Exhibit 10.181
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (the "First Amendment")
dated as of March 30, 2004, amends and modifies that certain Purchase and Sale
Agreement ("Agreement") executed by Inland Real Estate Acquisitions, Inc., as
the Purchaser, on February 26, 2004 and executed by Pine Ridge Plaza, LLC, as
the Seller, on February 27, 2004 for purchase and sale of the Property commonly
known as Pine Ridge Plaza Shopping Center and legally described on Exhibit A
attached hereto. Unless defined herein, all capitalized terms shall have the
same meanings as set forth in the Agreement. All future references to the
Agreement shall include the original Agreement and this First Amendment.
In consideration of the mutual promises contained in and for other good and
valuable consideration the receipt and sufficient of which are hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. The Seller acknowledges that it has not made all delivery of the
Inspection Documents required by Purchaser. Therefore, expiration date
of the General Inspection Period is hereby extended from April 2, 2004
until April 9, 2004.
2. Except as modified hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
This Amendment may be signed in counterparts.
IN WITNESS WHEREOF, said parties hereunto subscribe their names.
PURCHASER: INLAND REAL ESTATE ACQUISITIONS, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxxx
----------------------------------------------
Xxx Xxxxxxx, Senior Vice President
Date: __________, 2004
SELLER: PINE RIDGE PLAZA, LLC,
a Missouri limited liability company
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------
Xxxx X. Xxxxxx, Manager
Date: 3/30/04, 2004
1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made and entered into
by and between Inland Real Estate Acquisitions, Inc. ("Purchaser") and Pine
Ridge Plaza, LLC ("Seller").
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of a certain parcel of real
property, buildings containing approximately 226,471 square feet of net rentable
retail space, the improvements thereon and certain Intangible Property
(described in Section 3(b)(iii)), commonly known as Pine Ridge Plaza Shopping
Center and located at the southeast corner of 31st and Iowa Streets in Lawrence,
Kansas, said real property legally described on EXHIBIT A attached hereto and
incorporated herein (such real property, improvements and Intangible Property
collectively referred to herein as the "Property"); and
WHEREAS, Purchaser and Seller desire to enter into this Agreement to
provide for the sale of the Property by Seller and Purchaser upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
promises and undertakings set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. PURCHASE AND SALE. At the price and upon the terms, conditions and
provisions herein contained, Seller agrees to sell Purchaser, and Purchaser
agrees to buy from Seller, the Property.
2. PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Property shall be Twenty-Six Million Nine Hundred Eighty-One Thousand Five
Hundred Dollars ($26,981,500). The Purchase Price shall be payable to Seller
as follows:
(a) Purchaser shall deposit the sum of Two Hundred Fifty Thousand Dollars
($250,000) xxxxxxx money (the "Xxxxxxx Money") with an escrow officer
at Chicago Title Insurance Company, 000 X. Xxxxx Xxxxxx, Xxxxxxx, XX
00000, Attn: Xxxxx Xxxxxx, Division 2 Escrow, Phone (000) 000-0000,
Facsimile (000) 000-0000 (the "Title Company"), within three (3) days
after the Effective Date (as defined in Section 10). Purchaser shall
deliver to Seller a receipt from the Title Company indicating that the
Xxxxxxx Money has been received by the Title Company. The cost of said
escrow shall be borne equally by Purchaser and Seller. The Title
Company shall deposit the Xxxxxxx Money in an interest-bearing account
(at Purchaser's cost and expense) in order to earn the highest
interest then available. The interest earned thereon shall be added to
and become a part of the Xxxxxxx Money. The Xxxxxxx Money and interest
earned thereon shall be applied to the Purchase Price at Closing, or
distributed as set forth herein.
1
(b) The balance of the Purchase Price, as adjusted pursuant to the terms
of this Agreement, shall be paid to Seller at Closing (defined in
Section 3(a)) by cash, wire transfer or cashier's check.
(c) The Closing shall take place on the Closing Date with the Title
Company pursuant to separate written instructions of Seller and
Purchaser. Seller shall pay the costs of obtaining the Purchaser's
title insurance as required in this Agreement and the Survey, as
hereinafter defined, for the Property, all state and county deed
stamps and all capital gains taxes. Purchaser shall pay the costs of
all recording fees and any mortgage registration tax. Each party shall
pay one-half of the escrow fees of the title company. Seller's costs
for providing Purchaser its title insurance as required by this
Agreement and endorsements required by Purchaser shall not exceed $.50
per $1,000.00 of title insurance, $500.00 for all required
endorsements and one-half of $500.00 closing escrow fee.
3. CLOSING AND CONVEYANCE OF TITLE
(a) Subject to Section 16(b), the closing of the purchase of the Property
shall be held thirty (30) days following the end of the General
Inspection Period, or on a date mutually acceptable to the parties
("Closing" or "Closing Date").
(b) Seller shall deliver to Purchaser/Title Company, on or before the
Closing Date, the following closing documents in form mutually
acceptable to the parties:
(i) a recordable special warranty deed conveying to Purchaser
marketable and insurable fee simple title to the Property,
free and clear of all liens and encumbrances, subject only
to Permitted Exceptions (as defined in Section 4(b)).
(ii) duplicate counterparts of an assignment and assumption of
all of Seller's right, title and interest in and to the
Leases (as defined in Section (3(d) and listed on EXHIBIT B)
(the "Lease Assignment").
(iii) duplicate counterparts of an assignment and assumption, duly
executed and acknowledged by Seller, conveying to Purchaser
title to the Intangible Property owned or held by Seller in
connection with the Property, free and clear of all
encumbrances (the "Intangible Property Assignment"). The
intangible property includes, without limitation: (1) all
rights under contracts and agreements entered into by Seller
or its agents in connection with the Property; (2) all plans
and specifications prepared in connection with the
construction of the improvements to the Property which shall
include "as-built" plans and specifications; (3) all
construction contracts entered into a connection with the
construction of the improvements to the Property; (4) all
guarantees, service contracts and warranties, and all
guarantee, service contracts and warranties pertaining to
the construction
2
of the improvements to the Property, the acquisition of the
Property; (5) all correspondence and contracts with
suppliers and the Tenants; (6) all booklets and manuals,
advertising materials, utility contracts, telephone exchange
numbers (if any), licenses, easements, and such other
rights, including proof of dedications, as may be necessary
for vehicular and pedestrian ingress and egress and the
maintenance of utilities, parking, common area and other
site improvements, and other governmental permits and
permissions relating to the Property, the improvements
thereto, and the operation thereof (hereinafter collectively
referred to as the "Intangible Property") together with
copies of the Intangible Property items;
(iv) such documents, affidavits and statements as may be
reasonably required by the Title Company to provide
Purchaser with the Title Policy described in Section 16(a)
hereof;
(v) a signed Closing Statement;
(vi) an affidavit from Seller stating (a) its taxpayer
identification number, and (b) it is not a "foreign person"
within the meaning of Section 1445 et seq. Of the Internal
Revenue Code of 1986 as amended;
(vii) original executed copies, or copies certified to be true,
correct and complete, of (1) the Leases and any amendments
thereto; and (2) all guarantees, service contracts,
warranties and other documents relating to the Property
which are to be conveyed to Purchaser pursuant to Section
3(b)(iii) herein;
(viii) Tenant Estoppel Certificates received by Seller from the
Tenants (defined in Section 6(a) and listed on EXHIBIT B);
The form of the Estoppel Certificates is attached hereto as
Exhibit C; provided, however, the estoppel certificates to
be issued by Kohl's Department Stores, Inc., and the tenants
for the Old Navy, IHOP, Famous Footwear, Bath & Body Works,
Michael's and Bed, Bath and Beyond will be on forms attached
to such tenants' leases and, if no form is attached to such
tenants' leases, then on the standard forms issued by such
tenants;
(ix) certified mail return receipt requested letters to the
Tenants notifying each of them of the change in the
ownership of the Property and directing them to make all
payments due under their lease to such place as Purchaser
may designate;
(x) A recertification of all of Seller's representations or
warranties contained in this Agreement;
3
(xi) An OEA (operation and easement agreement) estoppel
certificate if an OEA encumbers the Property; and
(xii) A certified rent roll identifying all Tenants, their rental
payments, commencement dates, expiration dates and
delinquencies, if any.
(c) Purchaser shall deliver to Seller/Title Company, on or before the
Closing Date, the following closing documents in form mutually
acceptable to the parties:
i. duplicate counterparts of the Lease Assignment;
ii. duplicate counterparts of the Intangible Property
Assignment;
iii. such documents, affidavits and statements as may
be reasonably required by the Title Company;
iv. a signed Closing Statement; and
v. the funds described in Section 2(b).
(d) Possession of the Property shall be delivered to Purchaser at Closing,
free of all leases, tenancies, licensees and occupants except those
provided in EXHIBIT B attached hereto and by reference made a part
hereof (hereinafter collectively referred to as the "Leases") and any
described in the Permitted Exceptions (defined in Section 4(b)).
4. CONTINGENCIES. Purchaser's obligation to close shall be contingent
upon the following:
(a) TITLE INSPECTION. Purchaser, at Seller's expense, as set forth in
Section 2(c) of this Agreement shall obtain the following documents:
(i) a title commitment to issue a 1999 Form B Owner's title
policy with extended coverage and all of Purchaser's
required endorsements ("Title Commitment") from the Title
Company, setting forth the condition of the title to the
Property, and any exception thereto, as of the Effective
Date;
(ii) copies of all of the recorded exceptions described in the
Title Commitment ("Title Documents"); and
(iii) Seller's existing "as built" survey of the Property. Prior
to Closing, Seller agrees to deliver an update to the
existing survey, which update (the "Survey") shall be
currently dated and be certified to the Purchaser, its
4
successors and assigns and the Title Company as an ALTA/ACSM
1999 Survey and which will include all minimum standards
detail requirements for ALTA/ACSM Land Title Surveys and all
Table A Options and Responsibilities (other than topography)
and which will reflect changes to the portion of the
Property formerly leased by Kmart, including related parking
areas, caused by the remodeling of such area.
(b) TITLE INSPECTION PERIOD. Purchaser shall have a period, commencing
from the date of Purchaser's receipt of the LAST item received of the
Title Commitment, Title Documents and the Survey, and ending fifteen
(15) days thereafter, in which to review the foregoing documents (the
"Title Inspection Period"). In the event the Title Commitment
discloses reservations, easements, restrictions, encroachments,
conditions, rights of way, violations or other matters or exceptions
(collectively referred to as "Title Objections") which would, in
Purchaser's sole discretion, interfere with Purchaser's intended
operation of the Property, Purchaser shall have the right to notify
Seller of such Title Objections on or before the expiration date of
the Title Inspection Period. Upon notifying Seller of any such Title
Objections, Seller shall have fifteen (15) days thereafter in which to
cure or remove such Title Objections. If such Title Objections are not
cured or removed within said fifteen (l5)-day period, Purchaser shall
have the option to terminate and cancel this Agreement by giving
written notice thereof to Seller and to Title Company within fifteen
(15) days after the expiration of said fifteen (15)-day cure period,
and upon doing so, the Xxxxxxx Money shall be returned to Purchaser
and the parties hereto shall have no further obligations to one
another (except the indemnity set forth in Section 5). If Purchaser
does not give notice of Title Objections by the expiration of the
Title Inspection Period or if Purchaser gives such notice, Seller does
not cure or remove the Title Objections within the fifteen (15)-day
cure period and Purchaser does not terminate this Agreement within the
fifteen (15) days following such cure period, then, in either event,
the right of Purchaser to cancel this Agreement pursuant to this
Section 4(b) shall expire and all matters shown on the Title
Commitment shall be deemed "Permitted Exceptions." Seller is
obligated, at its sole cost and expense, to remove or insure over
Title Objections which are liens or encumbrances of a definite or
ascertainable amount or other Title Objections which were caused by
Seller's intentional actions.
(c) GENERAL INSPECTION. Purchaser shall have a period commencing with the
Purchaser's receipt of all of the Inspection Documents and ending
thirty (30) days thereafter (the "General Inspection Period") in which
to conduct a complete inspection of the Property and to conduct any
investigations, including engineering and environmental
investigations, and to review all of the operating and financial
history of the Property, or feasibility studies of the Property, to
review the Leases and the financial condition of the Tenants. If it
should be determined by Purchaser, in Purchaser's sole discretion and
judgment, that the Property is not suitable for the purposes which
Purchaser intends to utilize the Property OR that the Leases, or the
financial condition of the Tenants are
5
unsatisfactory, Purchaser may give written notice to Seller and the
Title Company on or before the expiration of the General Inspection
Period that this Agreement is terminated and is null and void for all
purposes. Upon receipt by the Title Company of such written notice,
and without written verification of Seller, the Xxxxxxx Money shall
forthwith be returned by the Title Company to Purchaser and the
parties hereto shall have no further obligation one to the other
(except the Indemnity in Section 5).
(d) INSPECTION DOCUMENTS. Seller shall deliver to Purchaser within five
(5) days after the Effective Date.
(i) copies of all guaranties and warranties from any and all
contractors and sub-contractors pertaining to the Property;
(ii) copies of the real estate tax bills and notices of assessed
valuation pertaining to the Property for the last calendar
year;
(iii) copies of all Leases, including any amendments,
modifications and guaranties related thereto;
(iv) copies of all information relating to any inducements,
abatements, concessions or cash payments given to Tenants,
CAM paid by Tenants and bills sent to Tenants;
(v) copies of financial information for one year of operations
of the Property;
(vi) all maintenance records, service contracts and insurance
policies maintained by Seller in connection with the
Property;
(vii) certified rent roll;
(viii) zoning letter, if in Seller's possession; and
(ix) other items reasonably requested by Purchaser.
5. ENTRY RIGHTS AND INDEMNIFICATION. At any time during business hours
and upon reasonable prior written notice after the Effective Date, Purchaser and
its agents, employees, contractors and representatives shall have the right,
privilege and license of entering upon the Property for the purpose of making
soil tests borings, utility studies, surveys, asbestos and hazardous waste
studies, feasibility studies, engineering studies and any other studies and
investigations as Purchaser deems necessary or desirable in connection with its
investigation of the Property. Purchaser agrees to restore any damage done to
the Property by Purchaser or anyone acting in Purchaser's behalf in making such
investigations. Purchaser agrees to indemnify and hold Seller and Seller's
agents harmless from and against all loss, cost, liability and expense suffered
by Seller or Seller's agents as a result of the foregoing studies or the
exercise of entry rights by Purchaser, its agents, employees or independent
contractors.
6
6. REPRESENTATIONS AND WARRANTIES.
(a) Seller represents and warrants to Purchaser, to the best of Seller's
knowledge, as follows as of the Effective Date and as of the Closing
Date and will survive the Closing and transfer of the special warranty
deed for a period of 365 days following Closing:
(i) The only occupants of the Property are the tenants (the
"Tenants") identified in the Leases described on EXHIBIT B,
and no one has an option or right of first refusal to
purchase the Property. The Leases are in full force and
effect and in good standing and, except as otherwise
expressly noted on Schedule I attached hereto, all buildouts
have been completed. There are no uncompleted tenant
improvements or concessions, there are no delinquencies in
rental payments and all tenants are in possession of their
premises and are paying full rent and pass throughs on a
current basis. Seller has not received any notices of
default from any Tenant and, to Seller's knowledge, neither
the Seller nor any Tenant is in default of a Lease.
(ii) Seller has not received any notice of any condemnation of or
special assessment against the Property.
(iii) There is no pending or threatened litigation in connection
with the Property.
(iv) Seller is not "foreign person" within the meaning of Section
1445(F)(3) of the Internal Revenue Code of 1986, as amended
(the "Code").
(v) Seller has paid all unemployment taxes, if any, and Seller
has no employees located at the Property.
(vi) There are no contracts or agreements with third parties for
services or supplies which cannot be cancelled by notice and
without penalty upon thirty (30) days notice. Copies of all
of the contracts or agreements affecting the Property have
been delivered to Purchaser.
(vii) This Agreement is duly authorized, executed and delivered by
and binding upon Seller; Seller has the capacity and
authority to enter into this Agreement and to consummate the
transactions herein; and nothing prohibits or restricts the
right or ability of Seller to close the transactions
contemplated herein and to carry out the terms hereof.
(viii) Seller has received no notices of violations of any
applicable laws or any environmental laws or regulations.
7
(ix) There shall be no leasing commissions due and payable on
account of any Lease or which may become due after Closing
upon the renewal of the Lease as a result of any agreement
entered into by Seller.
(x) The structure of the improvements on the Property are in a
good state of repair free of structural problems.
(xi) The roofs of the Property are free of leaks other than those
leaks repaired by Seller listed on Exhibit D (to be attached
not later than five (5) days after the Effective Date) and
those leaks covered by warranties.
(xii) There is no personal property owned by Seller and used in
the operation of the Property.
As set forth in this Section 6, "Seller's knowledge" means the
knowledge of Xxxx Xxxxxxxx, a member of Seller. Xxxx Xxxxxxxx is the
person with the best knowledge of the items listed in this Sections 6
and 3(b)(x) of this Agreement.
(b) Purchaser represents and warrants to Seller that as of the date hereof
and as the Closing Date: (i) this Agreement is duly authorized,
executed and delivered by and binding upon Purchaser; (ii) Purchaser
has the capacity and authority to enter into this Agreement and to
consummate the transactions herein, and (iii) nothing prohibits or
restricts the right or ability of Purchaser to close the transactions
contemplated herein and to carry out the terms hereof.
7. NOTICES. All notices and requests permitted or required to be given
hereunder shall be in writing and shall be deemed effective (a) on the date
delivered; if hand delivered, (b) on the date mailed by registered or certified
U.S. Mail, return receipt requested, with adequate postage affixed, if mailed
registered or certified mail, (c) on the date when sent, charges prepaid, if
delivered by reputable commercial overnight delivery service or U.S. Express
Mail as evidenced by service receipt or by Express Mail postmark or (d) by
facsimile transmission to the fax numbers listed below, but only if confirmation
that such facsimile transmission has been received by the person to be notified
has been confirmed by the notifying party. All notices shall be addressed to the
addressee stated hereinbelow or at such other address as either party shall
designate in writing in the manner hereinabove set forth.
Address of Purchaser: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
8
Attention: Xxxx Xxxxxxx, Xx. Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
Address of Seller: Xxxxxxxxxx Real Estate Co., LC
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Husch & Eppenberger, LLC
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
8. BINDING UPON SUCCESSORS AND ASSIGNS. All of the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns. This Agreement may not be assigned by
Purchaser without the prior consent of Seller, except to affiliates of Purchaser
or to a single purpose limited liability company; provided that, upon any such
assignment, Purchaser will not be relieved of its obligations hereunder. Except
as expressly set forth in this Agreement, Seller may not assign its obligations
under this Agreement.
9. EMINENT DOMAIN AND CASUALTY. In the event between the Effective Date
and the Closing Date, all or any portion of the Property shall be taken by
eminent domain, or shall become the subject of eminent domain proceedings
threatened or commenced or the improvements located on the Property shall be
destroyed or materially damaged by fire or other casualty, Seller shall
immediately notify Purchaser thereof, and immediately provide Purchaser with
copies of any written communications from any condemning authority or details of
the casualty, as appropriate. If any of said events occur Purchaser shall notify
Seller in writing within ten (10) business days following Seller's notice
described above, of Purchaser's intent to terminate this Agreement and have the
Xxxxxxx Money returned to Purchaser, or to proceed to closing this transaction.
If any of said events occur and Purchaser elects to consummate this transaction,
(a) if the transfer to the condemning authority takes place prior to Closing
hereunder, the remainder of the Property shall be conveyed to Purchaser at
Closing; (b) if the transfer to the condemning authority has not taken place
prior to Closing, the entire Property shall be conveyed to Purchaser at Closing
hereunder; (c) if Seller has received payment for such condemnation or taking
prior to the Closing hereunder, the amount of such payment shall be a credit
against the Purchase Price payable by Purchaser hereunder; (d) if Seller has not
received such payment at the time of Closing, Seller shall assign to Purchaser
all claims and rights on account of or arising out of such taking and (e) in the
event of a fire or other casualty, Seller will credit the Purchaser with any
amount received from insurance or other parties as a result of such
9
casualty, assign Seller's rights to Purchaser in and to any insurance proceeds
or third-party claims and credit Purchaser with any self-retained or deductible
amounts.
10. MISCELLANEOUS, EFFECTIVE DATE AND STATE LAW. Whenever it is provided
in this Agreement that days shall be counted, the first day to be counted shall
be the day following the date of which the event causing the period to commence
occurs. If the day for performance of any action hereunder falls on a Saturday,
Sunday or legal holiday, then the time for performance shall be deemed extended
to the next succeeding business day. The term "Effective Date" as used in this
Agreement, shall mean the date of execution by the last of the parties hereto to
execute this Agreement. This Agreement shall be construed under the laws of the
State of Kansas. This Agreement may be executed in any number of counterparts
and by different parties to this Agreement on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall constitute one and the same agreement. Any signature delivered by a party
by facsimile transmission shall be deemed to be an original signature hereto.
11. BROKER'S COMMISSION. Purchaser represents and warrants that it has not
dealt with any broker, agent or other person in connection with this
transaction, and that no broker, agent or other person brought about this
transaction, other than Block and Company, Inc. Seller represents and warrants
that it has not dealt with any broker, agent or other person in connection with
this transaction, and that no broker, agent or other person brought about this
transaction, other than Xxxxxxxxxx Real Estate Co., LC. At the Closing (and only
if there is a Closing), Seller shall pay a brokerage commission to Block and
Company, Inc. in the amount of Seventy-Five Thousand Dollars ($75,000) and a
commission to Xxxxxxxxxx Real Estate Co., LC pursuant to a prior written
agreement. No commission will be payable in the event a Closing does not occur
for any reason whatsoever. Purchaser and Seller agree to indemnify and hold
harmless the other from and against any claims by any broker, agent or other
person claiming a commission or other form of compensation by virtue of having
dealt with the indemnifying party with respect to this transaction.
12. DEFAULT. If the sale and purchase of the Property as contemplated by
this Agreement is not consummated because of Purchaser's default, then Seller
shall have the right to receive the Xxxxxxx Money as liquidated damages as its
sole and exclusive remedy. If the sale and purchase of the Property as
contemplated by this Agreement is not consummated because of Seller's default,
the Purchaser shall have the right to either (i) file an action for specific
performance or (ii) terminate the Agreement, receive a return of the Xxxxxxx
Money and xxx Seller for any damages incurred as a result of Seller's default.
The prevailing party in any action brought to enforce this Agreement shall
receive from the non-prevailing party, a refund of all expenses, including
reasonable attorneys fees, incurred by the prevailing party as a result of any
claim or action commenced hereunder. Nothing contained herein shall be deemed to
limit either parties' damages for any breach by the other party of a
representation or warranty or any indemnity contained in this Agreement.
13. MODIFICATIONS. This Agreement may not be modified or amended except by
the written agreement of Purchaser and Seller.
10
14. OPERATION OF PROPERTY PRIOR TO CLOSING. Except as expressly consented
to by Purchaser in writing, Seller agrees that, prior to Closing:
(a) neither Seller nor its agents or representatives shall enter
into any new leases, contracts or other agreements, whether
oral or written, pertaining to any portion of the Property
or the Intangible Property after the Title Inspection Period
and General Inspection Period have ended and all of
Purchaser's conditions to Closing have terminated or been
waived. In the event Seller desires to enter into any new
leases, contracts or other agreements, whether oral or
written, pertaining to any portion of the Property or the
Intangible Property prior to expiration of the Title
Inspection Period or General Inspection Period, Seller will
deliver copies of all such documents to Purchaser and
Purchaser will have ten (10) days to review and approve or
disapprove any such lease contract or other agreement. If
necessary, the General Inspection Period will be extended to
permit Purchaser the benefit of such ten (10)-day period for
review and approval of any new lease, contract or other
agreement.
(b) Seller shall cause the Property to be maintained in their
present condition, ordinary wear and tear excepted.
(c) Seller agrees to cooperate fully with Purchaser and
Purchaser's representatives to facilitate Purchaser's
evaluations, reports and an audit of the books and records
of the Property.
15. WAIVER. Either party shall have the right to waive any condition or
contingency in this Agreement for the benefit of the party granting such waiver.
Any such waiver shall be in writing and shall be signed by the party waiving
such condition or contingency.
16. CLOSING CONTINGENCIES.
(a) Notwithstanding the satisfaction or waiver of the
contingencies specified in Section 4 hereof, Purchaser shall
not be obligated to close hereunder unless Purchaser can
obtain from Title Company on the Closing Date a standard
ALTA owner's title insurance policy form B-1999 in
accordance with this Agreement, insuring fee simple title to
the Property in Purchaser subject to the Permitted
Exceptions, with a 3.1 zoning endorsement, a survey
endorsement, a contiguity endorsement, and an access and
public road endorsement, and deleting all standard
exceptions including, without limitation, the survey and
mechanic's lien exceptions. In the event that such
contingency shall not be satisfied or met by the Closing
Date, Purchaser, at its option, may waive the satisfaction
thereof or terminate this Agreement, and if Purchaser shall
terminate this Agreement, Purchaser shall receive a return
of the Xxxxxxx Money and all further rights
11
and obligations of the parties hereunder shall be terminated
(except the indemnity set forth in Section 5).
(b) Purchaser acknowledges that Seller is currently remodeling a
portion of the Property formerly leased to Kmart for the new
tenants, T. J. Max, Michael's and Cost World Plus. In the
event such remodeling is not completed prior to the Closing
Date, the Closing Date shall be extended to a date ten (10)
days following completion of such remodeling. Seller will
use its best efforts to and will complete all construction
work on the Property as required in the Leases and as is
necessary to ensure that all of the tenants of the Property
will obtain possession of their leased premises by Closing
and pay all rent and pass throughs on a current basis. All
work will be completed lien free and in a good and
workmanlike manner in accordance with all laws and as
required by the terms of the Leases. Seller shall remain
liable for all call back and punch list or guaranty work and
will assign Purchaser all warranties and guaranties at
Closing.
(c) All Seller's representations will be true and correct at
Closing.
(d) All Tenants will be paying rent and pass throughs on a
current basis except for Cost World Plus and the tenants
operating the Old Navy and Famous Footwear stores located on
the Property who may be paying percentage rent for a period
not to exceed sixty (60) days after Cost World Plus has
opened for business and Seller will be responsible for and
credit Purchaser at Closing with any shortfall in rents and
pass throughs between those amounts payable by Cost World
Plus pursuant to its Lease upon completion of construction
and all amounts being paid by such tenant.
17. RISK OF LOSS. The risk of loss or damage to the Property until the
Closing shall be borne by Seller.
18. TIME IS OF THE ESSENCE. Time is of the essence in this Agreement.
19. ADJUSTMENTS AND PRORATIONS.
(a) RENTS.
(i) All Rents collected or collectible by Seller for the
month of Closing shall be prorated by means of a
credit to Purchaser's pro-rata share thereof.
(ii) All Rents which are prepaid for any period after the
month of Closing or which are payable in advance for
any such period shall be credited to Purchaser.
12
(iii) All Rents for Cost Plus World will be
prorated in the manner described in Section
16(d) above.
(b) SECURITY DEPOSITS. The amount of all security and other
tenant deposits and interests due thereon, if any (other
than any such deposit used to offset any unpaid rent as
provided below), shall be credited to Purchaser at Closing.
(c) UTILITY CHARGES. To the extent not payable by the Tenants
directly to the applicable utilities, water, electricity,
sewer, telephone and other utility charges shall be prorated
based, to the extent practicable, on final meter readings
and final invoices, and if not practicable, on the basis of
the most recently available bills (subject to readjustment
on receipt of bills covering the period in which Closing
occurs).
(d) CAM RECONCILIATION.
(i) Certain of the Leases contain tenant obligations to
pay for common area expenses, operating expenses,
utilities, insurance premiums and costs and/or
additional charges of any other nature relating to
the Property and/or certain portions thereof
(collectively, the "CAM Charges"). 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. All Monthly CAM
Reimbursement Payments due and payable (regardless
of whether collected) under the Leases for the
calendar month in which Closing occurs shall be
pro-rated between Seller and Purchaser, on a per
diem basis, with Seller providing a credit to
Purchaser at Closing for its share of those Monthly
CAM Reimbursement Payments received by Seller based
on the number of days from and including the Closing
Date to the end of the month.
(ii) At Closing, Seller will credit Purchaser with any
credit balance, if any, in any tenant's CAM charges
account. With respect to the period from January 1,
2004 to the Closing Date, Seller and Purchaser shall
work together in good faith after Closing to compare
on a tenant-by-tenant basis the actual CAM Charges
incurred by Seller with respect to such tenant and
the actual Monthly CAM Reimbursement Payments
received by Seller from such tenant up to the
Closing Date. Seller and Purchaser shall mutually
agree upon and sign a schedule that sets forth on a
tenant-by-tenant basis a reconciliation based upon
those actual expenses incurred by Seller and
reimbursements received by Seller (each a
"Reconciliation"). The Reconciliation shall be
completed not later than thirty (30) days after
Purchaser and the tenants of the Property have
reconciled CAM Charges for the 2004 calendar year
and Seller and Purchaser, as the case may be, will
pay the other party, not later than ten (10) days
following completion of the Reconciliation, any
amount determined to be owing to such party
13
pursuant to the Reconciliation. Seller and Purchaser agree
to cooperate with each other in connection with the
reconciliation of percentage rent, CAM Charges and other
charges passed through to tenants under the Leases for
calendar year 2004.
(e) TAXES.
(i) Xxx 0 (xxxxxxxxx xx Xxxxx 0 xx Xxxxxxx X) is taxed
as a separate tax parcel and the Tenant of such lot
pays taxes directly, therefore, there shall be no
tax proration for Lot 3.
(ii) All taxes and installments of special assessments
becoming due and accruing during the 2004 calendar
year for Xxx 0 (xxxxxxxxx xx Xxxxx 0 xx Xxxxxxx X)
shall be prorated between Seller and Purchaser as
follows:
On or before Closing, Seller will pay the second installment of taxes and
installments for the 2003 tax year payable in May, 2004. At Closing, Seller
will credit Purchaser for all (i) monthly amounts collected for real estate
and other taxes and installments of special assessments from any tenant who
pays estimated taxes on a monthly basis, (ii) monthly amounts for all
spaces which were vacant for any portion of 2004 from January 1, 2004 until
the earlier of (x) a tenant occupying such vacancy and paying estimated
taxes on a monthly basis or (y) the Closing Date and (iii) monthly amounts
from any tenant paying percentage rent in lieu of basic minimum rent from
January 1, 2004 until such tenant has commenced or is anticipated to
commence being responsible for payments of real estate taxes or special
assessments for its leased premises.
(f) CALCULATION OF PRORATIONS. For purposes of calculating
prorations:
(i) Purchaser shall be deemed to be in title to the
Property, and therefore entitled to the income
therefrom and responsible for the expenses thereof,
through and including the Closing Date.
(ii) All prorations shall be made on the basis of the
actual number of days of the applicable billing
period which shall have elapsed as of the Closing
Date and the actual number of days in such
applicable billing period.
(iii) The amounts of all such prorations shall be final.
20. TRANSFER TO MEMBERS. Purchaser acknowledges that, prior to Closing,
Seller may distribute its assets, including the Property, to its members and
each member would then transfer its interest in the Property to Purchaser
pursuant to a separate special warranty deed as provided herein. Each member
will expressly assume the obligations of Seller hereunder and both the Seller
and each such member will be liable on a joint and several basis for Seller's
obligations under this Agreement. Any member may elect to affect the sale of the
Property as an
14
exchange pursuant to Section 1031 of the Internal Revenue Code. Purchaser agrees
to cooperate in the accomplishment of these actions, provided that Purchaser
shall incur no liability or expense beyond those inherent in an acquisition of
the Property nor be delayed in the Closing.
21. CONFIDENTIALITY. The terms of this Agreement and any other information
disclosed to or received by Purchaser in connection with the sale of the
Property contemplated herein (the "Confidential Information"), is of a
confidential nature. Seller and Purchaser agree that such Confidential
Information will be kept confidential and will be disclosed only to those
employees, officers, directors, representatives, agents or advisors (i) that
require such information for the purpose of evaluating the transactions
described in this Agreement, (but to the extent practicable, only such part that
is so required) and (ii) who are informed of the confidential nature of such
Confidential Information and the obligation to not disclose the same. In the
event the sale of the Property does not close, Purchaser shall immediately
return all Confidential Information to Seller.
22. AS-IS CONDITION. Except for the express representations and warranties
of Seller set forth in the special warranty deed or this Agreement, Purchaser
acknowledges and agrees that it will be purchasing the Property based solely
upon its inspections and investigations of the Property, and that Purchaser will
be purchasing the Property "as is" and "with all faults", based upon the
condition of the Property as of the date of this Agreement, ordinary wear and
tear excepted and that Seller makes no warranty or representation, of any kind
or nature, express or implied, or arising by operation of law, including, but
not limited to, any warranty of condition, habitability, merchantability or
fitness for a particular purpose, in respect of the Property. Purchaser hereby
releases Seller from any and all liability in connection with any claims which
Purchaser may have against Seller arising from any actions described herein.
Purchaser hereby agrees not to assert any claims for contribution, cost recovery
or otherwise, against Seller relating directly or indirectly to the existence of
asbestos or hazardous materials or substances on, or environmental conditions
of, the Property, whether known or unknown. The provisions of this section shall
survive the Closing and transfer of the special warranty deed.
23. ENTIRE AGREEMENT. This Agreement, together with Exhibits A and B,
represents the entire agreement and understanding of the parties hereto with
reference to the transactions set forth herein, and no representations,
warranties or covenants have been made in connection with this Agreement other
than those expressly set forth herein. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement
and all prior drafts of this Agreement, all of which are merged into this
Agreement. The Exhibits attached hereto are a part of this Agreement as if fully
set forth herein.
24. ACCEPTANCE. This Agreement is presented to Seller for acceptance in
triplicate originals, executed by Purchaser, and shall be of no force or effect
unless on or before 5:00 p.m. on February 27, 2004, Purchaser has received two
originals duly executed by Seller evidencing Seller's acceptance hereof. If
Purchaser does not receive such duly-executed originals within that time, this
Agreement shall be of no force or effect.
15
IN WITNESS WHEREOF, said parties hereunto subscribe their names executed in
three (3) originals.
PURCHASER: INLAND REAL ESTATE ACQUISITIONS, INC.,
a Delaware corporation
By: /s/ Xxx Xxxxxxx
----------------------------------------------
Xxx Xxxxxxx, Senior Vice President
Date: Feb 26, 2004
SELLER: PINE RIDGE PLAZA, LLC,
a Missouri limited liability company
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------
Xxxxx X. Xxxxx, Manager
Date: Feb 27, 2004
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
16
EXHIBIT A
Legal Description
TRACT 1:
XXXX 0 xxx 0, XXXX XXXXX XXXXX ADDITION, a subdivision in the City of
Xxxxxxxx, Xxxxxxx County, Kansas.
TRACT 2:
An easement interest in:
A tract of land in XXX 0, XXXX XXXXX XXXXX ADDITION, a subdivision in the
City of Xxxxxxxx, Xxxxxxx County, Kansas, described as follows: Beginning
at the Southwest corner of said Lot 1; then North 87 degrees 44 minutes 45
seconds East, along the South line of said Lot 1, a distance of 40.00 feet;
thence North 02 degrees 17 minutes 30 seconds West, parallel with the West
line of said Lot 1, 75.00 feet; thence Westerly to the West line of said
Lot 1 at a point 80.00 feet North of the Southwest corner thereof; then
South, along the West line of sale Lot 1, 80.00 feet to the point of
beginning.
17
EXHIBIT B
2/26/04 XXXXXXXXXX REAL ESTATE CO., LC 2:31 pm
User: SJE Commercial Rent Roll Page: 1
Report Date From: 2/01/04 To: 2/28/04
Property: PINE RIDGE PLAZA, LLC
LAWRENCE, KS
TERM PRORATED BASE RENT
SQ. FOOT ----------------- UNIT INFO BASE RENT RENT PER INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/TR (DATE)
----------------------------- ------------ -------- -------- -------- --------- --------- -------- ---------
KOHL'S DEPARTMENT STORE, INC. 700-3 80656 3/01/98 1/30/19 30000.00 360000.00 4.46 3/01/98
Comments: ADMIN FEE EXCLUSIVE OF UTILITIES, TAXES & INS 3/01/09
LL & T SHALL HAVE RIGHT W/90 DAYS NOTICE TO ASSUME/ 3/01/14
REQUIRE RESPONSIBILITY FOR MAINTENANCE AND REPAIR
OF COMMON AREAS.
IHOP 700-6 0 11/02/99 11/30/19 4584.00 55008.00 0.00 12/01/02
12/01/04
12/01/14
FAMOUS FOOTWEAR 700-303 12000 5/24/01 5/31/11 13000.00 100000.00 15.00 6/01/01
Comments: T SHALL REPORT SALES MONTHLY. TERMINATION-T SHALL 6/01/06
HAVE RIGHT TO TERMINATE IN THE EVENT SALES MADE DURING
49-60 MONTHS ARE LESS THAN $2,500,000. TERMINATION
PENALTY $30,000 WITH 3 MONTH NOTICE TO LL AFTER 12
MONTHS PERIOD.
OLD NAVY 700-103 22000 7/08/01 7/31/06 18333.33 219999.96 10.00 7/01/01
BATH & BODY WORKS, INC. 700-105 2500 1/17/02 1/31/12 3125.00 37500.00 15.00 1/01/02
Comments: TENANT MAINTAINS FIRE/SPRINKLER SYSTEM WITHIN 1/01/07
DEMISED PREMISES. CAM CAPPED AT .43/YEAR EXCLUDES
SNOW, SAND, INS & UTILITIES. TERMINATION RIGHT 30
DAYS NOTICE TO LL GIVEN WITHIN 90 END OF 36 FULL
MONTHS AND END OF 60TH MONTH.
XXXXX'X DIAMOND SHOP 700-106 1375 2/01/02 1/31/12 2063.50 24750.00 18.00 2/01/02
Comments: IF TENANT BUSINESS IS INTERRUPTED FOR MORE THAN 30 2/01/05
DAYS, RENT SHALL BE ABATED FOR PERIOD OF INTERRUPTION 2/01/07
2/01/10
DEALS, NOTHING OVER A DOLLAR 700-107 9862 8/01/02 1/31/08 10683.83 128205.96 13.00 9/01/02
Comments: PREMISES SHALL BE SEPARATELY METERED AT TIME OF
DELIVERY TO TENANT. T CAN CONDUCT SEASONAL SIDEWALK
SALES W/30 DAYS NOT T RIGHT TO SELF INS. FOR LIAB,
FIRE & EXTENED. T PAYS $1,500 TO LL FOR ASSIGN OR
SUBLET. SNOW SALT & INS EXCLUDED CAP.
ELECTRONICS BOUTIQUE OF AM 700-108 2190 3/24/03 3/24/08 3421.88 41062.56 18.75 4/01/03
ASSON ENTERPRISES INC. 700-109 2190 5/09/03 5/31/08 2609.75 31317.00 14.30 10/01/03
Comments: IN THE EVENT OF DEFAULT, FRANCHISOR MUST BE NOTIFIED
TENANT RESPONSIBLE FOR HVAC
& B DELI, INC. 700-110 5000 4/01/02 2/28/12 7500.00 90000.00 18.00 4/01/02
Comments: $1,000 ASSIGNMENT/SUBLET FEE PAYABLE TO LL. TENANT 4/01/07
TO PROVIDE FINANCIAL EACH YEAR. REPORT GROSS SALES
FOR 3 YEARS EXTERMINATING SVCS EVERY QUARTER SEE
RESTARAUNT RIDER 1 CONSTRUCTION ALLOWANCE $86,000
PAID BY LL.
BASE RENT
INCREASE --OPERATING EXPENSE-- --REAL ESTATE TAX-- --CPI EXPENSE--- ----GROSS RENTS-----
TENANT (AMOUNT) MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
----------------------------- ---------- --------------------- --------- -------- ------- -------- --------- ---------
KOHL'S DEPARTMENT STORE, INC. 30,000.00 2,650.00 0.39 0.00 0.00 0.00 0.00 4.86 32,650.00
32,281.67
34,176.17
IHOP 4,584.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 4,384.00
5,042.00
5,546.00
FAMOUS FOOTWEAR 15,000.00 410.00 0.41 1,650.00 1.65 0.00 0.00 17.06 17,060.00
16,000.00
OLD NAVY 28,333.33 700.00 0.38 0.00 0.00 0.00 0.00 10.38 19,033.33
BATH & BODY WORKS, INC. 3,125.00 115.00 0.55 215.00 1.03 0.00 0.00 16.58 3,455.00
3,229.17
XXXXX'X DIAMOND SHOP 2,062.50 100.00 0.87 110.00 0.96 0.00 0.00 19.83 2,272.50
2,177.00
2,291.67
2,406.25
DEALS, NOTHING OVER A DOLLAR 10,683.83 493.10 0.60 904.02 1.10 0.00 0.00 14.70 12,080.95
ELECTRONICS BOUTIQUE OF AM 3,421.88 78.48 0.43 200.75 1.10 31.03 0.17 20.45 3,732.14
ASSON ENTERPRISES INC 2,609.75 178.85 0.98 273.75 1.50 47.45 0.26 17.04 3,109.80
& B DELI, INC. 7,500.00 262.00 0.63 460.00 1.10 0.00 0.00 19.73 8,222.00
8,250.00
2/26/04 XXXXXXXXXX REAL ESTATE CO., LC 2:31 pm
User: SJE Commercial Rent Roll Page: 2
Report Date From: 2/01/04 To: 2/28/04
Property: PINE RIDGE PLAZA, LLC
LAWRENCE, KS
TERM PRORATED BASE RENT
SQ. FOOT ----------------- UNIT INFO BASE RENT RENT PER INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/TR (DATE)
----------------------------- ------------ -------- -------- -------- --------- --------- -------- ---------
CUST PLUS, INC. 700-200 18297 0.00 0.00 0.00
OX COMPANIES, INC. 700-205 25420 0.00 0.00 0.00 4/01/04
4/01/09
MICHAELS STORES INC. 700-210 24628 1/15/04 2/28/14 16625.00 199500.00 8.10 3/15/04
Comments: LANDLORD RESP FOR MAINTENANCE OF HVAC FOR FIRST 4/02/04
5 YEARS TENANT RESP FOR PREVENTATIVE MAINTENANCE
CONTRACT 4 FIVE YEAR OPTIONS OF RENEWAL
BED BATH & BEYOND, INC. 700-215 26797 10/15/03 3/31/14 20000.00 240000.00 8.96 1/02/04
Comments: REPAIRS NOT ALLOWED IN COMMON AREA IN AUG, NOV &
DEC EXCEPT EMERGENCY. IT TO HAVE TRASH COMPACTOR
AT IT COST. IT RESP FOR HVAC AFTER 1 YEAR ANNIV OF
DELIVERY DATE. LL RESP FOR STRUCTURE, ROOF JOISTS,
ROOF, EXT WALLS & PAINT, FOUND & XXXX
----------------------------- ------------ -------- -------- -------- --------- --------- -------- ---------
TOTALS: 232913 133945.29 1607343.48 6.90
Total Occupied Square Feet : 232913
Total Vacant Square Feet : 0
----------------------------- ------------ -------- -------- -------- --------- --------- -------- ---------
GRANT TOTALS: 232913 133945.29 1607343.48 6.90
Total Occupied Square Feet : 232913
Total Vacant Square Feet : 0
BASE RENT
INCREASE --OPERATING EXPENSE-- --REAL ESTATE TAX-- --CPI EXPENSE--- ----GROSS RENTS------
TENANT (AMOUNT) MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
----------------------------- ---------- --------------------- --------- -------- ------- -------- --------- ----------
CUST PLUS, INC. 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
OX COMPANIES, INC. 18,005.83 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
19,065.00
MICHAELS STORES INC. 9,312.50 0.00 0.00 0.00 0.00 0.00 0.00 8.10 16,625.00
16,625.00
BED BATH & BEYOND, INC. 20,000.00 1,600.00 0.72 0.00 0.00 400.00 0.18 9.85 22,000.00
----------------------------- ---------- --------------------- --------- -------- ------- -------- --------- ----------
TOTALS:
Total Occupied Square Feet : 6,587.43 0.34 3,813.52 0.20 478.48 0.02 7.46 144,824.72
Total Vacant Square Feet :
----------------------------- ---------- --------------------- --------- -------- ------- -------- --------- ----------
GRANT TOTALS: 6,587.43 0.34 3,813.52 0.20 478.48 0.02 7.46 144,824.72
Total Occupied Square Feet :
Total Vacant Square Feet :
EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
To: _____________________, its Successors and Assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
___________________________________________("Lender")
Re:
__________________________
__________________________
__________________________ (the "Property")
Gentlemen:
The following statements are made with the knowledge that you, as purchaser
("Purchaser"), are relying on them in connection with your purchase of the
Property and the assignment to you of the lease referred to below in connection
therewith, and you and your successors and assigns and successor owners of the
Property, as well as Lender and any other mortgage lender on the Property and
the current Landlord (as hereafter defined) may rely on them for all purposes.
The undersigned ("Tenant"), being the Tenant under the lease referred to in
Paragraph 1 below and attached hereto as Schedule 1, covering certain premises
("Leased Premises") at the Property, hereby certifies to you that the following
statements are true, correct and complete as of the date hereof:
1. Tenant is the tenant under a lease (the "Lease") currently with
________________, as landlord ("Landlord"), dated________________, 20_____,
demising to Tenant approximately _______(_____) square feet at the Property, a
true, correct and complete copy of which is attached hereto as Schedule 1. The
term Lease includes all amendments and modifications to the Lease and other
agreements with respect thereto. There have been no amendments, modifications or
other agreements relating to the Lease except as attached hereto on Schedule 1.
Possession of the Leased Premises was delivered to Tenant on________, ____,
20_____. The initial term of the Lease commenced on ________, 20_____, and will
expire on ________ 20____, exclusive of unexercised renewal options and
extension options contained in the Lease. There have been no amendments,
modifications or revisions to the Lease, and there are no agreements of any kind
between Landlord and Tenant regarding the Leased Premises, except as provided in
the Lease or except as follows: (if none, write "none"):______________. The net
rentable square footage of the entire shopping center on the Property is
________square feet.
19
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 and is presently occupying the Leased Premises.
Neither the Lease nor any interest in it has been assigned, transferred, or
mortgaged by Tenant, and no sublease, concession agreement or license covering
the Leased Premises, or any portion of the Leased Premises, has been entered
into by Tenant, except as follows: (if none, write "none"):
___________________.
4. Tenant is currently obligated to pay fixed or base rent under the
Lease in the annual amount of_____________________________Dollars
($______________ ), payable in monthly installments of__________ Dollars
($__________ ). Rent has been paid under the Lease
through _________________________________, 20_____ and no sums have been prepaid
to Landlord, either as the last month's rent or otherwise, except as follows:
(if none, write "none"):_____________________. No sums have been deposited with
Landlord other than ________________________________Dollars
($____________________) deposited as security under the Lease. Except as
specifically stated in the Lease, Tenant is entitled to no rent concessions,
free rent, allowances or other similar compensation in connection with renting
the Leased Premises. Tenant is currently paying monthly installments of
$__________________________as common area maintenance, tax and other expense
pass-through rentals due under the Lease in addition to the base rent described
above.
5. To Tenant's knowledge, neither Landlord nor Tenant is in default under
the Lease beyond any applicable cure period and, to Tenant's knowledge, no event
has occurred which, with the giving of notice or passage of time, or both, could
result in such a default. Tenant has no knowledge of any setoffs, claims or
defenses to enforcement of the Lease in accordance with its terms.
6. Without limiting the generality of the statement made in Paragraph 1
above, 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, (d) any option or right of first
refusal to purchase the Leased Premises or the Property or any part thereof, or
(e) any option to terminate the Lease prior to its stated expiration.
7. Neither Tenant nor any guarantor of Tenant is the subject of any
bankruptcy, reorganization, insolvency, readjustment of deft, dissolution or
liquidation proceeding, and to the
20
best knowledge of Tenant no such proceeding is contemplated or threatened.
Executed this___________________ day of______, 2004.
TENANT
----------------------------------
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
By execution of this Tenant Estoppel Certificate, the undersigned confirms
that it is the guarantor ("Guarantor") of the Lease pursuant to that certain
guaranty ("Guaranty") dated______________, 20___. The Guaranty has not been
amended, modified or released. Neither the Tenant nor the Landlord is in default
of the Lease or the Guaranty, Guarantor, as of the date hereof, has no defenses
to enforcement of the Guaranty and the Guaranty remains in full force and effect
in accordance with its terms.
GUARANTOR:
By:
-------------------------------
Print Name:
-----------------------
Title:
---------------------------
Date:
-----------------------------
21
