurance;
(b) Preparation of Special Warranty Deed;
(c) One-half (2) of the escrow fee, and all of the
recording fees for the Special Warranty Deed and
removal of any existing encumbrances;
(d) The actual reasonable cost of an appraisal of the
Property obtained by Buyer, not to exceed Twelve
Thousand Five Hundred Dollars ($12,500.00);
(e) The actual reasonable cost of the "RELIANCE LETTERS"
described in SECTION 5.5 of this Agreement;
(f) Seller's attorney's fees;
(g) Costs to remove any exceptions that are not Permitted
Exceptions; and
(h) All State, County and local transfer/conveyance taxes.
BY BUYER:
(a) Preparation of Mortgage, Deed or Trust or other
applicable financing instruments, if any;
(b) All recording fees for all Buyer's documents other than
the Special Warranty Deed;
(c) One-half (2) of the escrow fee;
(d) Any engineering reports, environmental reports,
appraisals, or other reports or studies required by
Buyer;
(e) The As-Built Survey and the survey deletion fee and all
other
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
23
amendments to the Owner Policy of Title Insurance; and
(f) Buyer's attorneys' fees.
All other costs and expenses shall be allocated between Buyer and Seller in
accordance with the customary practice in the County in which the Property is
situated.
20. INTENTIONALLY DELETED.
21. CONFIDENTIALITY. Buyer and its representatives shall hold in strictest
confidence all data and information, including Purchase Price, obtained with
respect to the Property, whether obtained before or after the execution and
delivery hereof, and shall not use any data or information for purposes
unrelated to this Agreement or disclose the same to others except as expressly
permitted hereunder. The preceding sentence shall not be construed to prevent
Buyer from disclosing to its agents, consultants, accountants, attorneys,
advisors, employees and lenders such information with respect to the Property as
is necessary for such agents, consultants, accountants, attorneys, advisors,
employees and lenders to perform their designated tasks in connection with the
acquisition, inspection, analyses and/or financing of the Property, so long as
the Buyer advises such agents, consultants, accountants, attorneys, advisors,
employees and lenders to keep such information confidential. However, Buyer
shall not have this obligation concerning information which: (a) is published or
becomes publicly available through no act of Buyer; or (b) is rightfully
received from a third party; or (c) is required to be disclosed by law or a
court or other binding order. In the event this Agreement is terminated or
Buyer fails to perform hereunder, Buyer shall promptly return to Seller any
statements, documents, schedules, exhibits, or other written information
obtained from Seller in connection with this Agreement or the transactions
contemplated hereby (including all information which was provided to agents,
consultants, accountants, attorneys, advisors, employees and/or lenders). In the
event of a breach or threatened breach by Buyer, or Buyer's agents, consultants,
accountants, attorneys, advisors, employees and/or lenders of SECTION 21, Seller
shall be entitled to seek injunctive relief restraining Buyer and/or its agents,
consultants, accountants, attorneys, advisors, employees and lenders from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach. The terms of
this Section 21 automatically shall expire and be null and void upon Closing.
22. CONDEMNATION. If prior to Closing, less than five percent (5%) of the
Land is condemned or taken by eminent domain by any authority (a
"CONDEMNATION"), then this Agreement shall not terminate, but shall remain in
full force and effect, and Seller shall assign or pay to Buyer at Closing,
Seller's interest in and to any condemnation award actually received by, or to
be paid to (if not received by Closing), Seller. In the event of a taking by
condemnation or similar proceeding of five percent (5%) or more of the Land (or
any threat thereof), or, notwithstanding the foregoing, if (i) any such
Condemnation adversely affects the access, visibility, or parking of the
Property or any part thereof, (ii) any portion of the building located upon the
Land shall be the subject of Condemnation proceedings, (iii) as a result of and
after such Condemnation proceedings, the Property will be in violation of
applicable laws, including, without limitation, zoning ordinances and parking
codes, (iv) any tenant under its lease has the right to terminate its lease in
whole or in part, or to xxxxx or reduce rent payable under its lease,
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
24
as a result of such Condemnation, or (v) such Condemnation involves the
equivalent of more than Fifty Thousand Dollars ($50,000), then Seller agrees to
promptly notify Buyer thereof, and either Seller or Buyer may terminate this
Agreement by giving written notice thereof to the other party prior to the
Closing Date. If neither party terminates the Agreement because of a
Condemnation, Seller shall assign or pay to Buyer, at Closing, Seller's interest
in and to any condemnation award actually received by, or to be paid to (if not
paid by Closing), Seller. If, after Closing Seller shall receive any
condemnation award, the Seller immediately shall pay the same to Buyer.
23. CASUALTY LOSS. Prior to the Closing, and notwithstanding the pendency
of this Agreement, the entire risk of loss or damage by fire or other casualty
shall be borne and assumed by Seller, except as otherwise provided in this
SECTION 23. If, prior to the Closing, any part of the Project is damaged or
destroyed by fire or other casualty, Seller shall immediately notify Buyer of
such fact. If such damage or destruction is "MATERIAL", Buyer shall have the
option to terminate this Agreement upon written notice to the Seller given not
later than twenty (20) days after receipt of Seller's notice. For purposes
hereof, "MATERIAL" shall be deemed to be any uninsured damage or destruction to
the Project, and/or any damage or destruction (i) where the cost of repair or
replacement is estimated to be Fifty Thousand Dollars ($50,000) or more or shall
take more than ninety (90) days to repair, in Buyer's good faith judgment, or
(ii) which allows any tenant to xxxxx or reduce its rent or any other amount
payable under its lease or to terminate its lease in whole or in part; provided,
however in the case of uninsured damage or destruction, Seller may, at Seller's
option, elect to repair such damage and destruction and keep this Agreement in
full force and effect in which event the Closing shall be extended for up to
ninety (90) days for the purpose of Seller's completing the repairs (which shall
be to Buyer's reasonable satisfaction). If this Agreement is so terminated, the
Xxxxxxx Money and all accrued interest shall be immediately paid to Buyer and
this Agreement shall be rendered null and void. If Buyer does not exercise this
option to terminate this Agreement, Seller shall assign and turn over, and Buyer
shall be entitled to receive and keep, all insurance proceeds payable to it with
respect to such destruction (which shall then be repaired or not at Buyer's
option and cost), and Seller shall pay over to Buyer an amount equal to the
deductible amount and any required co-insurance payment with respect to the
insurance and the parties shall proceed to the Closing pursuant to the terms
hereof without modification of the terms of this Agreement and without any
reduction in the Purchase Price. If the damage is not material, Seller shall
repair such damage, at its expense, and the parties shall proceed to the Closing
pursuant to the terms hereof without modification of the terms of this Agreement
and without any reduction in the Purchase Price, but the Closing shall be
extended up to ninety (90) days for the purpose of Seller completing the repairs
(which shall be to Buyer's reasonable satisfaction). If Buyer does not elect to
terminate this Agreement by reason of any casualty, Buyer shall have the right
to participate in any adjustment of the insurance claim.
24. ENTIRE AGREEMENT. This written Agreement constitutes the entire and
complete agreement between the parties hereto. It is expressly understood that
there are no verbal understandings or agreements which may change the terms,
covenants and conditions herein set forth, and that no modification of this
Agreement and no waiver of any of the terms and conditions shall be effective
unless made in writing and duly executed by the Seller and Buyer.
25. BINDING EFFECT. All covenants, agreements, representations, warranties
and provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
25
and their respective successors and assigns.
26. CONTROLLING LAW; VENUE. This Agreement has been made and entered into
under the laws of the State of Texas, and said laws shall control the
interpretation thereof. Venue under this Agreement is San Antonio, Bexar County,
Texas.
27. INTENTIONALLY DELETED.
28. TIME. Time is of the essence of this Agreement; however, if the final
date of any period which is set out in any provision of this Agreement falls on
a Saturday, Sunday or legal holiday under the laws of the United States or the
State of Texas, then, in such event, the time of such period shall be extended
to the next day which is not a Saturday, Sunday or legal holiday. "BUSINESS DAY"
means any day that falls on a Saturday, Sunday or legal holiday under the laws
of the United States or the State of Texas.
29. INDEMNIFICATION.
29.01 INDEMNIFICATION OF SELLER. After Closing, Buyer agrees to
indemnify and hold harmless Seller from and against any and all claims,
liabilities, causes of action, damages and expenses which are caused by or
arise out of (a) any breach or default in the performance by Buyer of any
covenant or agreement contained in this Agreement, or (b) which first
accrue or arise after the Closing and are caused by (i) any breach or
default in the performance by Buyer of any covenant or term or provision to
be performed by Buyer as landlord under any of the Leases first accruing or
arising after Closing, or (ii) any breach or default in the performance by
Buyer of any covenant or term or provision to be performed by Seller under
any service contract which Buyer agrees to assume in writing, together with
any and all actions, suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable legal and accounting fees) incident to
any of the foregoing, or (iii) arise out of any material inaccurate
representation of Buyer made herein, or the material breach of any
warranty, covenant or agreement of Buyer made pursuant hereto.
29.02 INDEMNIFICATION OF BUYER. After Closing, Seller agrees to
indemnify and hold harmless Buyer from and against any and all claims,
liabilities, causes of action, damages and expenses which are caused by or
arise out of (a) any breach or default in the performance by Seller of any
covenant or agreement contained in this Agreement, or (b) which accrue or
arise after the Closing and are caused by (i) any breach or default in the
performance by Seller of any covenant or term or provision to be performed
by Seller as landlord under any of the Leases prior to Closing, or (ii) any
breach or default in the performance by Seller of any covenant or term or
provision to be performed by Seller under any service contract prior to
Closing whether or not assumed by Buyer, together with any and all actions,
suits, proceedings, claims, demands, judgments, costs and expenses
(including reasonable legal and accounting fees) incident to any of the
foregoing, or (iii) any leasing brokerage fee or commission that is, or
becomes, payable as a result of any Lease, or renewal of said Lease; (iii)
arise out of any material inaccurate representation of Seller made herein,
or the material breach of any warranty, covenant or agreement of Seller
made pursuant hereto.
30. ASSIGNMENT. Buyer shall have the right to assign its rights and
obligations under
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
26
this Agreement, by giving prior written notice to Seller, to any entity owned or
controlled by Buyer, Inland Retail Real Estate Trust, Inc., or Inland Retail
Real Estate Limited Partnership, provided such assignee expressly assumes each
and every obligation of Buyer hereunder. Buyer shall have the right to assign
its rights and obligations under this Agreement to a non-controlled or non-owned
entity or individual(s), but only with the express written consent of Seller,
which consent shall not be unreasonably withheld, conditioned or delayed,
provided such assignee expressly assumes each and every obligation of Buyer
hereunder. Seller may not assign this Agreement without Buyer's consent.
31. NOTICES. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be sent by either facsimile
with confirmed receipt and forwarded on the date of transmission by another
means of delivery, or mailed by certified or registered mail, postage prepaid,
or overnight carrier, addressed or faxed as follows:
SELLER:
XXL ONE, LTD., a Texas limited partnership
c/o Development Strategies Texas, Inc.
Attention: Xx. Xxxxx X. Xxxxxxx
President
X.X. Xxx 000000
Xxx Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxx00@xxxxxx.xxx
With a Copy To:
Xxxxx Law Firm, P.L.L.C.
Attention: Xxxxxxx X. Xxxxx Xx., Esq.
Parkside, Suite 290
0000 Xxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxx.xxx
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
27
BUYER:
Inland Real Estate Acquisitions, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy To:
Xx. Xxxx Xxxxx
Investment Division
Coldwell Banker Commercial
Xxx Xxxxxxxxx Associates
000 Xxxx Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
FACSIMILE: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
or in each case to such other address or facsimile numbers as either party may
from time to time designate by giving notice in writing to the other party. All
notices shall be deemed delivered and received (a) two (2) business days after
deposit in the mail if sent by certified mail, (b) one (1) business day after
deposit if sent by overnight carrier, or (c) on the date of transmission if
sent by facsimile.
32. FIRPTA WITHHOLDING TAX. Seller represents and warrants that it is not
a foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined in the Internal Revenue Code and regulations issued
thereunder, and Seller agrees to execute, acknowledge and deliver to Buyer at
Closing a certification of non-foreign status and any form as may be required by
the Internal Revenue Code of the regulations issued thereunder.
33. COUNTERPARTS; SIGNATURES. This Agreement may be executed in as many
counterparts as may be required and it shall be sufficient that signature of
each party appear on one or more
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
28
of such counterparts. All counterparts shall collectively constitute a single
agreement. A facsimile signature shall have the same force and effect as an
original signature.
34. TAX FREE EXCHANGE. The parties shall have the right to consummate the
transaction contemplated by this Agreement in whole or in part as a tax deferred
exchange pursuant to Section 1031 of the Internal Revenue Code, provided that
(i) the other party will not be required to incur any costs as a result of such
like-kind exchange, (ii) the Closing Date shall not be adjourned by reason
thereof, and (iii) the other party will incur no expense, liability or
obligation, in connection with said structuring, other than acknowledging and
consenting to exchanging party's assignment in connection with such exchange. In
the event either party so elects to do so, the other agrees that; (a) the first
party may assign its rights under this agreement to a qualified intermediary as
defined in the U.S. Treasury regulations promulgated under Section 1031 of the
Internal Revenue Code; (b) such Intermediary shall acknowledge such assignment
prior to the closing of the transaction contemplated by this Agreement; and (c)
notwithstanding such assignment, neither party shall be required to hold title
to any other real property nor be subjected to any liability with respect to
such exchange. Any such assignment by either party shall have no effect on
either party's obligations under this Agreement. Seller and Buyer acknowledge
that if the Property is identified by either party as "RELINQUISHED PROPERTY",
that it is the desire and intention of that party to exchange the Property for
property of a "LIKE KIND" in an exchange qualifying as a deferred tax-free
exchange under Section 1031 of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder, in effect as of the Effective Date. The parties
agree to use reasonable efforts to cooperate with each other in attempting to
implement such exchange.
35. BUYER'S ACKNOWLEDGMENT. Buyer acknowledges that Seller has advised
Buyer to seek the advice of independent counsel and Buyer has had the
opportunity to do so before signing this Agreement.
36. NO MEMORANDUM. Seller and Buyer hereby acknowledge that neither this
Agreement nor any memorandum or affidavit thereof nor any lis pendens, or any
other similar document shall be recorded of public record in Bexar County,
Texas, or any other county in Texas. Should Buyer ever record or attempt to
record this Agreement, or a memorandum or affidavit thereof, or any lis pendens,
or any other similar document, then, notwithstanding anything herein to the
contrary, said recordation or attempt at recordation shall constitute a default
by Buyer hereunder, and, in addition to the other remedies provided for herein,
Seller shall have the express right to terminate this Agreement by filing a
notice of said termination in the proper place for said filing.
37. MUTUAL WAIVER OF CERTAIN TYPES OF DAMAGES. Buyer and Seller agree to
and do hereby waive and relinquish any and all rights to assert, claim or be
awarded consequential, exemplary or punitive damages against any other party
hereto or any of such party's officers, directors, partners, trustees, agents,
employees or representatives in connection with any cause of action arising out
of this Agreement or the Property.
38. WAIVER OF CONSUMER RIGHTS. Buyer and Seller have knowledge and
experience in financial and business matters that enable them to evaluate the
merit and risks of the transaction contemplated hereby. Buyer and Seller are
not in disparate bargaining positions vis-a-vis one
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
29
another and, with respect to any matters pertaining to this Agreement and the
transaction contemplated hereby, BUYER, AND SELLER HEREBY WAIVE, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS, BENEFITS AND REMEDIES
UNDER THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT SET FORTH IN
SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE, A LAW THAT
GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. THE FOREGOING WAIVER HAS BEEN
MADE AND CONSENTED TO VOLUNTARILY BY BUYER AND SELLER AFTER THEIR CONSULTATION
WITH ATTORNEYS OF THEIR OWN SELECTION.
39. FURTHER ASSURANCES. Seller and Buyer each agree to do, execute,
acknowledge and deliver all such further reasonable acts, instruments and
assurances and to take all such further reasonable action before or after the
Closing as shall be necessary or desirable to fully carry out this Agreement and
to fully consummate and effect the transactions contemplated hereby.
40. NO THIRD PARTY BENEFITS. This Agreement is for the sole and exclusive
benefit of the parties hereto and their respective successors and assigns, and
no third party are intended to or shall have any rights hereunder.
41. SEVERABILITY. If any provision or provisions in this Agreement is
found by a court of law to be in violation of any applicable local, state or
federal ordinance, statute, law, administrative or judicial decision, or public
policy, and if such court should declare such portion, provision or provisions
of this Agreement to be illegal, invalid, unlawful, void or unenforceable as
written, then it is the intent both of Seller and Buyer that such portion,
provision or provisions shall be given force to the fullest possible extent that
they are legal, valid and enforceable that the remainder of this Agreement shall
be construed as if such illegal, invalid, unlawful, void or unenforceable
portion, provision or provisions were not contained therein, and that the
rights, obligations and interest of Buyer and Seller under the remainder of this
Agreement shall continue in full force and effect.
42. LITIGATION. In the event of litigation between the parties with
respect to the Property, this Agreement, the performance of their respective
obligations hereunder and/or the effect of a termination under this Agreement,
the losing party shall pay all costs and expenses incurred by the prevailing
party in connection with such litigation, including, but not limited to, court
costs and reasonable attorney's fees.
43. INTERPRETATION.
(a) The headings and captions herein are inserted for convenient
reference only and the same shall not limit or construe the paragraphs or
Sections to which they apply or otherwise affect the interpretation hereof.
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
30
(b) The terms "hereby," "hereof," "hereto," "herein," "hereunder"
and any similar terms shall refer to this Agreement, and the term
"hereafter" shall mean after, and the term "heretofore" shall mean before,
the date of this Agreement.
(c) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders, and words importing the
singular number shall mean and include the plural number and vice versa.
(d) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), trusts, corporations and
other legal entities, including public bodies, as well as natural persons.
(e) The terms "include," "including" and similar terms shall be
construed as if followed by the phrase "without being limited to."
(f) This Agreement shall not be construed more strictly against one
party than against the other merely by virtue of the fact that this
Agreement has been prepared primarily by counsel for one of the parties
hereto, it being recognized that both Seller and Buyer (and their
respective counsels) have contributed substantially and materially to the
preparation of this Agreement.
EXECUTED by Buyer this 19th day of February, 2004, in multiple
counterparts, each of which shall have the force and effect of an original.
SELLER:
XXL ONE, LTD., A TEXAS LIMITED PARTNERSHIP
BY: DEVELOPMENT STRATEGIES TEXAS, INC.
a Texas corporation, its General Partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Monrich
President
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Title: Authorized Agent
--------------------------
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
31
LIST OF EXHIBITS
Exhibit "A"- LAND DESCRIPTION
Exhibit "B"- INTENTIONALLY OMITTED
Exhibit "C"- IMPROVEMENTS - PLANS & SPECIFICATIONS
Exhibit "D"- TANGIBLE PERSONAL PROPERTY
Exhibit "E"- INTANGIBLE PROPERTY
Exhibit "F"- LEASES AND LEASE RELATED INFORMATION
Exhibit "G"- LEASE ESTOPPEL CERTIFICATE PROVISIONS
Exhibit "H"- DUE DILIGENCE CHECKLIST
Exhibit "I" - CONTRACTS
Exhibit "J" - LIST OF ADDITIONAL CLOSING DOCUMENTS
Purchase and Sale Agreement
XXL One, Ltd., as Seller
Inland Real Estate Acquisitions, Inc., as Buyer
/s/ JL
/s/ [ILLEGIBLE]
32
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
[SEE ATTACHED]
Purchase and Sale Agreement
XXL One, Ltd, as Seller
Inland Real Estate Acquisitions, Inc., as Buyer /s/ JL
/s/ [ILLEGIBLE]
33
EXHIBIT A
LEGAL DESCRIPTION
XXX 0, XXXXX 0, XXX XXXX XXXXX 17550, ALISON'S CORNER SUBDIVISION, IN THE CITY
OF SAN ANTONIO, BEXAR COUNTY, TEXAS ACCORDING TO PLAT THEREOF RECORDED IN
VOLUME 9544, PAGE 000, XXXX XXX XXXX XXXXXXX XX XXXXX XXXXXX, XXXXX
XXL XXX, XXX, XXXXX XXXXX XXXXX 0 /s/ JL
/s/ [ILLEGIBLE]
EXHIBIT B
[INTENTIONALLY DELETED]
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT C
IMPROVEMENTS
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT C
IMPROVEMENTS
INCLUDING ALL IMPROVEMENTS CONSISTING OF APPROX. 55,066 SQ.FT. RETAIL BUILDING
CONSTRUCTED OUT OF CONCRETE TILT WALL WITH THE DESIGNATED ROOF SYSTEM AND
INCLUDING ALL REQUIRED UTILITY SERVICES REQUIRED TO SERVICE THE NEEDS OF THE
RETAIL TENANTS IN PLACE LOCATED AT 0000 XXXXXXXXXX XXXXX, XXX XXXXXXX XXXXX
00000 ON APPROX. 4.802 ACRES (209,159 SQ.FT.) OF LAND ALSO KNOWN AS XXX XXX,
XXXXX 0, XXX 00000 CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS
XXL ONE, XXX, XXXXX XXXXX XXXXX 0 /s/ [ILLEGIBLE]
/s/ JL
EXHIBIT D
TANGIBLE PERSONAL PROPERTY
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT E
INTANGIBLE PROPERTY
1. All licenses, registrations, certificates, permits, approvals and other
governmental authorizations relating to the construction, operation, use or
occupancy of the Property and the buildings and other improvements located
thereon, or any portion thereof.
2. All of Assignor's right, title and interest in and to all logos, designs,
trade names, trademarks, service marks, copyrights and other intangible personal
property relating to the Property, including, without limitation the name
Alison's Corner, and any other name or names by which the Property is referred
or known;
3. All of Assignor's right, title and interest in and to all warranties and
guarantees, if any, relating to the personal property located on the Property or
in the buildings and other improvements located thereon; and
4. All of Assignor's right, title and interest in and to all as-built plans
and specifications, construction drawings, and engineering plans and studies
relating to the Property.
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT F
LEASES AND LEASE RELATED INFORMATION
/s/ JL
/s/ [ILLEGIBLE]
02/17/2004 Lease status Updated EXHIBIT F
2720 SWMILITARY Allison's Corner Phase 2; Lot2, Block 1, NCB 00000 Xxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
TENANTS / RENT RATES
GROSS RENT RENT/SQ.FT. SQ.FT. PRIMARY TERM(YR.'S) EXPECTED TI EXTENSIONS
Xxxx, # 109 $ 300,660.00 $ 10.00 30066 10 $25; work by LL 5 five year extensions
Shoe Carnival, #107 $ 156,000.00 $ 13.00 12000 10 $25; work by LL 2 five yr extensions
Dots, #104 $ 67,000.00 $ 16.75 4000 5 $ 23.00 3 five yr extensions
Mattress Firm, # 101 $ 108,000.00 $ 12.00 9000 5 $ 22.22 2 five yr extensions
-----------------------------------------------------------------------------------------------
$ 631,660.00 55066
Monthly $ 52,638.33
RATE PER EXTENSION
Xxxx, # 109 1st 5 - $10.75, 2nd 5 - $11.25, 3rd 5 - $11.75, 4rth 5 - $12.25, 5th 5 - $12.75
Shoe Carnival, #107 1st 5 - $14, 2nd 5 - $15
Dots, #104 1st 5 - $17.25, 2nd 5 - $17.75, 3rd 5 - $18.25
Mattress Firm, # 101 1st 5 - $13.20, 2nd 5 - $14.52
-----------------------
Monthly
RENTAL COMMENCEMENT ANALYSIS - ACTUAL BASED ON STATUS AS OF TODAY
PLAN DELIVERY SCOPE OF WORK BLDG. DELIVERY ACTUAL RENT COMMENCEMENT ADMIN. FEE
--------------------------------------------------------------------------------------------------------
Xxxx, # 109 NA Prototype June 9, 2003 9/7/03 5.00%
Shoe Carnival, #107 Dec. 31, 2002 Prototype June 16, 2003 09/01/2003 10.00%
Dots, #104 30 days after lease signing Shell June 9, 2003 9/11/2003 no stipulation
Mattress Firm, # 101 NA Shell Nov. 11, 2003 01/10/2004 10.00%
CAM STOP INSUR..
----------------------------------------------------------------------
Xxxx, # 109 ncreases over 3% must be justifie paid annual/
right to self insure
Shoe Carnival, #107 none monthly
Dots, #104 an not increase more than 5%/y monthly
Mattress Firm, # 101 an not increase more than 6%/y monthly
AD VALOREM
--------------------------------------------------------------------
Xxxx, # 109 paid annual
Shoe Carnival, #107 monthly
Dots, #104 monthly/can not increase more than 25% /yr
after first full year of valuation after completion of construction
Mattress Firm, # 101 monthly
Loan Closing 01/17/2003
Construction Start 01/23/2003
Xxxx Notice Sent 01/27/2003 Delivery Changed to 6/9/03
Xxxx open for Business 06/19/2003
Shoe Carnival Open for Business 07/03/2003
Dots Open for Business 09/11/2003
Mattress Firm Delivery 11/11/2003
/s/ [ILLEGIBLE]
/s/ JL
EXHIBIT G
LEASE ESTOPPEL CERTIFICATE PROVISIONS
[SEE ATTACHED]
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT G
13.1.2. FUTURE LOANS. Tenant shall, within twenty (20) business days
after Tenant's receipt of Landlord's request, subordinate this Lease in the
future to any first mortgage or deed of trust placed by Landlord upon the Store,
Landlord's Parcel or the Building, with an insurance company, bank or any other
lender which customarily provides financing for shopping centers, provided that
such lender executes a Non-Disturbance Agreement substantially in the form set
forth in EXHIBIT F.
13.2. ESTOPPEL CERTIFICATES.
Within twenty (20) business days after the last to occur of (a) receipt
of request therefor, and (b) receipt by Landlord or Tenant (as the case may be)
of the fee described in Section 13.3 below, either party shall deliver to the
other a written statement acknowledging (i) the Commencement Date and
termination date of this Lease, (ii) that this Lease is in full force and effect
(if true), (iii) that this Lease has not been modified (or if it has, stating
the dates of such modifications), and (iv) any such other pertinent information
which is customary to supply to such a requesting party for purposes of
financing or sale (in the case of Landlord's request) or financing, assignment
or sublease, or sale (in the case of Tenant's request). Landlord may exercise
its right hereunder only in connection with a proposed sale, financing or
refinancing of Landlord's Parcel, and Tenant may exercise its right hereunder
only in connection with a proposed assignment or subletting of the Store, or a
financing of its furniture, fixtures, equipment or personal property.
13.3. PROCESSING FEES FOR NON-DISTURBANCE AGREEMENTS AND ESTOPPEL CERTIFICATES.
At the time of the third request for a Non-Disturbance Agreement under
Section 13.1.2 or the third request for an Estoppel Certificate under Section
13.2, the requesting party shall pay to the other, to defray the expenses of
processing, the sum of Seven Hundred Fifty Dollars ($750) for each such
Non-Disturbance Agreement or Estoppel Certificate, which sum shall be increased
from time to time in direct proportion to increases in Minimum Rent over the
amount of Minimum Rent as of the Commencement Date.
14. INDEMNIFICATION
14.1. TENANT INDEMNITY.
Tenant agrees to hold Landlord harmless from and indemnify and defend
Landlord against any and all injury, loss, damage, liability (or any claims
related to the foregoing), costs or expenses (including, without limitation,
attorneys' fees, reasonable investigation and discovery costs), of whatever
nature, to any person or property caused or claimed to be caused by or resulting
from any occurrence within the Store on and after the Delivery Date and during
the Term, provided nothing contained herein shall require Tenant to indemnify
Landlord against matters resulting from the negligence or willful acts or
omissions of Landlord or Landlord's employees, agents, Invitees or contractors,
except to the extent Tenant has waived a claim against Landlord pursuant to
Section 9.4 hereof.
14.2. LANDLORD INDEMNITY.
Landlord agrees to hold Tenant harmless from and indemnify and defend
Tenant against any and all injury, loss, damage, liability (or any claims
related to the foregoing), costs or expenses
Alison's Xxxxxx Xxxxxxxx Xxxxxx 00/00/00
Xxx Xxxxxxx, Xxxxx
Project No. T022569
6061.490/258559.4 /s/ [ILLEGIBLE]
/s/ JL
-46-
Landlord shall have the right, in Landlord's sole
discretion, to add additional buildings to the
Shopping Center (so long as no additional building
diminishes the visibility of the Demised Premises
from Southwest Military Drive), and the references
to the Shopping Center contained herein shall refer
to the completed portions of the Shopping Center as
they exist from time to time.
(g) Lease Term: Commencing the earlier of sixty (60)
days after completion of Landlord's Work as
described in EXHIBIT "B" (which is attached hereto,
and is incorporated herein by reference for all
purposes as if copied at length) and delivery of the
Demised Premises by Landlord to Tenant
("COMMENCEMENT DATE"). Landlord will complete
Landlord's Work and deliver the Demised Premises to
Tenant on or before November 1, 2003. If Landlord
delivers the Demised Premise to Tenant after
November 1, 2003, Tenant shall accrue two (2) days
of free Minimum Guaranteed Rental for each such day
after November 1, 2003, until Landlord delivers the
Demised Premises to Tenant. All such accrued Minimum
Guaranteed Rental shall be applied towards the last
payment(s) of the Lease Term. If the Demised
Premises are not delivered to Tenant by December 1,
2003, the Tenant may terminate this Lease if Tenant
provides written notice to Landlord before December
8, 2003, of such election; otherwise, Tenant is
deemed to accept delivery of the Demised Premises
whenever delivered by Landlord, with no free Minimum
Guaranteed Rental for any day after November 30,
2003. The Lease Term shall continue for a primary
term of five (5) years; provided that if the
Commencement Date is a date other than the first day
of a calendar month, the Lease Term shall be for
said number of years and months in addition to the
remainder of the calendar month following the
Commencement Date. Tenant, at the request of the
Landlord, shall execute and deliver a short form of
lease and/or estoppel letter specifying the date of
commencement and expiration of the Lease Term within
thirty (30) days after the Lease Term commences,
identical to the Declaration of Lease Term as shown
on EXHIBIT "C" (which is attached hereto, and is
incorporated herein by reference for all purposes as
if copied at length).
(h) Minimum Guaranteed Rental: as shown on EXHIBIT "D"
(which is attached hereto, and is incorporated
herein by reference for all purposes as if copied at
length), payable in advance.
(j) Estimated Annual Common Area Maintenance Costs
payment Ninety-Five Cents ($0.95) per square foot of
Total Floor Area in the Shopping Center, payable in
advance for the first year.
(k) Estimated Annual Tax Payment: Two and 48/100 Dollars
($ 2.48) per square foot of Total Floor Area in the
Shopping Center for the first year.
(l) Estimated Annual Insurance Payment: Twenty-Five
Cents ($0.25) per square foot of Total Floor Area in
the Shopping Center for the first year.
Shopping Center Lease (Alison's Corner Lot Two)
Mattress Firm, Inc. Shopping Center Lease
/s/ JL
Page 2
EXHIBIT C
TENANT ESTOPPEL Letter
DATE:________________, ________
LEASE:
Landlord: _______________________________________
Tenant: _______________________________________
Premises: ____________________, Suite ___________
San Antonio, Texas ____________________
ADDRESSEE: _______________________________________(LENDER)
TENANT CERTIFIES TO ADDRESSEE THAT -
1. Tenant has accepted and is in possession of the
premises.
2. All required improvements have been completed to the
satisfaction of the Tenant.
3. Neither Landlord nor Tenant is in default in the
performance of the lease.
4. No rent under the lease has been paid more than thirty
(30) days in advance of its due date.
5. Tenant, as of this date, has no claim of offset against
the rent.
6. The current monthly base rent is __________________.
The next payment is due __________________, ________.
7. The lease space was delivered to the Tenant
on _________________, _______ and the lease commences/ed on
_______________________, __________ and expires on
___________________, _________.
8. There is/are_______(_) option(s) to renew the lease for
five (5) year terms.
9. The lease is valid, enforceable, and unmodified except
as shown on the copy of the Lease (and all amendments)
attached to this Certificate as Exhibit "A".
TENANT:
________________________
By:_____________________
________________________
________________________
________________________
Please sign and return original to:
_________________________
c/o Xxxxx X. Xxxxxxx, President
Development Strategies, Inc.
X.X.Xxx 000000
Xxx Xxxxxxx, Xxxxx 00000
(000) 000-0000
(210) 524-9912fax
/s/ JL
bankrupt or discharged of its debts; or (iii) Tenant shall fail to keep, observe
or perform any of the other terms, covenants, and conditions herein to be kept,
observed and performed by Tenant for more than thirty (30) days after written
notice shall have been given to Tenant specifying the nature of such other
default, or if such other default so specified shall be of such nature that the
same cannot be reasonably cured or remedied within said thirty (30) day period,
if Tenant shall not in good faith have commenced the curing or remedying of such
default within such thirty (30) day period and shall not thereafter continuously
and diligently proceed therewith to cure of that default within a period not to
exceed ninety (90) days, then and in any one or more of such events (herein
referred to as an "Event of Default") Landlord shall have the rights and
remedies as hereinafter set forth.
14.02. REMEDIES. Upon the occurrence and continuance of an Event of
Default, Landlord, without further notice to Tenant may do any one or more of
the following: (a) perform, on behalf and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed to perform and of
which Landlord shall have given Tenant notice, the cost of which performance by
Landlord together with interest thereon at the prime rate quoted in the Wall
Street Journal plus two percent (2%) per annum from the date of such
expenditure, shall be deemed Additional Rent and shall be payable by Tenant to
Landlord upon demand; (b) elect to terminate this Lease and the tenancy created
hereby by giving notice of such election to Tenant, and may reenter the Leased
Premises, by summary proceedings or otherwise, and may remove Tenant and all
other persons and property from the Leased Premises, and may store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant
without Landlord becoming liable for any loss or damage occasioned thereby; (c)
exercise any other legal or equitable right or remedy which it may have.
14.03. DAMAGES. In the event Landlord exercises any of its remedies
herein, including termination of this Lease and/or reentry into the Leased
Premises, Tenant shall nevertheless remain liable to Landlord for any rental and
damages which may be due to Landlord or sustained by Landlord prior to or
subsequent to the exercise of said remedies. Tenant shall also be liable for all
reasonable costs, fees and expenses incurred by Landlord in pursuit of its
remedies hereunder. Tenant shall continue to pay all rent and additional charges
as the same become due under the terms of this Lease until such time, if any, as
Landlord relets same and the Leased Premises are occupied by such successor, it
being understood that Landlord shall have an obligation to mitigate Landlord's
damages by reletting the Leased Premises. Upon reletting, any sums received from
such new lessee by Landlord shall be applied first to payment of reasonable
costs incident to reletting; any excess shall then be applied to any
indebtedness to Landlord from Tenant other than for Base Rent and Additional
Rent; and any excess shall then be applied to the payment of Base Rent and
Additional Rent due and unpaid.
Notwithstanding the default of the Tenant or any provision of this Lease
to the contrary, Tenant shall not be bound by any provision intended to
accelerate the due dates for any rent or other charges or which in any manner
provides that the rent and other charges (or the present value thereof),
reserved by the Landlord for the entire Lease Term shall become immediately due
and payable prior to the date said rent or other charges would have otherwise
become due and payable.
ARTICLE XV
MISCELLANEOUS
15.01. CONSENT. Unless otherwise specifically provided in this Lease,
whenever the consent of either party is required, same shall not be unreasonably
withheld or delayed, unless otherwise specifically provided herein.
15.02. QUIET ENJOYMENT AND NON-DISTURBANCE. In addition to the other
covenants set forth in this Lease, Landlord hereby covenants and agrees that it
is well seized of fee simple title to the Leased Premises and the Shopping
Center and has full power and authority to execute and deliver this Lease, and
that if Tenant shall perform all of the covenants and agreements herein
stipulated to be performed on Tenant's part, Tenant shall at all times during
the continuance hereof have peaceable and quiet enjoyment and possession of the
Leased Premises and of the rights granted hereunder without any hindrance or
disturbance from any person claiming through Landlord, its successors, or any
other person, persons or entities.
Shoe Carnival Lease
Alison's Xxxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
8/30/02 /s/ JL
Page 17 of 22
15.03. ATTORNEY'S FEES. In the event either party is required to employ
the services of an attorney to judicially enforce its rights under this Lease,
the losing party shall reimburse the prevailing party for the prevailing party's
reasonable attorney fees and other costs incurred.
15.04. ESTOPPEL CERTIFICATE. Tenant shall, within thirty (30) days
after receipt of written request from Landlord, or Landlord's lender, from time
to time, execute and deliver a certificate certifying as follows:
A) this Lease is unmodified and in full force and effect or,
if there has been any modification, that the same is in full force
and effect as modified, and stating such modification;
B) the date of commencement of the Term of this Lease;
C) that all Rent is paid currently without any offset or
defense thereto;
D) the date to which the Rent payable hereunder by Tenant
has been paid and the amount of all such Rent, if any, paid in
advance; and
E) whether or not there is then existing any claim of
Landlord's default hereunder and if so, specifying the nature
thereof.
Landlord and Tenant agree that, upon request of the other and to the
extent it is correct, each will execute a certificate for the other with respect
to the status of this Lease setting forth that it is in full force and effect
and has not been altered, modified or amended (or specifying the nature of
same); that there are no defaults of the other party known to the party so
certifying (or specifying the nature of any known defaults); and stating the
date to which rental has been paid.
This Lease shall be subject, subordinate and inferior to any mortgage
that may be placed on the Leased Premises or the Shopping Center. Tenant shall,
upon demand, execute any instrument reasonably necessary to effect the foregoing
provisions and such other instruments or certificates as reasonably may be
requested by any mortgagee or Landlord. At the request of Tenant, Landlord will
procure from the mortgagee under any such mortgage and deliver to Tenant an
agreement providing, in substance, that so long as Tenant shall faithfully
discharge the obligations on its part to be kept and performed under the terms
of this Lease, its tenancy will not be disturbed, or its rights hereunder
affected by any such mortgage, and in the event of the foreclosure or any other
enforcement of any such mortgage, the rights of Tenant hereunder shall expressly
survive and this Lease shall continue in full force and effect.
15.05. INSPECTION. Landlord shall have the right, upon reasonable
notice except in the event of an emergency, to enter the Leased Premises for
purposes of inspection and/or making repairs required to be made by Landlord. In
such event Landlord will coordinate any such entry with Tenant so as not to
interfere with Tenant's business operations.
15.06. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or any other reason of a like nature not the fault of the
party delayed in performing work or doing any act required under the terms of
this Lease, then performance of such act shall be excused for the period of the
delay and the period of the performance of any such act, including the payment
of Base Rent, Additional Rent or any other payments required by the terms of
this Lease, shall be extended for a period equivalent to the period of such
delay. Notwithstanding the foregoing, Tenant shall not be excused from the
payment of Base Rent. Percentage Rent and Additional Rent if force majeure
occurs after Tenant initially opens for business.
Notwithstanding the foregoing, either parties right to claim the benefit
of Force Majeure shall be conditioned upon said party giving the other party
written notice of its intent to claim that a delay or hindrance is caused by a
condition of Force Majeure, within seven (7) days after said party becomes aware
of such condition. In the event a party fails to give such notice, it shall
Shoe Carnival Lease
Alison's Corner Shopping Center
San Antonio, TX
8/30/02
/s/ JL
/s/ [ILLEGIBLE]
Page 18 of 22
ARTICLE XXIV
ENVIRONMENTAL MATTERS
Section 24.1 LANDLORD'S REPRESENTATIONS. Landlord represents that, to
Landlord's actual knowledge, without any duty of additional inquiry, no leak,
spill, release, generation, discharge, emission or disposal of hazardous or
toxic substances has occurred on the Shopping Center or the Premises prior to
the date of this Lease and that the Shopping Center and the Premises, including,
without limitation, the soil, groundwater, and soil vapor on or under the
Shopping Center or the Premises are free of all toxic or hazardous substances.
Section 24.2 MUTUAL REPRESENTATIONS. Each party ("First Party")
represents and warrants to the other that any handling, transportation, storage,
treatment or usage of hazardous or toxic substances that will occur on the
Shopping Center or the Premises after the date of this Lease by reason of any
act of First Party or its agents or employees after delivery to Tenant of
occupancy of the Premises, will be in compliance with all applicable laws,
regulations and ordinances.
Section 24.3 INDEMNITY. Each party ("First Party") agrees to indemnify,
defend (with counsel approved by the other party ["Second Party"]) and hold
Second Party and its shareholders, directors, officers, employees and agents
harmless from any claims, judgments, losses, damages, penalties, fines,
liabilities (including sums paid in settlement of claims) or costs, including
attorneys' fees, consultant fees, and expert fees (consultants and experts to be
approved by Second Party), which arise from and after the date of this Lease in
connection with (a) the breach by First Party of its respective representations
contained in Sections 24.1 or 24.2 or (b) the presence on the Shopping Center or
Premises of hazardous or toxic substances by reason of the act or neglect of
First Party. Without limiting the generality of the foregoing, the
indemnification provided by this Section 24.3 shall cover all damages and
reasonable costs incurred by Second Party in connection with any investigation
of site conditions or any clean-up, remedial, removal or restoration work
required by any governmental agency or political subdivision because of the
presence or suspected presence of toxic or hazardous substances in the soil,
groundwater or soil vapor on or under the Shopping Center or the Premises,
unless the toxic or hazardous substances are present solely as a result of the
negligence or willful misconduct of Second Party.
Each party's obligation in this Section 24.3 to Indemnify the other shall
survive the termination of this Lease.
Section 24.4 TERMINATION. If Tenant is not reasonably able to conduct any
portion of its business from the Premises for more than ninety (90) days because
of the existence of a toxic or hazardous substance at the Shopping Center or the
Premises, than unless the presence of such toxic or hazardous substances was
caused in any way by any act or omission of Tenant or its agents or employees,
Tenant may at its option, upon thirty (30) days written notice to Landlord,
terminate this Lease, if Landlord does not remediate (in Landlord's sole
discretion) the existence of a toxic or hazardous substance at the Shopping
Center or the Premises within said thirty (30) day cure period. If Tenant elects
to terminate, Tenant shall be released from all of its obligations accruing from
and after the date of such termination.
ARTICLE XXV
HOLDING OVER
Section 25.1 HOLDING OVER. In the event Tenant holds over after the
expiration of the Term, including any extensions thereof, thereafter the tenancy
shall be from month to month at one hundred fifty percent (150%) of the Minimum
Rent applicable during the last month of the Term plus 100% of the additional
rent herein specified (prorated on a monthly basis) and otherwise on the
applicable terms and conditions specified.
ARTICLE XXVI
NOTICES
Section 26.1 NOTICES. Any notice, request or demand to be given by the
provisions of this Lease, or by law, shall be in writing and shall be sent by a
nationally recognized overnight delivery service (including, but not limited to,
Federal Express or UPS) or United States certified mail, return receipt
requested, addressed to Landlord or Tenant, as the case may be, at the
respective principal offices of the parties set forth in the heading of this
Lease. Either party may be similar notice designate different addresses or
addresses. Any notice sent by certified mail or delivery service shall be deemed
to have been given on the date it is mailed or transmitted, except that the time
period in which a response to any such notice must be given, or in which an
action must be commenced or taken, shall begin to run on the date of receipt.
Rejection or other refusal to accept notice shall be deemed to be receipt as of
the date of rejection or refusal.
ARTICLE XXVII
ESTOPPEL CERTIFICATES; SUBORDINATION; ASSIGNMENT OF RENTS; ETC.
Section 27.1 ESTOPPEL CERTIFICATES. Each party shall, upon request of the
other party, deliver a written instrument to the other party or to any other
person or firm specified by such other party, duly executed and certifying to
the best of its knowledge, that this Lease is unmodified and in full force or,
if there has been any modification, that the Lease is in full force as modified,
and stating all such modifications; specifying the dates to which rent and other
charges have been paid; and stating whether there exists any default in the
performance of any provision of this Lease. If Tenant fails to respond to
Landlord's request for an Estoppel Certificate within twenty (20) days after
Landlord delivers such written request to Tenant, Landlord will provide a second
notice in writing to Tenant. If Tenant fails to respond to Landlord's second
request for an Estoppel Certificate within ten
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/s/ [ILLEGIBLE]
[SEAL]
18
(10) days after Landlord delivers such written request to Tenant. Landlord is
hereby authorized and empowered to sign the Estoppel Certificate as Tenant's
attorney-in-fact. Tenant hereby grants to Landlord an irrevocable limited power
of attorney for Landlord to sign an Estoppel Certificate as Tenant's
attorney-in-fact, conditioned upon the preceding sentence.
Section 27.2 SUBORDINATION. Upon request of Landlord, Tenant agrees to
execute and deliver documents subordinating this Lease and Tenant's interest
herein to any mortgage, deed of trust, security agreement, ground or underlying
lease (each a "Financing Instrument") placed against the Premises and/or the
Shopping Center; and to all renewals, increases, modifications, replacements,
consolidations and extensions thereof. Notwithstanding the foregoing, Tenant
shall not be required to enter into the foregoing subordination agreement unless
the holder of any such Financing Instrument shall enter into an agreement with
Tenant, in recordable form, that in the event of foreclosure or other right
asserted under the Financing Instrument by the holder of any assignee thereof,
this Lease and the rights of Tenant hereunder shall continue in full force and
shall not be terminated or disturbed unless Tenant is in default, and so long as
Tenant attorns to the holder or assignee of said Financing Instrument.
Section 27.3 ASSIGNMENT OF RENTS. In the event Tenant receives a written
notice from any party claiming a collateral interest in this Lease and, by
reason thereof, an entitlement to collect the rent. Tenant may pay such rent to
such party (If Landlord has provided its written consent to Tenant for such
payment), which payments shall satisfy any and all liabilities of Tenant to
Landlord with respect to such payment without obligation on the part of Tenant
to make further inquiry, but subject to such party's providing to Tenant a copy
of the instrument pursuant to which such party claims such entitlement.
Section 27.4 ADMINISTRATIVE FEE. Delivery of any document contemplated by
this Article XXVII shall be contingent upon payment of the sum of Two Hundred
Fifty Dollars ($250.00) by the party requesting the document as an
administrative and processing fee.
ARTICLE XXVIII
RIGHT OF FIRST OFFER
Section 28.1 RIGHT OF FIRST OFFER. Intentionally omitted.
ARTICLE XXIX
APPLICABLE LAW: CONSTRUCTION
Section 29.1 GOVERNING LAW. This Lease shall be governed by the laws of
the state in which the Premises are located.
Section 29.2 INVALID PROVISIONS. The invalidity or unenforceability of
any provision of this Lease shall not affect any other provision, it being the
intention of the parties that the provisions of this Lease shall be enforced to
the fullest extent possible.
Section 29.3 CAPTIONS. The captions, table of contents and/or index of
this Lease are for reference only and shall not be deemed to describe the intent
of this Lease or affect its interpretation or construction.
Section 29.4 INTERLINEATION. Whenever in this Lease any printed portion
has been deleted, this Lease shall be construed as if the deleted material was
never included herein.
Section 29.5 INTERPRETATION. This Lease has been negotiated by Landlord
and Tenant and shall not be deemed to have been prepared by either Landlord or
Tenant, but by both equally. In the event of any ambiguity of the provisions of
this Lease, such ambiguity shall not be construed against Tenant.
ARTICLE XXIX
MISCELLANEOUS
Section 30.1 NO RECORDING OF LEASE. Neither this Lease, nor any
memorandum of this Lease, shall be recorded in any public records by Tenant.
Section 30.2 ENTIRE AGREEMENT. This Lease and the Exhibits attached
include the entire agreement of the parties concerning this Lease. No change,
amendment of addition to this Lease shall be effective unless in writing and
signed by the parties.
Section 30.3 BINDING EFFECT. The provisions of this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto and their
respective successors and assigns.
Section 30.4 REASONABLE CONSENT. If the consent, approval or permission
of either party is required or desired by the other party hereunder, such party
agrees that it shall not unreasonably or arbitrarily withhold or delay the same
except as provided otherwise in this Lease. In the event that either party fails
to respond to any such request within fifteen (15) days (or such longer or
shorter period as is herein specified) after receipt of such request, then such
request shall be deemed to have been granted, and the other party may proceed
without further action. In the event that any such consent, approval or
permission it specifically withheld (except where a party has the right to
withhold its consent in its sole discretion), the withholding party shall set
forth in writing its reasons for such withholding.
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
[SEAL]
19
EXHIBIT H
DUE DILIGENCE CHECKLIST
NAME OF PROPERTY COMMENTS
------------------------------------------------------------------------------------------
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 agreements ___________
8. Prior five full years operating statements + Year-to-date statement ___________
9. Prior year's general ledger statement + Year-to-date 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 yeartodate 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 ___________
e. Status of expirations, with kick-outs, with respect to
renewal
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/s/ [ILLEGIBLE]
possibilities ___________
19. Description and breakdown of Promotional Income and Marketing Fund ___________
20. Leasing Plan ___________
ITEM OUTSTANDING
---------------------------------------------------------------------------------------------
B. EXPENSE INFORMATION
1. Twelve months of consecutive utility bills
a. Water ___________
b. Gas ___________
c. Electric ___________
d. Telephone and dedicated lines ___________
Copies of all service agreements, contracts or any leases that encumber the
property
e. Fire/burglar alarm
f. Antenna cable/satellite dish ___________
g. Cleaning ___________
h. Exterminating ___________
i. Landscaping ___________
j. Scavenger ___________
k. Security service ___________
I. Snow removal ___________
m. Towing ___________
n. Union contracts ___________
o. Elevator ___________
p. Uniform rental ___________
q. Water softeners ___________
r. Leasing ___________
s. Management ___________
t. Advertising ___________
u. Tax reduction legal fees ___________
v. Any other service contracts or leases not cancelable in 90
days ___________
3. Capital improvements ___________
w. Capital improvements over the last 36 months ___________
x. Five-year capital expenditure forecast ___________
y. Assignable warranties ___________
C. ENVIRONMENTAL REPORTS
4. Phase I ___________
5. Other ___________
D. STAFFING
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ITEM OUTSTANDING
---------------------------------------------------------------------------------------------
6. Itemized by position and salary ___________
E. SITE INSPECTIONS
7. Inspection report ___________
8. Photo attached ___________
/s/ JL
/s/ [ILLEGIBLE]
EXHIBIT I
CONTRACTS
/s/ X.X.
/s/ [ILLEGIBLE]
[LOGO]
X.X. XXX 000000
XXX XXXXXXX, XXXXX 210/349-5954
78246-0368 FAX 210/000-0000
ALAMO LOT MAINTENANCE, LTD., LLP.
To: Xxxxx Xxxxxx CONTRACT PROPOSAL Type: PROPOSAL
Company Submitted To Service Site Location
Name: DEVELOPMENT STRATEGIES, INC. Name: ALISON'S CORNER
SiteID:
Street: X.X.XXX 460481 Street: 2720 S.W.MILITARY @ YARROW
City/Zip: XXX XXXXXXX, XXXXX 00000 City: SAN ANTONIO
Phone: (000)000-0000 Fax: (210)524-9912 000.000.0000 [ILLEGIBLE]
Contact: XXXXX XXXXXXX best #
Service To Be Provided: POWER VACUUM SWEEPING OF THE ENTIRE PARKING
- AREA TO INCLUDE THE ALLEY AND THE HANDBLOWING OF ALL CORNERS,
- CARSTOPS AND SIDEWALKS. SERVICE TO BE PROVIDED ON TUESDAY AND
- SATURDAY NIGHTS AFTER 10:00PM
Frequency/Rates
1: times per month. $: per month
2: 2 times per week. $: 295.00 per month
3: times per week. $: per month
4: times per: $: per:
Alamo Lot Maintenance, Ltd., L.L.P. will provide all materials and labor
necessary to insure quality service for the above location, but will exclude;
dump areas and large debris that will not fit into the truck (unless otherwise
specified above). Any additional work or labor not specified above will be
performed at an agreed upon price by both parties. The above prices are
guaranteed for one year from the date of this agreement.
Payment terms are 2% discount if paid in 10 days from date of invoice or
net due in 30 days. Sales tax, when applicable, will be included on the invoice.
Submitted By: XXXXX XXXXXX Date: June 11, 2003
-------------------*--------------------
CONTRACT SUBJECT TO THIRTY DAY WRITTEN
CANCELLATION NOTICE BY EITHER PARTY
-------------------*--------------------
The above proposal in the amount of $__________ per month is hereby
accepted and Alamo Lot Maintenance, Ltd., L.L.P. is authorized to begin work on
__________. Payment will be in accordance with the above terms.
Accepted By /s/ Xxxxx X. Xxxxxxx Date 7/3/03
-------------------- ------
/s/ X.X.
/s/ [ILLEGIBLE]
MLC LANDSCAPING CO., INC.
00000 XXXXX XXXXXXXXXXX
XXX XXXXXXX, XX 00000
(000) 000-0000
FAX: (000) 000-0000
----------
From XXXX DATE: JUNE 12, 2003
To XXXX XXXXXX PAGES FOLLOWING COVER 6
SUBJECT:
MESSAGE:
/s/ [ILLEGIBLE]
7/3/03
THANKS
XXXX
----------
/s/ X.X.
MLC LANDSCAPING CO., INC.
COMMERCIAL LANDSCAPE MANAGEMENT
EXECUTIVE SUMMARY
ANNUAL LANDSCAPE MANAGEMENT
ALLISON'S CORNER PHASE TWO
THE ATTACHED LANDSCAPE MANAGEMENT PROPOSAL ENCOMPASSES SERVICES THAT WE BELIEVE
ARE NECESSARY AND DESIRABLE FOR A PROPERTY OF THIS QUALITY. THE FOLLOWING IS A
SUMMARY OF THE SERVICES. THE ANNUAL MAINTENANCE SECTION DETAILS THESE SERVICES.
A TOTAL OF FORTY TWO (42) SERVICE CALLS PER YEAR.
TURF, SHRUBBERY AND GROUND COVER MAINTENANCE.
BED AND PAVED AREA WEED CONTROL; PHYSICAL AND CHEMICAL REMOVAL.
COMPREHENSIVE FERTILIZATION PROGRAM FOR OPTIMUM HEALTH OF LANDSCAPE.
SIDEWALK AND BUILDING ENTRANCES CLEARED OF CLIPPINGS AND DEBRIS.
LANDSCAPE DESIGN AND CONSTRUCTION.
PUBLIC LIABILITY AND "DRIFT" INSURANCE COVERAGE OF $1,000,000.
FULLY COVERED BY TEXAS WORKERS COMPENSATION INSURANCE.
ALL SUPERVISORY PERSONNEL ARE EQUIPPED WITH MOBILE RADIOS.
TNRCC IRRIGATION LICENSE # L10005700 (REQUIRED BY LAW)
TEXAS DEPT. OF AGRICULTURE APPLICATORS LICENSE # TPCL 135813 (REQUIRED
BY LAW)
LICENSED ARBORIST ON STAFF (INTERNATIONAL SOCIETY OF ARBORICULTURE TX-
1062)
00000 XXXXX XXXXXXXXXXX XXXX, XXX XXXXXXX, XXXXX 00000 - (210) 491-9929-FAX
(000) 000-0000
/s/ X.X.
/s/ [ILLEGIBLE]
MLC LANDSCAPING CO, INC.
AGREEMENT FOR
ANNUAL LANDSCAPE MANAGEMENT
AT
ALLISON'S CORNER PHASE TWO
JUNE 12, 2003
MLC LANDSCAPING COMPANY HEREBY OFFERS TO PROVIDE ALL LABOR, EQUIPMENT, TOOLS,
MATERIALS AND SUPPLIES FOR THE LANDSCAPE MANAGEMENT SERVICES AT THIS PROPERTY.
WEATHER PERMITTING; THE FOLLOWING LANDSCAPE MANAGEMENT SERVICES WILL BE
PERFORMED ON A SCHEDULED BASIS THROUGHOUT THE YEAR. THE ATTACHED SERVICE
CALENDAR PROVIDES ALL DETAILS REGARDING THE FREQUENCY AND TYPE OF SERVICES TO BE
PROVIDED UNDER THIS CONTRACT.
IMPROVED TURF MAINTENANCE
ALL IMPROVED (IRRIGATED) TURF AREAS WILL BE MOWED TO A CUTTING HEIGHT DICTATED
BY THE SEASON OF THE YEAR AND THE CONDITIONS OF THE TURF. ALL TURF AREAS WILL BE
"MOWED" WITH ROTARY TYPE MOWERS WITH BLADES BEING SHARP AT ALL TIMES.
"WEED-WHACKING" TYPE EQUIPMENT WILL BE USED ONLY ON TRIMMING AND EDGING
OPERATIONS AND IN THOSE AREAS WHERE ROTARY MOWERS CANNOT BE UTILIZED
EFFICIENTLY.
SHRUBBERY / GROUND COVER MAINTENANCE
ALL SHRUBBERY SHALL BE "PICK-PRUNED" AND/OR SHEERED TO MAINTAIN CONSISTENT SIZE
AND SHAPE, REMOVE DEAD OR DYING BRANCHES AND PROMOTE HEALTHY GROWING CONDITIONS.
IN CASES WHERE SHRUBBERY HAS GROWN OUT TO WALLED AREAS AND INTO THE TURF, IT
WILL BE ALLOWED TO GROW NATURALLY AND SHALL BE SELECTIVELY PRUNED TO MAINTAIN
SHAPE AND SIZE. SHRUBBERY WILL NEVER BE TRIMMED WITH MONOFILAMENT TRIMMERS. ALL
GROUND COVER SHALL BE SHEARED TO MAINTAIN A CRISP EDGED APPEARANCE, A CONSISTENT
HEIGHT AND A DENSE COVER.
TURF AND SHRUB FERTILIZATION
ALL TURF AND SHRUBBERY SHALL BE FERTILIZED TWO (2) TIMES PER YEAR WITH HIGH
NITROGEN, SLOW-RELEASE FERTILIZER. A 15-10-10 FERTILIZER (TOTAL NITROGEN - 15%,
SULPHUR COATED UREA - 9.5%, 2.0% IRON WITH TRACE ELEMENTS) WILL BE APPLIED IN
THE SPRING AT THE RATE OF 1 POUND OF NITROGEN PER 1,000 SQUARE FEET. THE FALL
APPLICATION SHALL BE AN 18-6-12 WINTERIZED APPLIED AT THE SAME RATE. TWO
BROADCAST APPLICATIONS PER YEAR OF A GRANULAR PRE-EMERGENT HERBICIDE WILL HELP
CONTROL SUMMER AND WINTER WEEDS PRIOR TO GERMINATION.
PAVED AREA WEED CONTROL
A NON-SELECTIVE, TRANSLOCATED HERBICIDE FOR THE REMOVAL OF ALL VEGETATION IN AND
AROUND PAVED AREAS SHALL BE APPLIED ON AN AS NEEDED BASIS.
/s/ X.X.
/s/ [ILLEGIBLE]
IRRIGATION SYSTEM
THE IRRIGATION SYSTEM WILL BE INSPECTED ONE TIME PER MONTH. AT THIS TIME, THE
CONTROLLER WILL BE SET FOR THE APPROPRIATE TIME SETTINGS AND HEADS WILL BE
ADJUSTED FOR PROPER COVERAGE. UPON COMPLETION OF THE INSPECTION, A REPORT WILL
BE FAXED TO THE PROPERTY MANAGER INDICATING NECESSARY REPAIRS AND ESTIMATED
COSTS. MLC REQUESTS THAT THIS REPORT BE FAXED BACK TO OUR OFFICE AS SOON AS
POSSIBLE INDICATING APPROVAL OR NON-APPROVAL. (VERBAL APPROVALS WILL BE
ACCEPTED.) ANY OTHER SERVICE CALL REPAIRS, INSPECTIONS, OR ON SITE CONSULTATIONS
WILL BE PROVIDED ON A TIME AND MATERIAL BASIS. ITEMS FOUND TO BE BROKEN BY MLC
PERSONNEL WILL BE REPLACED AT NO COST.
WEED CONTROL PROGRAM
MLC LANDSCAPING COMPANY SHALL PROVIDE A WEED CONTROL PROGRAM DESIGNED TO CONTROL
UNWANTED WEEDS AND GRASSES WITH AN EFFICIENT AND ENVIRONMENTALLY SAFE APPROACH.
THE WEED CONTROL APPROACH UTILIZES A COMBINATION OF PHYSICAL AND CHEMICAL
TECHNIQUES TO PROVIDE AN ACCEPTABLE LEVEL OF CONTROL.
FIRE ANT CONTROL
A FIRE ANT CONTROL PROGRAM SHALL BE IMPLEMENTED THAT COMBINES THE USE OF VARIOUS
PESTICIDES TO CONTROL INFESTATIONS. IN THE CASE THAT MOUNDS DO APPEAR, THEY WILL
BE TREATED, LEVELED AND RAKED DURING THE REGULAR SCHEDULED MAINTENANCE SERVICE
DAY. TWO BROADCAST APPLICATIONS PER YEAR OF LOGIC BAIT WILL REDUCE FIRE ANT
INFESTATIONS.
ORNAMENTAL / SHADE TREE MAINTENANCE
ALL ORNAMENTAL/SHADE TREES SHALL BE PRUNED UP TO 8' TO PROVIDE PROTECTION TO
PEDESTRIANS. THESE PRUNING POINTS SHALL BE PROTECTED WITH A PRUNING SEALER.
"SUCKERS" SHALL BE REMOVED ON A CONTINUING BASIS.
CREPE MYRTLES
ALL CREPE MYRTLES (8' AND UNDER) WILL BE LIGHTLY PRUNED TO MAINTAIN PROPER
SHAPE. SUCKERS WILL BE REMOVED ON AN AS NEEDED BASIS. IF NEEDED, SPRAYING OF
CREPE MYRTLES FOR SERIOUS PEST INFESTATIONS SHALL BE AN OPTIONAL SERVICE AT AN
ADDITIONAL CHARGE.
CLIPPINGS & DEBRIS REMOVAL
ALL SIDEWALKS AND BUILDING ENTRANCES WILL BE CLEARED OF CLIPPINGS AND LEAVES
WITH A POWER BLOWER OR AN INDUSTRIAL VACUUM. IN ADDITION, THE PROPERTY WILL BE
THOROUGHLY "POLICED" FOR TRASH AND OTHER DEBRIS DURING EACH SERVICE CALL.
/s/ X.X.
/s/ [ILLEGIBLE]
WORK FORCE PERFORMANCE
MLC LANDSCAPING COMPANY GUARANTEES THAT ALL WORK WILL BE CARRIED OUT IN A
PROFESSIONAL AND WORKMANLIKE MANNER WITH ON-SITE SUPERVISION AT ALL TIMES.
THERE WILL BE NO CREW "DROP-OFFS". ALL PERSONNEL WILL USE SAFETY EQUIPMENT AND
BE NEATLY DRESSED IN IDENTIFYING CLOTHING WHICH DESIGNATES THEM AS MLC
EMPLOYEES. ALL TRUCKS WILL BE CLEAN AND IDENTIFIED AS MLC VEHICLES. "STAGING" OF
CREWS WILL BE IN AN AREA OF THE PROPERTY WHICH DOES NOT INTERFERE WITH NORMAL
BUSINESS OPERATIONS. MLC PERSONNEL WILL CONDUCT THEMSELVES AS YOUR
REPRESENTATIVES WHILE ON THE PROPERTY.
COMMUNICATION
FREQUENT AND EASY COMMUNICATIONS BETWEEN THE PROPERTY MANAGER AND MLC MANAGEMENT
IS ESSENTIAL TO THE ACHIEVEMENT OF QUALITY SERVICE. THEREFORE, WE MAKE CERTAIN
THAT THE PAGER NUMBERS; MOBILE PHONE NUMBERS AND EMERGENCY PHONE NUMBERS OF MLC
MANAGEMENT ARE AVAILABLE TO EVERYONE INVOLVED. WE ENCOURAGE THEIR USE.
RESPONSIBILITY & OPTIONAL WORK
MLC LANDSCAPING COMPANY SHALL NOT BE HELD RESPONSIBLE FOR THE CURRENT CONDITION
OF ANY PLANT MATERIAL OR DAMAGE TO ANY PLANT MATERIAL OR TURF AREAS CAUSED BY
ANY "ACT OF NATURE", ANIMALS, VANDALISM OR THE INABILITY TO PROVIDE ADEQUATE
WATER.
ALL COMMUNICATIONS REGARDING THE IMPLEMENTATION, SCHEDULING OR REQUIREMENTS FOR
ADDITIONAL LANDSCAPING SERVICES SHALL BE DIRECTED TO THE DESIGNATED MLC MANAGER
OR THE UNDERSIGNED, NOT TO THE INDIVIDUAL WORKERS ON THE SITE. ANY ADDITIONAL
WORK REQUIRED THAT IS OUTSIDE THE SCOPE OF THIS AGREEMENT MUST HAVE PRIOR
WRITTEN APPROVAL FROM THE PROPERTY MANAGER AND THE MLC PROJECT MANAGER. CHARGES
FOR ANY ADDITIONAL WORK SHALL BE AGREED UPON BETWEEN THE PARTIES PRIOR TO THE
COMMENCEMENT OF ANY WORK.
MLC LANDSCAPING CO., INC. SHALL NOT BE RESPONSIBLE FOR ANY UTILITIES REQUIRED TO
MAINTAIN THE PROPERTY OR ANY NEW OR EXISTING PLANT MATERIAL.
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
ANNUAL SERVICE CALENDAR
[ILLEGIBLE] JAN FEB MAR APR MAY JUNE JULY AUG SEP OCT NOV DEC TOTALS
------------------------------------------------------------------------------------------------------------------------------
IMPROVED TURF MAINTENANCE 2 2 4 4 4 4 4 4 4 4 2 2 42
SHRUBBERY/GROUND COVER MAINTENANCE AS NEEDED
TURF FERTILIZATION 1 1 2
TURF WEED CONTROL: PRE EMERGENT 1 1 2
PAVED AREA WEED CONTROL: ROUND UP AS NEEDED
IRRIGATION INSPECTION: OPERATIONAL 1 1 1 1 1 1 1 1 1 1 1 1 12
FIRE ANT CONTROL AS NEEDED
ORNAMENTAL SHADE TREE MAINTENANCE AS NEEDED
TRASH REMOVAL 2 2 4 4 4 4 4 4 4 4 2 2 42
CREPE MYRTLE MAINTENANCE AS NEEDED
CLIPPINGS AND DEBRIS REMOVAL 2 2 4 4 4 4 4 4 4 4 2 2 42
/s/ JL
Page 5
AGREEMENT
THE ANNUAL CONTRACT PRICE SHALL BE PAYABLE TO MLC LANDSCAPING COMPANY IN EQUAL
MONTHLY INSTALLMENTS, PLUS THE CURRENT TEXAS STATE SALES TAX. ALL MONTHLY
INSTALLMENTS SHALL BE DUE WITHIN THIRTY (30) DAYS OF RECEIPT OF INVOICE. THIS
CONTACT PRICE IS FOR THE PROPERTY IN THE CURRENT CONFIGURATION.
MONTHLY INSTALLMENT: $375.00 (EXCLUDING TAX)
COMMENCEMENT DATE: ________________________________
THIS AGREEMENT SHALL CONTINUE FOR A PERIOD OF TWELVE CONSECUTIVE FULL MONTHS
BEGINNING ON THE CONTRACT DATE. IF THE COMMENCEMENT DATE IS OTHER THAN THE FIRST
DAY OF THE MONTH, THE SERVICES FOR THE FIRST MONTH WILL BE PRO-RATED ACCORDINGLY
BASED ON THE NUMBER OF SERVICE CALLS FOR THE FIRST MONTH. THIS CONTRACT CAN ONLY
BE MODIFIED IN WRITING AND ACCEPTED BY BOTH PARTIES. THIS AGREEMENT MAY BE
CANCELED WITH THIRTY (30) DAY WRITTEN NOTICE (BY CERTIFIED MAIL) BY EITHER
PARTY. ALL ACCOUNTS MUST BE CURRENT PRIOR TO CANCELLATION OF SERVICES BY
OWNER/MANAGER. THIS AGREEMENT SHALL BE AUTOMATICALLY RENEWED FOR THE SAME PERIOD
TIME UNLESS MLC LANDSCAPING CO., INC. IS NOTIFIED TO THE CONTRARY, IN WRITING,
THIRTY DAYS IN ADVANCE OF THE EXPIRATION OF THE THEN CURRENT TERM. UPON EACH
ANNIVERSARY DATE OF THIS AGREEMENT, THE PRICES THEN IN EFFECT SHALL BE
AUTOMATICALLY INCREASED BY THE ANNUAL PERCENT INCREASE IN THE CONSUMER PRICE
INDEX. CUSTOMER WILL BE NOTIFIED OF ANY PRICE INCREASE ABOVE THIS PERCENTAGE
AMOUNT.
ALL PAST DUE INVOICES (AFTER 30 DAYS) FOR THIS PROPERTY WILL BE ASSESSED A 1.5%
PER MONTH LATE CHARGE. IN THE EVENT THAT MLC LANDSCAPING COMPANY REQUIRES LEGAL
ASSISTANCE IN COLLECTIONS, THE OWNER/MANAGER OF THE PROPERTY SHALL PAY ALL
REASONABLE LEGAL FEES. ALL ACCOUNTS MORE THAN THIRTY (30) DAYS PAST DUE SHALL BE
SUBJECT TO SUSPENSION OF SERVICES UNTIL THE ACCOUNT IS BROUGHT CURRENT. THERE
WILL BE NO PRO-RATED CHARGES FOR SUSPENDED SERVICE DURING THIS TIME.
HAVING READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, WE THE UNDERSIGNED
ACCEPT THIS AGREEMENT ON THE 3 DAY OF JULY 2003
MLC LANDSCAPING COMPANY, INC.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
XXXXXXX X. XXXXXX
OPERATIONS MANAGER
ALLISON'S CORNER PHASE TWO
/s/ Xxxxx X. Xxxxxxx
----------------------------------
PRINTED NAME: XXXXX X. XXXXXXX
-----------------------
TITLE: OWNER
------------------------------
/s/ JL
FIRE RISER MONITORING
"NON" XXXX XXXXX
LOCATED IN XXXXX XX. BEHIND MATTRESS FIRM SPACE
499, 6039 [ILLEGIBLE] 01-05-6205
2720 [ILLEGIBLE]
[MCS METROPLEX CONTROL SYSTEMS LOGO]
XXXX X. XXXXX - SALES MANAGER
00000 Xxxxxxxx Xxxxx - Xxx Xxxxxxx Xxxxx 00000
Phone (000) 000-0000 - Mobile (000) 000-0000
Fax (000) 000-0000 - e-mail; xxxxxx@xxxxxxxxx-xxxxxxx.xxx
B#5660 - ACR#1970
[ILLEGIBLE] / [ILLEGIBLE] / WOODY
/s/ JL
CLIENT VERIFICATION FORM (CONFIDENTIAL)
Completed on: 07/03/03 at: 11:37
NOTE: The following computer information is on file for your security system.
Please verify/check all data, including current passcard holders. Make
any changes by crossing out information and printing corrections. Then
siqn and return this form immediately. By signing and dating this
form I acknowledge/accept the accuracy, terms, and conditions on both
sides (if printed on back) of this form. Your Password: _________________
Your Signature _________________________ Dated: _________________________
ALISON'S CORNER - PHASE TWO Acct No: 01-05-5205
0000 XX XXXXXXXX XX Last update: 07/03/03
METR All OK Word:
Permit No..:
ALISON'S CORNER - PHASE TWO Account Typ: Commercial
0000 XX XXXXXXXX XX Control Typ:
XXX XXXXXXX XX 00000 Opn/Clo Rpt: N D/W/B/M:
Backup Acct:
(000) 000-0000 Tests Every: M/H/D:
-------------- Permanent Comments ------------------- - Brief/Temporary Comments
Passcard ----- Name ------------ A Usr -------- Phone ------ Comment
1 SAN ANTONIO FIRE Global
2 XXXXX XXXXXXX (000) 000-0000 MBL
3 ALISON XXXXXXX (000) 000-0000
4 ALISON XXXXXXX (000) 000-0000
5 XXXXX XXXXXX (000) 000-0000
Zone ------ Zone Description ------------------
E11?001 Fire - PULL STATION
E11?002 Fire - SMOKE
E11?003 Fire - WATERFLOW + SUPERVISORY
/s/ JL
[SBC LOGO]
June 27, 2003
Statement of Terms and Conditions
Dear Business Customer:
Thank you for choosing SBC service for your telecommunications needs. We look
forward to serving your business needs.
At the SBC family of companies, we take pride in providing quality service and
customer assistance, and we have taken many steps to ensure your satisfaction.
As a service to our customers, and in compliance with the requirements of the
Public Utility Commission of Texas, we want to provide you with this information
concerning the terms and conditions of service:
- RATES AND CHARGES FOR SERVICES - A complete itemization of your rates and
charges can be found in the Monthly Service Itemization section and the
Business Plan section of your first telephone xxxx. Immediately review you
first xxxx upon receipt and if you have any questions regarding the charges
please contact us at 0-000-000-0000.
- FULL DESCRIPTION OF EACH PRODUCT OR SERVICES ORDERED - These are identified
on your xxxx; however, for additional information on the services ordered,
you may reference the EasyOptions section of your SBC telephone directory or
visit our website at xxxx://xxx.xxx.xxx/xxxx/xx/xxx/xxxx. If you still have
questions after reviewing your first xxxx and the reference material above,
please contact us at 0-000-000-0000.
- CHARGES FOR LATE PAYMENT AND RETURNED CHECKS - A late payment charge of 6.5%
is applicable and is referenced in the Payment information section of the
telephone xxxx. There is a $25.00 charge for returned checks. If late
payment or returned check charges are applicable, they can be found in the
Other Charges section and Monthly Statement section of the telephone xxxx.
- APPLICABLE MINIMUM CONTRACT SERVICE TERMS AND EARLY TERMINATION FEES - If
you have signed a contract for a minimum term, you should have received a
contract with the terms, conditions and applicable termination fees. If you
have not received this contract, please call us at 0-000-000-0000.
- DEPOSITS AND ADVANCE PAYMENTS - If a deposit or advance payment has been
paid, the advance payment will appear in the Monthly Statement section of
your first telephone xxxx and the deposit will appear in the Payment
Information section of your first telephone xxxx. Information on interest
accrual and refund of deposit can be found in the "Your Rights as a
Customer" section of the SBC telephone directory.
- APPLICABLE CONSTRUCTION CHARGES - If your service required construction
charges, you would have already received and signed a contract before
service is installed. If this is applicable to you and you have not receive
and signed a contract, please call us at 0-000-000-0000.
- TELEPHONE NUMBER ASSIGNMENT CHANGES - Your correct telephone number is
reflected on your first telephone xxxx.
2623.1.5.1481 1 AT 0.292 **
DEVELOPMENT STRATEGIES
X X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ JL
[SBC LOGO]
xxx.xxx.xxx
June 27, 2003
Dear Customer:
Thank you for selecting SBC as your telecommunications provider.
The enclosed brochure describes the optional InLine(R) or InLine(R) Plus service
that you subscribed to and provides our contract terms and conditions. YOU
SHOULD READ THIS BROCHURE CLOSELY BECAUSE IT CONTAINS IMPORTANT INFORMATION
ABOUT YOUR INLINE SERVICE, INCLUDING IMPORTANT LIMITATIONS AND EXCLUSIONS TO
THAT SERVICE.
Please feel free to call us for any additional information or to make changes to
your telephone service. Representatives are available to assist you Monday
through Friday. You can reach us at (000) 000-0000.
We appreciate the opportunity to serve you.
Sincerely,
SBC
2623.1.5.1482 1 AT 0.292 **
DEVELOPMENT STRATEGIES (000) 000-0000
P X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ JL
[SBC LOGO]
June 26, 2003
Thank you for choosing SBC services for your telecommunications needs. We value
and appreciate your business.
Contained herein is a confirmation of your order placed on 05/29/2003.
For more information on how to use call management features, visit our online
user guide at xxxx://xxx.xxx.xxx/xxxx/xx/xxx/xxxx-xxxxx.
For more information on business products and services, ordering DSL Internet,
Web Hosting, SBC eBill(SM), calling services, and other Business Solutions visit
xxxx://xxx.xxx.xxx/xxxx/xx/xxx/xxxxxxxx.
If we can be of further assistance, please contact us at 0-000-000-0000 or for
DSL Internet service matters, call 1-877-SBC-DSL5.
Sincerely,
YOUR SBC SERVICE REPRESENTATIVE
2623.1.5.1483 1 AT 0.292 **
DEVELOPMENT STRATEGIES 000 000-0000
P X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ JL
[SBC LOGO]
xxx.xxx.xxx
July 1, 2003
Dear Customer:
Thank you for selecting SBC as your telecommunications provider.
The enclosed brochure describes the optional InLine(R) or InLine(R) Plus service
that you subscribed to and provides our contract terms and conditions. YOU
SHOULD READ THIS BROCHURE CLOSELY BECAUSE IT CONTAINS IMPORTANT INFORMATION
ABOUT YOUR INLINE SERVICE, INCLUDING IMPORTANT LIMITATIONS AND EXCLUSIONS TO
THAT SERVICE.
Please feel free to call us for any additional information or to make changes to
your telephone service. Representatives are available to assist you Monday
through Friday. You can reach us at (000) 000-0000.
We appreciate the opportunity to serve you.
Sincerely,
SBC
2865.1.18.5492 1 AT 0.292 **
DEVELOPMENT STRATEGIES (000) 000-0000
P X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ JL
[SBC LOGO]
July 1, 2003
Statement of Terms and Conditions
Dear Business Customer:
Thank you for choosing SBC service for your telecommunications needs. We look
forward to serving your business needs.
At the SBC family of companies, we take pride in providing quality service and
customer assistance, and we have taken many steps to ensure your satisfaction.
As a service to our customers, and in compliance with the requirements of the
Public Utility Commission of Texas, we want to provide you with this information
concerning the terms and conditions of service:
- RATES AND CHARGES FOR SERVICES - A complete itemization of your rates and
charges can be found in the Monthly Service itemization section and the
Business Plan section of your first telephone xxxx. Immediately review you
first xxxx upon receipt and if you have any questions regarding the charges
please contact us at 0-000-000-0000.
- FULL DESCRIPTION OF EACH PRODUCT OR SERVICES ORDERED - These are identified
on your xxxx; however, for additional information on the services ordered,
you may reference the EasyOptions section of your SBC telephone directory or
visit our website at http:/xxx.xxx.xxx/xxxx/xx/xxx/xxxx. If you still have
questions after reviewing your first xxxx and the reference material above,
please contact us at 0-000-000-0000.
- CHARGES FOR LATE PAYMENT AND RETURNED CHECKS - A late payment charge of 6.5%
is applicable and is referenced in the Payment Information section of the
telephone xxxx. There is a $25.00 charge for returned checks. If late
payment or returned check charges are applicable, they can be found in the
Other Charges section and Monthly Statement section of the telephone xxxx.
- APPLICABLE MINIMUM CONTRACT SERVICE TERMS AND EARLY TERMINATION FEES - If
you have signed a contract for a minimum term, you should have received a
contract with the terms, conditions and applicable termination fees. If you
have not received this contract, please call us at 0-000-000-0000.
- DEPOSITS AND ADVANCE PAYMENTS - If a deposit or advance payment has been
paid, the advance payment will appear in the Monthly Statement section of
your first telephone xxxx and the deposit will appear in the Payment
Information section of your first telephone xxxx. Information on interest
accrual and refund of deposit can be found in the "Your Rights as a
Customer" section of the SBC telephone directory.
- APPLICABLE CONSTRUCTION CHARGES - If your service required construction
charges, you would have already received and signed a contract before
service is installed. If this is applicable to you and you have not receive
and signed a contract, please call us at 0-000-000-0000.
- TELEPHONE NUMBER ASSIGNMENT CHANGES - Your correct telephone number is
reflected on your first telephone xxxx.
0000.0.00.0000 1 AT 0.292 **
DEVELOPMENT STRATEGIES
X X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ X.X.
[SBC LOGO]
June 30, 2003
Thank you for choosing SBC services for your telecommunications needs. We value
and appreciate your business.
Contained herein is a confirmation of your order placed on 05/29/2003.
For more information on how to use call management features, visit our online
user guide at xxxx://xxx.xxx.xxx/xxxx/xx/xxx/xxxx-xxxxx.
For more information on business products and services, ordering DSL Internet,
Web Hosting, SBC eBill(SM), calling services, and other Business Solutions visit
xxxx://xxx.xxx.xxx/xxxx/xx/xxx/xxxxxxxx.
If we can be of further assistance, please contact us at 0-000-000-0000 or for
DSL Internet service matters, call 1-877-SBC-DSL5.
Sincerely,
YOUR SBC SERVICE REPRESENTATIVE
2865.1.18.5493 1 AT 0.292 **
DEVELOPMENT STRATEGIES 000 000-0000
P X XXX 000000
XXXX 000
XXX XXXXXXX XX 00000-0000
/s/ JL
SERVICES AGREEMENT
SYSTEMS MONITORING DATA FORM
Customer agrees that in the event of an emergency or system failure, reasonable
safety precautions will be taken to protect life and property during the period
of time from when MCS is first notified of the emergency or failure and until
such time as MCS notifies the Customer that the system is operational or that
the emergency has cleared.
Upon receipt of a monitored signal CMS will telephone the responding agency or
contact, as listed within this data form, and notify them of the activated
signal. CMS is responsible only for making their best effort in attempting to
notify by telephone the designated responding agency or contact named within.
MCS and the CMS is under no obligation to telephone any responding agency or
contact other than the responding agency or contact named in the most recent
data form received by MCS from the Customer. The Customer will notify MCS, in
writing, of any changes, additions or deletions to this information. MCS and the
CMS does not warrant or represent that anyone telephoned by MCS or the CMS will
respond to any call nor do we warrant or represent any response time of any
police or fire department, paramedic unit, patrol service or others, should any
of these parties be dispatched as a result of signals being received and the
Customer does hereby release MCS and the CMS for any and all responsibility and
liability for any failure or delay in responding.
SUBSCRIBER INFORMATION:
XXXX TO: XXL ONE, LTD.
ADDRESS: XX XXX 000000 XXXX: Xxx Xxxxxxx
XXXXX: Texas ZIP CODE: 78246 PHONE: 000.000.0000
PREMISE NAME: Alison's Corner Phase Two
ADDRESS: 0000 XX [XXXXXXXXX] XXXXX#: 000
XXXX: Xxx Xxxxxxx XXXXX: TX ZIP CODE: 78224
PREMISE PHONE:_____ 2ND PHONE:_____
RESPONDING AGENCY: Dallas PHONE:______
EMERGENCY CONTACT: Xxxxx X. Xxxxxxx PHONE: 000.000.0000
EMERGENCY CONTACT: Xxxxxx X. Xxxxxxx PHONE: 000.000.0000
EMERGENCY CONTACT: Xxxxxx X. Xxxxxxx PHONE: 000.000.0000
SPECIAL INSTRUCTIONS: Try #'s/Contacts in order listed; if
none contacted; call Xxxxx Xxxxxx @ 000.000.0000
MCS Texas Board of Private Investigators and Private Security Agencies
Certificate Number B-05660.
MCS Texas Commission on Fire Protection, Fire Alarm Certificate of Registration
Number ACR-1970
Acknowledgment by Initial; Customer: /s/ [ILLEGIBLE] MCS: ______
---------------
/s/ XX
Xxxx 0 xx 0X
Xxxxxxx
XXXXXXXXX XXXXXXX SYSTEMS, INC.
DATE: 8/1/2003
INVOICE 103609 X.X. Xxx 000
No.:
Xxx Xxxxxxx, XX 00000-0000
XXXX TO:
XXL One, LTD
X.X. Xxx 000000
Xxxx: Xxxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
SERVICE AT: Allison's Corner
Attn: Xxxxx Xxxxxxx 0000 XX
Xxxxxxxx Xxxxx Xxx Xxxxxxx, XX 00000
CUSTOMER ID: XXL ONE
DESCRIPTION: Agreement 148 Billing #1 of 4 REFERENCE: Agreement 148
TERMS: PO NUMBER: XXXXX XXXXXXX
ITEM DESCRIPTION QUANTITY UNIT PRICE AMOUNT
AGREEMENT
Quarterly Monitoring 1.00 $ 100.00 $ 100.00
AGREEMENT SUBTOTAL $ 100.00
SUBTOTAL: $ 100.00
SALES TAX: $ 8.25
PAYMENTS: $ 0.00
TOTAL DUE: $ 108.25
/s/ JL
EXHIBIT J
LIST OF ADDITIONAL CLOSING DOCUMENTS
1. Four (4) counterpart original Assignments and Assumptions of Contracts,
Licenses and Intangible Property in a form acceptable to Seller and Buyer. If
any Contract or license is not freely assignable, then Seller shall also deliver
to Buyer evidence of all required consents to and approvals of such assignment,
together with evidence of payment of any and all assignment fees and costs;
2. An updated, current rent roll relating to the Property, certified by Seller
as being true, correct and complete as of the Closing Date;
3. Executed originals of all Leases, Contracts and licenses assigned to Buyer
pursuant to this Agreement (or where originals are unavailable, copies duly
certified by Seller as being true, correct and complete copies of the
originals);
4. Two (2) original Seller's certificates dated as of the Closing Date
confirming that all of the representations and warranties of Seller contained in
this Agreement are true and correct as of the Closing Date;
5. An ALTA statement/Owner's Affidavit, GAP Indemnity and other affidavits in
form and substance required by the Title Company;
6. An original Waiver of Lien executed by the Brokers;
7. Evidence satisfactory to Buyer of termination of (i) any Contracts with
respect to which Buyer notifies Seller (prior to the expiration of Buyer's
Examination Period) to terminate as of Closing, and (ii) any employees of the
Property;
8. All keys, security cards, keycard passes and entrance cards to all doors to,
and equipment and utility rooms in, the Property;
9. Assignments of any and all warranties and guarantees (including copies of
any required consents to such assignments and evidence of payment of any fees in
connection with such assignments) from any manufacturers or installers of
furniture, fixtures and/or equipment relating to the Property and owned by
Seller and all warranties and guarantees (including copies of any required
consents to such assignments and evidence of payment of any fees in connection
with such assignments) received by Seller in connection with any work or service
performed or equipment installed in the construction, repair, maintenance and/or
replacement of the Property or any portion thereof;
10. All books, operating manuals, tenant files and correspondence and other
materials relating to the Property requested by Buyer;
/s/ JL
11. To the extent not delivered to Buyer prior to the Closing Date, originals of
all as-built plans and specifications, surveys, site plans, engineering plans
and studies, utility plans and development plans related to the Property; and
12. Evidence satisfactory to Buyer that all property managers and/or leasing
brokers relating to the Property have been terminated and paid all commissions
or fees due for all services rendered.
/s/ JL
