Exhibit 10.321
PURCHASE AND SALE AGREEMENT
(Manchester Xxxxxxx)
THIS AGREEMENT is made as of the day of the 13th day of July, 2004,
between MANCHESTER-XXXXX LIMITED PARTNERSHIP, a Missouri limited partnership
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Buyer").
BACKGROUND
Buyer wishes to purchase a shopping center near the intersection of Manchester
Road and Xxxxx Road, in the County of St. Louis, State of Missouri, owned by
Seller, known as Manchester Xxxxxxx (the "Shopping Center");
Seller wishes to sell the Shopping Center to Buyer.
In consideration of the mutual agreements herein, and other good and
valuable consideration, including the sum of One Hundred Dollars ($100.00) paid
to Seller by Buyer, the receipt of which is hereby acknowledged, Seller agrees
to sell to Buyer and Buyer agrees to purchase the Shopping Center from Seller,
subject to the following terms and conditions:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 AGREEMENT means this Purchase and Sale Agreement, which shall
supercede all prior agreements and understandings between Buyer and Seller
concerning the sale and purchase of the Property.
1.2 ALLOCATION DATE means the day immediately prior to the Closing
Date.
1.3 BROKER means the real estate brokerage firm listed as Broker on
Exhibit 1.3 of this Agreement. Participating broker(s), if any, are also
identified on Exhibit 1.3.
1.4 BUYER means the person or entity named as Buyer in the
introductory paragraph of this Agreement.
1.5 CLOSING means generally the execution and delivery of those
documents and funds necessary to effect the sale of the Property by Seller to
Buyer.
1.6 CLOSING Date means the date on which the Closing occurs.
1.7 CONTRACTS means all service contracts, agreements and other
instruments concerning the ownership, operation and leasing of the Property as
set forth in Exhibit 1.7 attached hereto.
1.8 XXXXXXX MONEY DEPOSIT means the deposit delivered by Buyer to
Escrow Agent prior to the Closing under Section 2.2 of this Agreement, together
with the earnings thereon, if any.
1.9 EFFECTIVE DATE means the next business day following the date upon
which the fully executed Agreement has been received by the Escrow Agent and
transmitted by the Escrow Agent to the parties.
1.10 ENVIRONMENTAL LAW means any current legal requirement pertaining
to (a) the protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, protection or use of natural resources and
wildlife, (c) the protection or use of source water and groundwater, (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Material or (e)
pollution (including any release to air, land, surface water, and groundwater);
and includes, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986,42 USC Sections 9601 ET SEQ., Solid Waste
Disposal Act, as amended by the Resource Conservation Act of 1976 and Hazardous
and Solid Waste Amendments of 1984, 42 USC Sections 6901 et seq., Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
Sections 1251 ET SEQ., Clean Air Act of 1966, as amended, 42 USC Sections 7401
ET SEQ., Toxic Substances Control Act of 1976, 15 USC Sections 2601 ET SEQ.,
Hazardous Materials Transportation Act, 49 USC App. Sections 1801, Occupational
Safety and Health Act of 1970, as amended, 29 USC Sections 651 ET SEQ., Oil
Pollution Act of 1990, 33 USC Sections 2701 et seq., Emergency Planning and
Community Right-to-Know Act of 1986, 42 USC App. Sections 11001 ET SEQ.,
National Environmental Policy Act of 1969,42 USC Sections 4321 ET SEQ., Safe
Drinking Water Act of 1974, as amended by 42 USC Sections 300(f) et seq., and
any similar, implementing or successor law, any amendment, rule, regulation,
order or directive, issued thereunder.
1.11 ESCROW AGENT means the firm identified as the Escrow Agent in
Section 12.2 of this Agreement.
1.12 GOVERNMENTAL APPROVAL means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption, decision, action or
approval of a governmental authority.
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1.13 HAZARDOUS MATERIAL means any hazardous or toxic substance as
defined in or regulated by any Environmental Law in effect at the pertinent date
or dates.
1.14 HAZARDOUS MATERIAL ACTIVITY means any activity, event, or
occurrence involving a Hazardous Material, including, without limitation, the
manufacture, possession, presence, use, generation, transportation, treatment,
storage, disposal, release, threatened release, abatement, removal, remediation,
handling or corrective or response action to any Hazardous Material.
1.15 IMPROVEMENTS means all buildings, structures or other improvements
situated on the Real Property.
1.16 INSPECTION PERIOD means the period of time which begins on the
Effective Date and ends at 5:00 PM (CDT) on July 27, 2004.
1.17 LEASES means all leases and other occupancy agreements permitting
persons to lease or occupy all or any portion of the Property.
1.18 MATERIALS means the documents listed on Exhibit 1.18 to this
Agreement.
1.19 MAJOR TENANTS are the tenants identified on the Schedule of Major
Tenants attached as Exhibit 1.19 to this Agreement.
1.20 PERMITTED EXCEPTIONS means only the following interests, liens and
encumbrances:
(a) Liens for ad valorem taxes not payable on or before
Closing;
(b) Rights of tenants under Leases; and
(c) Other matters determined to be acceptable by Buyer during
the title review period, as contemplated by Article 7 of this Agreement.
1.21 PERSONAL PROPERTY means all (a) sprinkler, plumbing, heating,
air-conditioning, electric power or lighting, incinerating, ventilating and
cooling systems, with each of their respective appurtenant furnaces, boilers,
engines, motors, dynamos, radiators, pipes, wiring and other apparatus,
equipment and fixtures, elevators, partitions, fire prevention and extinguishing
systems located in or on the Improvements, (b) the Materials, (c) other tangible
personal property used in connection with the ownership or operation of the
Improvements, provided the same are now owned or are acquired by Seller prior to
the Closing, and (d) all trade names, franchises, licenses, permits, easements,
development rights and approvals, deposits, credits, petroleum and mineral
interests and royalties, air and water rights, construction and product
warranties, the Leases (including all security deposits and guarantees given
with
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respect thereto), Contracts and Materials, and all other intangibles owned or
used by or for the benefit of Seller in connection with the Property.
1.22 PROPERTY means collectively the Real Property, the Improvements
and the Personal Property.
1.23 PURCHASE PRICE means the consideration agreed to be paid by Buyer
to Seller for the purchase of the Property as set forth in Section 2.1 (subject
to prorations and adjustments as provided herein).
1.24 REAL PROPERTY means the lands more particularly described on
Exhibit 1.2 of this Agreement, together with all easements, licenses,
privileges, rights of way and other appurtenances pertaining to or accruing to
the benefit of such lands.
1.25 RENT ROLL means the Leases listed on Exhibit 1.25 of this
Agreement, identifying with particularity the space leased by each tenant, the
term (including extension options) of each such Lease.
1.26 SELLER means the person or entity named as Seller in the
introductory paragraph this Agreement.
1.27 SELLER FINANCIAL STATEMENTS means the unaudited balance sheets and
statements of income, cash-flows; and changes in financial position prepared by
Seller for the Property, as, of and for the two (2) calendar years next
preceding the date of this Agreement and all monthly and quarterly reports of
income, expense and cash flow prepared by Seller for the Property, which shall
be consistent with past practice, for any such period beginning after the latest
of such calendar years, and ending prior to Closing.
1.28 SHOPPING CENTER means the Shopping Center identified on the
initial page hereof.
1.29 SURVEY means a map of a stake survey of the Real Property and
Improvements prepared by a surveyor acceptable to Buyer, which shall comply with
the ALTA/ACSM Survey Requirements 1999 for ALTA/ACSM land title surveys jointly
established and adopted in 1999, the American Land Title Association, American
Congress on Surveying and Mapping, and the National Society of Professional
Engineers, including optional items 1, 2, 3, 4, 6, 7 (a, b and c), 8, 9, 10, 11,
13, 14, 15 and 16 of Table "A" thereof, which meets the accuracy standards (as
adopted by ALTA and ACSIVI and in effect on the date of the Survey). The Survey
shall be dated not earlier than thirty (30) days prior to the Closing, and shall
be certified to Buyer, Seller, and the Title Company. The Survey shall establish
a precise legal description for the Real Property and shall locate all wetlands
and flood plain areas, including their bounding jurisdictional lines. The
surveyor shall certify on the Survey the square footage of the Real Property,
measured to the nearest hundredth, the flood and
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earthquake zone status of the Property, and such other certifications as are
required by Buyer's insurer or lender, all in accordance with the form and
requirements attached hereto as Exhibit 1.29.
1.30 TENANT ESTOPPEL LETTER means a letter or other certificate from a
tenant certifying as to certain matters regarding such tenant's Lease, in
substantially the same form as Exhibit 1.30 of this Agreement, or in the case of
national or regional "credit" tenants identified as such on the Rent Roll, the
form customarily used by such tenant provided the information disclosed therein
is acceptable to Buyer.
1.31 TITLE COMPANY means Escrow Agent.
1.32 TITLE DEFECT means any exception in the Title Insurance Commitment
or any matter disclosed by the Survey, other than a Permitted Exception.
1.33 TITLE POLICY means an ALTA owners' policy of title insurance with
extended coverage in the amount of the Purchase Price insuring marketable fee
simple title in Buyer, subject only to the Permitted Exceptions, issued by the
Title Company, together with the following endorsements:
--3.1 Zoning (long form) with parking and loading docks
--Owner's Comprehensive
--Survey
--Access
--P.I.N.
--Subdivision
--Utility Facility
--Contiguity
--Removal of creditors' rights exception
--Removal of arbitration clause
--Environmental lien
1.34 TITLE INSURANCE COMMITMENT means a preliminary title report
whereby the Title Company agrees to issue the Title Policy to Buyer, together
with copies of all instruments which are exceptions noted therein or conditions
to be satisfied. The Title Insurance Commitment shall include the above
described endorsements to the Title Policy and shall also note the tax
classification and reference number(s) for the Property, and the amount of taxes
paid or payable for the most recent tax year.
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2. PURCHASE PRICE AND PAYMENT
2.1 PURCHASE PRICE: PAYMENT. The total Purchase Price for the Property
(subject to adjustment as provided herein) shall be Fifty Six Million Two
Hundred Thousand and 00/100 Dollars ($56,200,000.00). The Purchase Price shall
be payable by wire transfer of immediately available Federal funds at Closing.
2.2 XXXXXXX MONEY DEPOSIT. An xxxxxxx money deposit in the amount of
Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00) shall be deposited
with Escrow Agent by Buyer within one (1) business day after execution and
delivery of this Agreement by all parties. This Agreement may be terminated by
Seller by notice to delivered to Escrow Agent by such deadline. The Xxxxxxx
Money Deposit shall be held as specifically provided in this Agreement and shall
be applied to the Purchase Price at Closing.
2.3 PRORATIONS. The following shall be adjusted between Seller and
Buyer and shall be prorated on a per diem basis as of midnight on the Allocation
Date (so that Buyer has the benefit of all income for the Closing Date and the
burden of all expenses for the Closing Date) but shall be adjusted as of
midnight of the Closing Date if the Purchase Price is not in the account of the
Title Company ready for disbursement as of noon on the Closing Date (so that, in
such event, Seller has the benefit of all income for the Closing Date and the
burden of the expenses for the Closing Date):
(a) Ad valorem taxes and assessments shall be prorated as of
midnight on the Allocation Date. If the amount of the Closing tax year's
property taxes are not available on the Closing Date, such taxes will be
prorated based upon the prior tax year's assessment for the Closing but shall be
reprorated when the actual tax bills for the year of Closing shall become
available (and this provision shall survive the Closing).
(b) To the extent not paid for by tenants under the Leases, water
rates and sewer charges or rentals (if not metered).
(c) To the extent not paid for by tenants under the Leases,
utility charges (including, but not limited to, water rates and sewer charges or
rentals if metered) shall not be apportioned, but Seller shall cause all utility
meters to be read not more than two (2) days before Closing Date, and Seller
agrees to pay promptly after receipt of all utility bills and charges accruing
up to and including the day preceding the Closing Date. If utility deposits are
assigned to Buyer, Seller shall receive a credit therefor at Closing.
(d) Rents and other fixed charges payable pursuant to the Leases.
At the Closing, Seller shall furnish to Buyer a complete and correct schedule of
all rents and other fixed charges which are then due and payable but which have
not been paid. Buyer shall have no obligation to Seller to collect any such
unpaid rents or other charges, and all rents and other charges collected
post-Closing by Buyer shall be first applied to current rents and charges due,
next to rents and charges past due (in
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reverse order to which they become past due) for the period after the Closing
Date through the then current rent period, and lastly to rents and charges past
due for the period prior to the Closing Date. To the extent rents and charges
for the period after the Closing Date are current, Buyer agrees that all unpaid
rents and other charges for the period prior to the Closing Date, if collected
by Buyer, shall be held by Buyer as trustee for Seller and shall be remitted by
Buyer to Seller. To the extent Seller collects rents and charges for Leases
after the Closing Date, Seller agrees to hold all collections in trust, and to
promptly turn over such collections to Buyer, and Buyer shall apply such funds
between Buyer and Seller in the manner provided herein. Percentage rents, if
any, shall be equitably prorated upon receipt based upon the number of days
during the applicable lease year which Seller owned the Property and the number
of days which Buyer owned the Property. Buyer shall reasonably cooperate with
Seller in its efforts, including litigation initiated by Seller at Seller's
expense (but not including any action for eviction or similar remedy), to
collect past due rents provided that, in Buyer's reasonable discretion such
cooperation shall not jeopardize Buyer's relationship with tenant(s) and further
provided that Buyer shall not be obligated to incur any expenses in connection
herewith. Any recovery by means of litigation shall belong entirely to Seller.
With respect to any amounts due under a lease to reimburse the landlord
for operating expenses of the Property (other than as payment of base rents or
percentage rents) whether due on a monthly, quarterly, semi-annual or annual
basis and whether payable as estimated payments or otherwise, including, without
limitation, common area maintenance charges, the tenant's pro rata share of ad
valorem taxes and assessments, the tenant's pro rata share of insurance
premiums, and similar charges (collectively, "Additional Rents"), such amounts
due pursuant to the Leases shall be prorated at Closing. At the end of each
applicable tenant billing/reconciliation period (whether on a calendar year or
other time basis; provided, if payments of Additional Rents are not reconciled
for any tenant, then the applicable billing/reconciliation period for such
tenant shall be deemed to be the calendar year of Closing), all payments of
Additional Rents attributable to such reconciliation/billing period shall be
adjusted and prorated between Seller and Buyer as provided below in the next
paragraphs.
Within sixty (60) days after the Closing Date, Seller agrees to provide
Buyer (i) a detailed operating expense statement for the actual costs incurred
by Seller for operating expenses and other tenant pass-through items that are
reimbursable to the landlord by tenants under the Leases (the "Tenant
Reimbursement Expenses") that covers the period from the beginning of the then
current tenant billing/reconciliation period through the Closing Date together
with copies of supporting invoices and other documentation supporting the
expenses; and (ii) a statement showing amounts actually collected by Seller as
Additional Rent for the period from the beginning of the then current tenant
billing/reconciliation period through the Closing Date. With respect to each
tenant, Buyer and Seller agree that they will promptly, at the end of the
current billing/reconciliation period in effect as of the Closing Date,
reconcile the tenant's payments of Additional Rent with Tenant Reimbursement
Expenses attributable to such tenant, and Buyer will xxxx the applicable tenant
promptly for any additional amounts
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owed by the tenants as Additional Rent to the landlord for payment of Tenant
Reimbursement Expenses.
In reconciling each tenant's payments of Additional Rent and Tenant
Reimbursement Expenses, Buyer and Seller agree (on a per tenant basis) to
reallocate between them the total amount actually collected by Buyer and Seller
as Additional Rent for the applicable billing/reconciliation period for each
applicable tenant based on the proportion that the actual costs incurred by each
party for Tenant Reimbursement Expenses attributable to such tenant during the
period the tenant was obligated to make payments of Additional Rents bears to
the total Tenant Reimbursement Expenses incurred by Buyer and Seller combined
for the applicable billing/reconciliation period for which the tenant is
obligated to pay Additional Rent. To the extent either party has collected more
than its share of tenant payments of Additional Rent for Tenant Reimbursement
Expenses as determined by the preceding sentence, such party shall promptly
remit such excess amount to the other party; provided, to the extent tenants are
due a refund for overpayment of Additional Rent attributable to any such excess
amount, Buyer may retain such excess amount for the purpose of reimbursing
tenants for overpayments of Additional Rent by tenants.
After making the adjustments provided by the previous paragraph, Buyer
will promptly remit Seller's pro rata share of any additional amounts actually
collected from tenants as the result of reconciliation billing to tenants for
Additional Rent due the landlord. In the event any amounts are owing to the
tenants, Buyer will notify Seller of its pro rata share of such amounts, with
appropriate back-up, and Seller will promptly within forty-five (45) days after
receipt of such notice, remit its share of such amounts to Buyer who will then
reimburse the tenants' amounts owed by the landlord. In reconciling the tenants'
payments of Additional Rent and determining the pro rata share due to or from
Seller, with respect to each tenant, the total amount owing to the tenant or the
total amount collected from the tenant, as applicable, shall be multiplied by a
fraction the numerator of which shall be the actual Tenant Reimbursement
Expenses incurred by Seller that are attributable to the applicable tenant
billing/reconciliation period during which such tenant was obligated to pay
reimbursements of Additional Rent to the landlord and the denominator of which
will be the total Tenant Reimbursement Expenses incurred by both Buyer and
Seller combined for the applicable tenant billing/reconciliation period for
expenses reimbursable by tenants as Additional Rent.
All adjustments set forth above shall be calculated on a tenant by tenant
basis. In calculating Tenant Reimbursement Expenses, no expenses shall be
included within Tenant Reimbursement Expenses unless such expenses are
reimbursable under the applicable Tenant Lease without giving effect to any
lease provisions creating caps on the total amount of such expenses that are
reimbursable to the landlord.
Notwithstanding anything herein to the contrary, Seller shall be solely
responsible, at Seller's sole cost and expense, for all tenant reimbursements,
credits
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and reconciliations due tenants for years prior to the year of Closing (or for
all reconciliation periods prior to the current reconciliation period in which
the Date of Closing Date occurs, as applicable) and shall indemnify and defend
Buyer from all costs, expenses and credits that may be due and payable to
tenants for any period relating to years prior to the year in which the Closing
occurs (or for all reconciliation periods which ended prior to the current
reconciliation period in which the Date of Closing occurs, as applicable). In
the event any tenants are due credits or reimbursements relating to the years
prior to the year in which the Closing occurs (or for all reconciliation periods
prior to the current reconciliation period in which the Date of Closing occurs,
as applicable), Buyer shall receive a credit at Closing against the Purchase
Price in the amount of such credits or reimbursements due tenants and Buyer
shall be responsible for paying such credits or reimbursements due tenants to
the extent, but only to the extent, of the credit given Buyer by Seller
hereunder.
(e) Seller shall give Buyer credits for (i) the aggregate amount
of tenant security deposits held pursuant to the Leases; and (ii) the aggregate
amount of any free rents or other rent concessions given to any tenants
attributable to the period from and including the date of Closing to the last
day of each applicable rent concession.
2.4 CLOSING COSTS.
(a) Seller shall pay:
(1) The costs, if any, of satisfying any liens, curing
title defects and recording any curative title documents;
(2) Prepayment or assumption fees on any mortgages;
(3) The costs, if any, of early termination of any
Contracts;
(4) The brokerage commission payable to Broker
(including any co-brokerage fees payable by Broker to other participating
brokers) incurred in connection with the sale of the Property to Buyer, if and
when this transaction closes, in accordance with a separate written agreement
between Broker and Seller;
(5) One-half of the Escrow Agent's fees;
(6) Seller's attorneys fees relating to the sale of the
Property;
(7) The costs of the Survey; and
(8) Any transfer taxes or similar fee or tax.
(b) Buyer shall pay:
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(1) The costs of Buyer's due diligence investigations;
(2) The costs of the Phase I environmental site
assessment to be obtained by Buyer;
(3) The premium for the Title Policy;
(4) One-half of the Escrow Agent's fees;
(5) The costs of recording the deed;
(6) Any fee payable to Buyer's Broker (as defined in
Section 11.1 hereof); and
(7) Buyer's attorneys' fees.
3. INSPECTION PERIOD AND CLOSING
3.1 INSPECTION PERIOD. Buyer shall have the Inspection Period within
which to physically inspect the Property, to conduct its due diligence and to
review and inspect the Materials. Seller shall provide copies of the Materials
if feasible and if not feasible shall provide Buyer with access to those
Materials as to which copying is not feasible. Buyer and Buyer's officers,
employees, consultants, attorneys and other authorized representatives shall
have the right to reasonable access to the Property and to the records of Seller
related thereto (including without limitation title information, property
leasing files, maintenance surveys, environmental assessment reports and other
information concerning the condition of the Property), at reasonable times
during the Inspection Period for the purpose of inspecting the Property, taking
soil and ground water samples, conducting Hazardous Materials inspections, tests
and assessments, reviewing the books and records of Seller concerning the
Property, evaluating the leasing and financial condition of the Property, and
otherwise conducting its due diligence review. Buyer hereby agrees to indemnify
and hold Seller harmless from any damages, liabilities or claims for property
damage or personal injury caused by Buyer and its agents and contractors in the
conduct of such inspections and investigations. Seller shall cooperate with and
assist Buyer in making such inspections, interviews and reviews. Seller shall
make available to Buyer such of the foregoing as may be in Seller's possession
in order to facilitate Buyer's due diligence. Seller shall give Buyer the
reasonable authorization that may be required by Buyer in order to gain access
to records or other information pertaining to the Property or the use thereof
maintained by any third party, governmental or quasi-governmental authorities or
organizations.
3.2 BUYER'S TERMINATION RIGHT. On or before the last day of the
Inspection Period, Buyer may, in its sole discretion, for any reason or for no
reason, elect whether or not to go forward with this Agreement to Closing, which
election shall be made by notice to Seller given on or before the last day of
the Inspection Period. If such notice
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is timely given, this Agreement shall be terminated and of no force and effect,
and the Xxxxxxx Money Deposit shall be immediately returned to Buyer without the
requirement of further direction from Seller. If such notice is not timely
given, Buyer shall be deemed to have waived its right to terminate this
Agreement. Buyer shall return to Seller the materials and information furnished
to Buyer by Seller promptly after Buyer's receipt of the Xxxxxxx Money Deposit.
After the conclusion of the Inspection Period the Xxxxxxx Money Deposit shall
not be refundable except upon terms otherwise expressly set forth herein.
3.3 DELIVERY. Buyer acknowledges that Seller has prior to the
Effective Date delivered to Buyer all of the Materials.
3.4 TIME AND PLACE OF CLOSING. The Closing shall take place in escrow
through the offices of Escrow Agent on August 5, 2004 at 10:00 A.M., or at such
other time and place and in such manner as Seller and Buyer may agree.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS OF SELLER
Seller warrants and represents to the best of its knowledge as follows as
of the date of this Agreement and as of the Closing and where indicated
covenants and agrees as follows:
4.1 ORGANIZATION; AUTHORITY. Seller is duly organized and validly
existing under the laws of the State of Missouri. Seller has full power and
authority to enter into and perform this Agreement in accordance with its terms.
The person executing this Agreement has been duly authorized to do so on behalf
of Seller.
4.2 AUTHORIZATION: VALIDITY. Subject to formal approval by the Board
of Trustees of a partner in Seller (which approval Seller expects to receive on
or before July 9, 2004), the execution and delivery of this Agreement by Seller
and Seller's consummation of the transactions contemplated by this Agreement
have been duly and validly authorized. Assuming the valid execution and delivery
of this Agreement by Buyer and subject to the aforesaid approval by the Board of
Trustees of a partner in Seller, this Agreement constitutes a legal, valid and
binding agreement of Seller enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally, and the exercise
of judicial discretion in accordance with in general principles of equity.
4.3 TITLE. Seller is the owner in fee simple of all of the Property.
4.4 SALE AGREEMENTS. With the exception of the right of first refusal
of Boston Market to purchase its leased outparcel should such outparcel be
offered for sale independently of the balance of the Shopping Center as set
forth in the Lease to Boston Market, the Property is not subject to any
outstanding agreement of sale,
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option, or other right of any third party to acquire any interest therein,
except this Agreement.
4.5 LITIGATION. Seller has received no notice indicating that there is
any litigation or proceeding pending, or to the best of Seller's knowledge,
threatened against Seller relating to the Property except as otherwise stated
herein.
4.6 LEASES. There are no Leases affecting the Property, oral or
written, except as listed on the Rent Roll. Copies of the Leases, which have
been delivered to Buyer or shall be delivered to Buyer within five (5) days from
the date hereof, are true, correct and complete copies thereof. Between the date
hereof and the Closing Date, Seller will enforce the Leases in accordance with
their terms; and Seller will not terminate or modify existing Leases, enter
into any new Leases or grant additional renewal rights to any tenant, without
the consent of Buyer. Except as may be set forth in a Tenant Estoppel Letter, to
the best of Seller's knowledge: (i) all of the Property's Leases are in good
standing; (ii) no defaults exist thereunder; (iii) no rent or reimbursement has
been paid more than one (1) month in advance; and (iv) no security deposit has
been paid; (v) no tenants under the Leases are entitled to interest on any
security deposits, except as stated on the Rent Roll; (vi) no tenant under any
Lease has or will be promised any inducement, concession or consideration by
Seller other than as expressly stated in such Lease; and (vii) except as stated
therein there are and will be no side agreements between Seller and any tenant.
There are no leasing commissions or other obligations to brokers due or which
will become due under any of the Leases which will not have been paid by Seller
prior to the Closing. To the best of Seller's knowledge there are no violations
of any exclusive or restrictive use clause granted to any tenant under any
Lease.
4.7 FINANCIAL STATEMENTS. Each of the Seller Financial Statements
delivered or to be delivered to Buyer hereunder has or will have been prepared
in accordance with the books and records of Seller and presents fairly in all
material respects the financial condition, results of operations and cash flows
for the Property as of and for the periods to which they relate. Such Financial
Statements are in conformity with generally accepted accounting principles
applied on a consistent basis. There has been no material adverse change in the
operations of the Property or its prospects since the date of the most recent
Seller Financial Statements. Seller covenants to furnish promptly to Buyer
copies of the Seller Financial Statements together with unaudited updated
monthly reports of cash flow for interim periods beginning after the concluding
date(s) of the latest of such Seller Financial Statements, to the Closing Date.
Buyer and its independent certified accountants shall be given access to
Seller's books and records at any time prior to Closing upon reasonable advance
notice in order that they may verify the Seller Financial Statements.
4.8 CONTRACTS. Except for the Leases and the Contracts, there are no
management, service, maintenance, utility or other contracts or agreements
affecting the Property, oral or written, which extend beyond the Closing Date or
which would bind
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Buyer or encumber the Property more than thirty (30) days after Closing. To the
best of Seller's knowledge:. (i) all such Contracts are in full force and effect
in accordance with their respective terms; (ii) all obligations of Seller under
the Contracts required to be performed to date have been performed in all
material respects; (iii) no party to any Contract has asserted any claim of
default or offset against Seller with respect thereto; and (iv) no event has
occurred or failed to occur, which would in any way affect the validity or
enforceability of any such Contract. The copies of the Contracts delivered to
Buyer prior to the date hereof are true, correct and complete copies thereof.
Between the date hereof and the Closing, Seller covenants to fulfill all of its
obligations under all Contracts, and covenants not to terminate or modify any
such Contracts or enter into any new contractual obligations relating to the
Property without the consent of Buyer (not to be unreasonably withheld) except
such obligations as are freely terminable without penalty upon not more than
thirty (30) days' written notice. Upon notice from Buyer given prior to the
expiration of the Inspection Period without termination of this Agreement by
Buyer, Seller will terminate such Contracts as are designated by Buyer, in
accordance with the terms of such Contracts, provided such termination is
without cost to Seller.
4.9 MAINTENANCE AND OPERATION OF PROPERTY. From and after the date
hereof and until the Closing, Seller covenants to keep and maintain and operate
the Property substantially in the manner in which it is currently being
maintained and operated and covenants not to cause or permit any waste of the
Property nor undertake any action with respect to the operation thereof outside
the ordinary course of business without Buyer's prior written consent. In
connection therewith, Seller covenants to make all necessary repairs and
replacements until the Closing so that the Property shall be of substantially
the same quality and condition at the time of Closing as on the date hereof.
Seller covenants not to remove from the Improvements or the Real Property any
article included in the Personal Property. Seller covenants to maintain such
casualty and liability insurance on the Property as is presently being
maintained.
4.10 PERMITS AND ZONING; COMPLIANCE WITH LAW. To the best knowledge of
Seller, the Property is in compliance with all applicable laws, regulations and
ordinances, and there are no permits and licenses required to be issued to
Seller by any governmental body, agency or department having jurisdiction over
the Property which materially affect or could materially affect the ownership or
the use thereof which have not been issued. The Property is properly zoned for
its present use without variance or grandfathering as a nonconforming use
(including without limitation parking and the sale of alcoholic beverages, if
applicable). The Property is not subject to any local, regional or state
development order. Seller has not received notice that there are any outstanding
assessments, impact fees or other charges related to the Property.
4.11 RENT ROLL; TENANT ESTOPPEL LETTERS. The Rent Roll is true and
correct in all respects. Seller agrees to use commercially reasonable efforts to
obtain current Tenant Estoppel Letters acceptable to Buyer from all Tenants
under the Leases, which Tenant
13
Estoppel Letters shall confirm the matters reflected by the Rent Roll as to the
particular tenant and shall otherwise be acceptable to Buyer in all material
respects.
4.12 CONDEMNATION. Neither the whole nor any portion of the Property,
including access thereto or any easement benefiting the Property, is currently
subject to temporary requisition of use by any governmental authority or has
been condemned, or taken in any proceeding similar to a condemnation proceeding,
nor is there now pending or threatened any condemnation, expropriation,
requisition or similar proceeding against the Property or any portion thereof.
Seller has received no notice nor has any other knowledge that any such
proceeding is contemplated.
4.13 GOVERNMENTAL MATTERS. Seller has not entered into any commitments
or agreements with any governmental authorities or agencies affecting the
Property that have not been disclosed in writing to Buyer and Seller has
received no notices from any such governmental authorities or agencies of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property. Seller
shall be responsible for the remittance of all sales tax for periods occurring
prior to the Allocation Date directly to the appropriate state department of
revenue and after Closing shall indemnify and hold Buyer harmless therefrom.
4.14 REPAIRS. Seller has received no notice of any requirement or
recommendation by any lender, insurance companies, or governmental body or
agencies requiring or recommending any repairs or work to be done on the
Property which have not already been completed or are not in the process of
being repaired.
4.15 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution and
delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) require Seller to file or register
with, notify, or obtain any permit, authorization, consent, or approval of, any
governmental or regulatory authority; (b) conflict with or breach any provision
of the organizational documents of Seller; (c) violate or breach any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Seller is a party, or by which
Seller, the Property or any of Seller's material assets may be bound; or (d)
violate any order, writ, injunction, decree, judgment, statute, law or ruling of
any court or governmental authority applicable to Seller, the Property or any of
Seller's material assets. Notwithstanding the foregoing, the sale contemplated
hereby is expressly subject to the consent described in Section 4.2 above.
4.16 ENVIRONMENTAL MATTERS. The Property presently complies with all
applicable Environmental Laws. The Property does not now contain and to the best
of Seller's knowledge has not contained any underground storage tanks, Hazardous
14
Materials, landfills or hazardous waste management facilities, as defined under
any Environmental Law. To the best of Seller's knowledge the Property is not
listed on any state or federal environmental remediation priority list. Seller
has used no Hazardous Material at the Property nor has Seller permitted any
other person to do so. Seller has received no notice from any governmental
agency having jurisdiction stating that the Property is affected by the presence
and/or harmful effects of any asbestos, toxic, or hazardous substances as
defined by applicable federal, state or local laws affecting the Property.
Seller has no actual knowledge that any portion of the Property has been used
for an on-site dry cleaning facility.
4.17 FOREIGN INVESTMENT AND REAL PROPERTY TAX ACT. Seller is not a
"foreign person" within the meaning of Section 1445 of the Internal Revenue
Code, or under any comparable state statutes which are applicable to this
transaction. At Closing Seller will execute and deliver to Buyer an affidavit
regarding such matters. If Seller fails to execute and deliver such affidavit,
Buyer may deduct and withhold from the Purchase Price such amounts as Buyer may
be required to withhold in order to satisfy any of Buyer's tax withholding
obligations under such statutes or regulations promulgated pursuant thereto.
4.18 PROPERTY TAXES. Neither Seller nor any of Seller's predecessors
within the past five (5) years has claimed, with respect to any of the Property,
the benefit of any law permitting a special use valuation for the purposes of
obtaining a lower ad valorem tax rate.
4.19 SPECIAL ASSESSMENTS. Seller has received no notice of any special
assessment pending or threatened in respect of the Property, whether or not a
lien thereon. There are not any hook-up fees, impact fees and similar charges or
assessments that will not be paid in full as of the Closing Date for the
improvements existing on the Property.
4.20 NO UNTRUE STATEMENT. Neither this Agreement nor any exhibit nor
any written statement or Transaction Document furnished or to be furnished by
Seller to Buyer in connection with the transactions contemplated by this
Agreement contains or will contain any knowingly untrue statement of material
fact or omits or will omit any material fact necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading. Seller agrees to furnish to Buyer copies of any notice, claim or
demand received by Seller during the pendency of this Agreement which would
materially change any representation given by Seller herein.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS OF BUYER
Buyer hereby warrants and represents as of the date of this Agreement and as of
the Closing and where indicated covenants and agrees as follows:
15
5.1 ORGANIZATION; AUTHORITY. Buyer is a corporation which is duly
organized, validly existing and in good standing under the laws of the state of
its organization. Buyer is authorized to transact business in the state in which
the Property is located. Buyer has full power and authority to enter into and
perform this Agreement in accordance with its terms, and the persons executing
this Agreement on behalf of Buyer have been duly authorized to do so.
5.2 NO UNTRUE STATEMENT. Neither this Agreement nor any exhibit nor
any written statement furnished or to be furnished by Buyer to Seller in
connection with the transactions contemplated by this Agreement contains or will
contain any untrue statement of material fact or omits or will omit any material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
5.3 FINANCIAL CONDITION. Buyer is financially capable of entering into
and performing its obligations under this Agreement.
6. POSSESSION, RISK OF LOSS
6.1 POSSESSION. Possession of the Property will be transferred to
Buyer at the Closing.
6.2 RISK OF LOSS. All risk of loss to the Property shall remain upon
Seller until the Closing. If, before Closing, any material portion of the
Property is damaged by fire or other casualty, or if any portion of the Property
is taken or threatened by eminent domain, or if there is a material obstruction
of access by virtue of a taking by eminent domain, Seller shall, within ten (10)
days of such damage or taking, notify Buyer thereof and Buyer shall have the
option to:
(a) terminate this Agreement upon notice to Seller given within
ten (10) business days after such notice from Seller, in which case Buyer shall
receive a return of the Xxxxxxx Money Deposit; or
(b) proceed with the purchase of the Property, in which event
Seller shall assign to Buyer all Seller's right, title and interest in all
amounts due or collected by Seller under the insurance policies or as
condemnation awards, less, in either case, the reasonable cost of collection
thereof. In such event, the Purchase Price shall be reduced by the amount of any
insurance deductible to the extent it reduced the insurance proceeds payable.
For the purposes hereof, "material portion of the Property" in the context of
damage by fire or other casualty shall mean any damage reasonably estimated by
Seller's insurance company to cost more than One Million and 00/100 Dollars
($1,000,000.00) to repair (exclusive of any damage to the stores occupied by
Home Depot and Wal-
16
Mart) or any damage which would allow a tenant under any of the Leases to
terminate its lease.
7. TITLE MATTERS
Within ten (10) days after the full execution hereof, Buyer shall order the
Title Insurance Commitment and Seller shall deliver to Buyer copies of any title
information, including prior surveys, in its possession. Upon receipt, Seller
shall order the Survey from Xxxxxxx Engineering Company of St. Louis County,
Missouri. Seller also agrees to furnish to Buyer promptly after execution hereof
copies of any title information, including prior surveys, in its possession.
Buyer will have until the later of the expiration of the Inspection Period or
five (5) business days after its receipt of both the Title Insurance Commitment
and Survey within which to notify Seller in writing of any conditions, defects,
encroachments or other objections to title or survey which are not acceptable to
Buyer. Any matter disclosed by the Title Insurance Commitment (other than liens
removable by the payment of money) or by the Survey which is not timely
specified in Buyer's written notice to Seller shall be deemed a Permitted
Exception. Seller shall use reasonable and diligent efforts to cure all
objections to title or survey by the end of the Inspection Period. If such Title
Defects and/or objections are not cured prior to Closing, Buyer may (i) refuse
to purchase the Property, terminate this Agreement and receive a return of the
Xxxxxxx Money Deposit; or (ii) waive such objection(s) and close the purchase of
the Property subject to them.
8. CONDITIONS PRECEDENT
8.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The obligations of
Buyer under this Agreement are subject to satisfaction or written waiver by
Buyer of each of the following conditions or requirements on or before the
Closing Date:
(a) Seller's warranties and representations under this
Agreement shall be true and correct in all material respects, and Seller shall
not be in default hereunder.
(b) The obligations of Seller contained in this Agreement shall
have been performed in all material respects and Seller shall not be in default
under any covenant, restriction, right-of-way or easement affecting the
Property.
(c) The Title Insurance Commitment shall have been issued and
"marked down" through Closing, subject only to Permitted Exceptions.
(d) The physical and environmental condition of the Property
shall not have materially changed from the Effective Date, ordinary wear and
tear excepted.
(e) There shall have been no material adverse change after the
Effective Date in the financial condition of any of the Major Tenants, nor shall
any Major Tenant have vacated its store.
17
(f) Buyer shall have received, in form reasonably satisfactory
to Buyer, Tenant Estoppel Letters obtained by Seller, which must include those
from all Major Tenants and eighty percent (80%) by number of the other tenants
who have signed leases for any portion of the Property, without any material
exceptions, covenants or changes to the form approved by Buyer and distributed
to tenants by Seller, the substance of which Tenant Estoppel Letters must be
acceptable to Buyer in all material respects;
(g) Estoppel Letters in form and substance reasonably
acceptable to Buyer with respect to all reciprocal easement agreements and/or
operating and easement agreements effecting the Property (the "REA Estoppels");
(h) The lease to HDC Retail, L.L.C. ("HDC") shall be executed
and rent shall commence to be payable thereunder on October 15, 2004;
(i) St. Louis Playscapes shall be occupying its premises
pursuant to its lease and paying full rent, CAM, taxes and insurance;
(j) There shall be no vacancies in excess of one thousand four
hundred (1,400) square feet in the Improvements;
(k) All vacant space within the Improvements shall be in
rentable vanilla box condition ready for a new tenant to occupy immediately in
accordance with all applicable laws, codes, ordinances and regulations,
including all requirements for the issuance of a certificate of occupancy for
such space;
(l) There shall be no material default under any of the Leases;
and
(m) All documents and instruments required to be delivered by
Seller pursuant to Section 9 of this Agreement.
In the event that all of the foregoing provisions of this Section 8.1 are
not satisfied in all material respects unless otherwise waived by Buyer, and
Seller does not request an adjournment of the Closing to comply such adjournment
not to exceed ten (10) days, and Buyer elects in writing to terminate this
Agreement, then the Xxxxxxx Money Deposit shall be promptly delivered to Buyer
by Escrow Agent and, upon receipt thereof by Buyer, neither party shall have any
further claim against the other by reason of this Agreement, except as otherwise
specifically provided herein.
8.2 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligations of
Seller under this Agreement are subject to satisfaction or written waiver by
Seller of each of the following conditions or requirements on or before the
Closing Date:
18
(a) Buyer's warranties and representations under this Agreement
shall be true and correct, and Buyer shall not be in default hereunder.
(b) The obligations of Buyer contained in this Agreement shall
have been performed in all material respects.
(c) Buyer shall have delivered to Seller all amounts, documents
and instruments required to be delivered by Buyer pursuant to Section 9 of this
Agreement.
In the event that all conditions precedent to Buyer's obligation to
purchase shall have been satisfied but the foregoing provisions of this Section
8.2 have not, and Seller elects in writing to terminate this Agreement, then the
Xxxxxxx Money Deposit shall be promptly delivered to Seller by Escrow Agent and,
upon the making of such delivery, neither party shall have any further claim
against the other by reasons of this Agreement, except as otherwise specifically
provided herein.
8.3 REASONABLE EFFORTS. Each of the parties hereto agrees to use
reasonable efforts to take or cause to be taken all actions necessary, proper or
advisable to consummate the transactions contemplated by this Agreement.
9. CLOSING
9.1 The consummation of the sale and purchase of the Property pursuant
to this Agreement shall occur on the Closing Date. The Closing shall take place
in escrow through the Escrow Agent. All deliveries provided for below shall be
delivered in trust to the Escrow Agent on or before the Closing Date if not
otherwise delivered directly to the party entitled to receipt of such items.
Upon Closing, the Escrow Agent shall record and disburse only in accordance with
the parties' escrow instructions. The items to be delivered are as follows:
(a) Seller shall deliver to Buyer or Escrow Agent (as
applicable) the following:
(1) A special warranty deed, executed and acknowledged by
Seller as of the Closing Date, in the form of Exhibit 9.1(a)(1) attached hereto,
conveying title in fee simple to the Property, free and clear of any and all
liens, encumbrances, conditions, easements, assessments and restrictions except
the Permitted Exceptions;
(2) An assignment (the "Assignment of Leases"), executed by
Seller as of the Closing Date, in the form of Exhibit 9.1(a)(2) attached hereto;
(3) A xxxx of sale, assignment and assumption of contracts
(the "Xxxx of Sale"), executed by Seller as of the Closing Date, in the form of
Exhibit 9.1(a)(3) attached hereto; provided, Seller shall cause any management
and leasing agreements to be terminated at or prior to Closing and same shall
not be assumed by Buyer, and
19
Seller shall cause any other contracts to be terminated at or prior to Closing
to the extent Buyer elects not to assume same.
(4) A certificate and affidavit of non-foreign status
("FIRPTA Affidavit"), executed by Seller as of the Closing Date;
(5) Appropriate resolutions and other evidence reasonably
required by Buyer and the Title Company to evidence Seller's authority to
execute and deliver the deed and other documents contemplated hereby;
(6) A notice letter to tenants (the "Tenant Notice Letter")
executed by Seller as of the Closing Date, in the form attached hereto as
Exhibit 9.1(a)(6);
(7) The original required number of Tenant Estoppel Letters
and REA Estoppel Letters;
(8) An executed closing statement, in a form reasonably
acceptable to Buyer;
(9) Such affidavits as the Title Company shall reasonably
require in order to issue the Title Policy;
(10) 1099-S;
(11) An updated Rent Roll certified by Seller as true,
complete and correct showing no changes from the Rent Roll attached to this
Agreement other than those approved in writing by Buyer;
(12) An executed Audit Letter in the form attached hereto
as Exhibit 9.1(a)(12);
(13) An undertaking of Seller in form approved by Buyer
pursuant to which: (a) Seller shall pay to Buyer an amount equal to the rent and
CAM which would have been payable had the lease with HDC provided for such
payments beginning on the Closing Date through October 15, 2004 as a credit
against the Purchase Price; and (b) Seller undertakes to supervise the build out
under the lease to HDC and to pay the amounts due from the landlord in
connection with such build out as set forth in such lease;
(14) All other documents reasonably necessary to effectuate
the transaction.
(b) Simultaneous with the Closing, and if not previously
provided to Buyer, Seller shall make available to Buyer at the Property, or such
other place mutually agreeable to the parties, the following:
20
(1) To the extent such exists in Seller's possession or
control, copies of all pertinent records and files relating to the operation and
maintenance of the Property; and
(2) To the extent such exists in Seller's possession or
control, any architectural drawings and renderings, building plans and
specifications, and any and all municipal, county, state or local permits or
licenses held by Seller in connection with the Property.
(c) At the Closing, Buyer shall deliver to Seller or the Escrow
Agent, as applicable, the following:
(1) Upon confirmation that the items indicated in (a) above
have been deposited in escrow with the Escrow Agent or delivered to Buyer, as
applicable, and the conditions to Buyer's obligations under this Contract having
been satisfied, the Purchase Price by wire transfer via the Federal Reserve
System (plus or minus the net adjustments computed hereunder), payable to the
order of Seller and/or such other order as Seller shall have directed by written
notice to Buyer;
(2) The Assignment of Leases, executed by Buyer as of the
Closing Date;
(3) The Assignment of Service Contracts, executed by Buyer
as of the Closing Date;
(4) The Xxxx of Sale, executed by Buyer as of the Closing
Date;
(5) Closing statement in a form reasonably acceptable to
Seller.
10. PRE-CLOSING BREACH: REMEDIES
10.1 BREACH BY SELLER. In the event of a breach of Seller's covenants
or warranties herein and the failure of Seller to cure such breach within the
time provided for Closing or within such reasonable time as may be obtained by
adjourning the Closing and having Seller diligently pursue the remedy of such
breach, Buyer may, at Buyer's election (i) terminate this Agreement and receive
a return of the Xxxxxxx Money Deposit, and the parties shall have no further
rights or obligations under this Agreement (except as survive termination); (ii)
enforce this Agreement by suit for specific performance; or (iii) waive such
breach and close the purchase contemplated hereby, notwithstanding such breach.
10.2 BREACH BY BUYER. In the event of a breach of Buyer's covenants or
warranties herein and the failure of Buyer to cure such breach within the time
provided for Closing, Seller's sole legal and equitable remedy shall be to
terminate this
21
Agreement and retain Buyer's Xxxxxxx Money Deposit as AGREED LIQUIDATED DAMAGES
for such breach, and upon payment in full to Seller of such Xxxxxxx Money
Deposit, the parties shall have no further rights, claims, liabilities or
obligations under this Agreement (except as survive termination).
11. POST CLOSING INDEMNITIES AND COVENANTS
11.1 SELLER'S INDEMNITY. Should this transaction close, Seller, subject
to the limitations set forth herein, shall indemnify, defend and hold harmless
Buyer from all claims, demands, liabilities, damages, penalties, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, which may be imposed upon, asserted against or incurred or paid
by Buyer by reason of, or on account of, any material adverse breach by Seller
of Seller's warranties, representations and covenants. Buyer's rights and
remedies herein against Seller shall be in addition to, and not in lieu of all
other rights and remedies of Buyer at law or in equity.
11.2 BUYER'S INDEMNITY. Should this transaction close, Buyer shall
indemnify, defend and hold harmless Seller from all claims, demands,
liabilities, damages, penalties, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, which may be imposed
upon, asserted against or incurred or paid by Seller by reason of, or on account
of, any material adverse breach by Buyer of Buyer's warranties, representations
and covenants. Seller's rights and remedies herein against Buyer shall be in
addition to, and not in lieu of all other rights and remedies of Seller at law
or in equity.
12. MISCELLANEOUS
12.1 COMMISSIONS. Seller and Buyer represent to each other that neither
Seller (in the case of Sellers representation) nor Buyer (in the case of Buyer's
representation) has dealt with nor does it have any knowledge of any broker or
other person who has or may have any claim against Seller, Buyer or the Property
for a brokerage commission, finder's fee or like payment arising out of or in
connection with this transaction, other than Broker and any participating
broker(s) identified on Exhibit 1.3 attached to this Agreement and The Xxxxxxx
Group of St. Louis, Missouri ("Buyer's Broker"). Buyer agrees to indemnify and
hold Seller harmless from any other such claim arising by, through or under
Buyer, and Seller agrees to indemnify and hold Buyer harmless from any other
such claim arising by, through or under Seller.
12.2 NOTICES. All notices and demands of any kind which either party
may be required or may desire to serve upon the other party in connection with
this Agreement shall be in writing, signed by the party or its counsel
identified below, and shall be served (as an alternative to personal service) by
registered or certified mail, overnight courier service or facsimile
transmission (followed promptly by personal service or service of a hard copy by
any other means permitted hereunder), at the addresses set forth below:
22
As to Seller: Manchester-Xxxxx Limited Partnership
Attention: Xxxxxxx X. Xxxxxxxxx
x/x Xxxxxxxx Xxxxxxxxxx, X.X.X.
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to Xxxxxxxxxxx X. Xxxxxxx
Seller's Counsel: The Xxxxxx Partnership LLP
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 314-436-8400
With a copy to: NEBF Investments
Attention: Xxxxxxx X. Xxxxx,
Managing Director of Real estate
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxx-Xxxxx, Xxxxxx & Xxxxxxx
Attention: Xxxxx X. Xxxxxx
0000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
As to Buyer: Inland Real Estate Acquisitions, Inc.
Attention: G. Xxxxxx Xxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to Inland Real Estate Acquisitions, Inc.
Buyers Counsel: Attention: Xxxxxx Xxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
23
With a copy to Chicago Title Insurance Company
Escrow Agent: Attention: Xxxxx Xxxxxx
(if required) 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 312-223-2108
Any such notice or demand so served, shall constitute proper notice hereunder
upon delivery to the United States Postal Service or to such overnight courier,
or by confirmation of the facsimile transmission.
12.3 HEADINGS. The titles and headings of the various sections hereof
are intended solely for means of reference and are not intended for any purpose
whatsoever to modify, explain or place any construction on any of the provisions
of this Agreement.
12.4 VALIDITY. If any of the provisions of this Agreement or the
application thereof to any persons or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement shall not be affected
thereby, and every other provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
12.5 ATTORNEYS' FEES. In the event of any dispute, litigation or other
proceeding between the parties hereto to enforce any of the provisions of this
Agreement or any right of either party hereunder, the unsuccessful party to such
dispute, litigation or other proceeding shall pay to the successful party all
costs and expenses, including reasonable attorneys' fees, incurred at trial, on
appeal, and in any arbitration, administrative or other proceedings, all of
which may be included in and as a part of the judgment rendered in such
litigation. Any indemnity provisions herein shall include indemnification for
such costs and fees. This section shall survive the Closing or a prior
termination hereof.
12.6 TIME. Time is of the essence of this Agreement, provided that if
any date upon which some action, notice or response is required of any party
hereunder occurs on a weekend or national holiday, such action, notice or
response shall not be required until the next succeeding business day.
12.7 GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Missouri.
12.8 GENDER; PLURAL; SINGULAR; TERMS. A reference in this Agreement to
any gender, masculine, feminine or neuter, shall be deemed a reference to the
other, and the singular shall be deemed to include the plural and vice versa,
unless the context otherwise requires. The terms "herein," "hereof,"
"hereunder," and other words of a similar nature mean and refer to this
Agreement as a whole and not merely to the
24
specified section or clause in which the respective word appears unless
expressly so stated.
12.9 EXHIBITS. All exhibits attached hereto are incorporated herein by
reference to the same extent as though such exhibits were included in the body
of this Agreement verbatim.
12.10 COUNTERPARTS, FURTHER INSTRUMENTS, ETC. This Agreement may be
executed in counterparts, and when so executed shall be deemed executed as one
agreement. Seller and Buyer shall execute any and all documents and perform any
and all acts reasonably necessary to fully implement this Agreement.
12.11 NO RECORDING. Neither this Agreement nor any memorandum notice or
short form hereof shall be recorded.
12.12 SURVIVAL. The indemnities, representations and warranties of each
of Seller and Buyer, and their respective obligations intended to be performed
after the Closing, if any, shall survive the Closing.
12.13 SUCCESSORS AND ASSIGNS. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the heirs, successors and
assigns of the parties. No third parties, including any brokers or creditors,
shall be beneficiaries hereof or entitled to any rights or benefits hereunder.
12.14 ENTIRE AGREEMENT. This Agreement, together with the exhibits
attached hereto, supercedes all prior agreements between the parties as to the
Property, if any, and constitutes the entire agreement between the parties with
respect to the subject matter hereof. This Agreement may not be modified,
amended or otherwise changed in any manner except by a writing executed by Buyer
and Seller or their respective counsel identified herein.
12.15 ASSIGNMENT. Buyer may not assign its interest in this Agreement
without the prior written consent of Seller, which shall not be unreasonably
withheld.
[SIGNATURE PAGE FOLLOWS]
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
BUYER:
INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois
corporation
By: /s/ G. Xxxxxx Xxxxxxx
---------------------------------
G. Xxxxxx Xxxxxxx, President
Date: 7/12/04
-------------------------------
SELLER:
MANCHESTER-XXXXX LIMITED
PARTNERSHIP, a Missouri limited
partnership
By: MIDLAND TC, INC., a Missouri
corporation, General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
Date: 7/13/04
-------------------------------
26
JOINDER OF ESCROW AGENT
1. DUTIES. Escrow Agent joins herein for the purpose of agreeing to
comply with the terms hereof insofar as they apply to Escrow Agent. Escrow Agent
shall receive and hold the Xxxxxxx Money Deposit in trust, to be disposed of in
accordance with the provisions of this joinder and the foregoing Agreement. The
Xxxxxxx Money Deposit shall be invested by Escrow Agent in an interest bearing
account at a national bank having assets in excess of ten billion dollars.
2. INDEMNITY. Escrow Agent shall not be liable to any party except
for claims resulting from the negligence or willful misconduct of Escrow Agent.
If the escrow is the subject of any controversy or litigation, the parties to
the Agreement shall jointly and severally indemnify and hold Escrow Agent
harmless from and against any and all loss, cost, damage, liability or expense,
including costs of reasonable attorneys fees to which Escrow Agent may be put or
which Escrow Agent may incur by reason of or in connection with such controversy
or litigation, except to the extent it is determined that such controversy or
litigation resulted from Escrow Agent's negligence or willful misconduct. If the
indemnity amounts payable hereunder result from the fault of Buyer or Seller (or
their respective agents), the party at fault shall pay and hold the other party
harmless against such amounts.
3. CONFLICTING DEMANDS. If conflicting demands are made upon Escrow
Agent or if Escrow Agent is uncertain with respect to the escrow, the parties to
the Agreement expressly agree that Escrow Agent shall have the absolute right to
do either or both of the following: (i) withhold and stop all proceedings in
performance of this escrow and await settlement of the controversy by final
appropriate legal proceedings or otherwise as it may require; or (ii) file suit
for declaratory relief and/or interpleader and obtain an order from the court
requiring the parties to interplead and litigate in such court their several
claims and rights between themselves. Upon the filing of any such declaratory
relief or interpleader suit and tender of the Xxxxxxx Money Deposit to the
court, Escrow Agent shall thereupon be fully released and discharged from any
and all obligations to further perform the duties or obligations imposed upon
it. Buyer and Seller agree to respond promptly in writing to any request by
Escrow Agent for clarification, consent or instructions. Any actions proposed to
be taken by Escrow Agent for which approval of Buyer and/or Seller is requested
shall be considered approved by the particular party if Escrow Agent does not
receive written notice of disapproval within ten (10) business days after a
written request for approval is received by the party whose approval is being
requested. Escrow Agent shall not be required to take any action for which
approval of Buyer and/or Seller has been sought unless such approval has been
received. No notice by Buyer or Seller to Escrow Agent of disapproval of a
proposed action shall affect the right of Escrow Agent to take any action as to
which such approval is not required.
27
4. TAX IDENTIFICATION. Seller and Buyer shall provide to Escrow Agent
appropriate Federal tax identification numbers.
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------
Its Authorized Agent
Date:
----------------------------
"ESCROW AGENT"
28
EXHIBIT 1.3
BROKER AND PARTICIPATING BROKERS
BROKER:
Name: May Center Advisors
Address: 0000 Xxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. May
Phone Number: 000-000-0000
Fax Number: 000-000-0000
PARTICIPATING BROKER:
Name: Quadrant Properties, L.L.C.
Address: 00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Phone Number: 000-000-0000
Fax Number: 000-000-0000
29
EXHIBIT 1.7
LIST OF CONTRACTS
METRO SWEEPING DATED-FEBRUARY 3, 2004
SYMMETRY LANDSCAPING DATED JANUARY 22, 2004
MIDWEST WASTE DATED NOVEMBER 20, 2003
ENERGY CONSULTING SERVICES PERFORMED BY XXXXXXXX X XXX DATED 1/10/00-CONTRACT IS
CANCELLED UPON THE SALE DATE OF THE PROPERTY.
CENTRAL DISTRICT ALARM-CONTRACT WAS ORIGINALLY SIGNED IN 1995 WHEN THE CENTER
WAS BUILT. CDA AUTOMATICALLY ROLLS OVER EACH YEAR. WE HAVE NO NEW CONTRACT.
PRIORITY PROPERTIES-MANAGEMENT AGREEMENT DATED 8/1/99-AUTOMATICALLY RENEWS EACH
YEAR-30 DAY NOTICE OF CANCELLATION.
30
EXHIBIT 1.18
MATERIALS LIST
LEASE DOCUMENTS
1. Lease between Manchester Xxxxxxx Limited Partnership and Habitat
Wallpaper & Blinds, Inc. dated April 18, 1994
a. Rider dated April 18, 1994
b. First Amendment to Lease dated November 10, 1994
c. Letter regarding commencement dated June 9, 1995
d. Letter regarding Assignment of Lease dated November 3, 1997
e. Letter regarding sale of business dated December 18, 1998
f. Wavier and Consent Agreement dated February 1999
g. Letter excising option dated August 30, 1999
h. Letter acknowledging option dated September 17, 1999
i. Letter regarding mailing address dated February 26, 2003
2. Lease between Manchester Xxxxxxx Limited Partnership and Art & Frame,
Inc. dated October 18, 1994
a. Guaranty
b. Letter regarding landlord's work dated October 31, 1994
c. Commencement Letter dated November 18, 1994
d. Letter dated December 6, 1994
e. Lease Modification Agreement No. 1 dated October 27, 2000
f. Commencement Letter dated October 28, 2003
g. Lease Modification Agreement No. 2 dated September 15, 2003
3. Ground Lease between Manchester Xxxxxxx Limited Partnership and Boston
Chicken, Inc. dated January 20, 1995
a. First Addendum to Ground Lease dated January 20, 1995
b. Amendment of Lease dated May 26, 2000
4. Lease between Manchester Xxxxxxx Limited Partnership and Consumer
Programs Incorporated dated January 6, 1995
a. Commencement Letter dated March 17, 1995
b. Letter excursing option dated December 10, 1999
c. Commencement Letter dated December 22, 1999
5. Letter of Intent for Home Decorators Collection dated May 28, 2004
6. Lease between Manchester Xxxxxxx Limited Partnership and Builders Square,
Inc. dated August 17, 1993
a. Lease Guaranty Agreement dated September 10, 1993
b. First Amendment of Lease dated November 30, 1993
c. Assignment of Lease dated February 14, 1997
d. Lender's Consent and Release dated April 29, 1998
e. Exhibit H - Form of Landlord-HIC Release dated June 17, 1998
f. Exhibit I - Form of Landlord-Kmart Release dated June 17, 1998
g. Assignment of Lease dated June 18, 1998
31
h. Holdover License Agreement dated June 18, 1998
i. HIC Release - Termination of Subleases and Release dated June
18, 1998
j. Exhibit M - Assumption Agreement dated June 18, 1998
k. Second Amendment of Lease dated June 1, 2000
7. Lease between Manchester-Xxxxx Limited Partnership and Fastrack Fitness,
LLC dated February 10, 2004
a. Guaranty
b. Commencement Letter dated March 9, 2004
8. Lease between Manchester-Xxxxx Limited Partnership between Memories
Unlimited, Inc. dated May 1, 1998
a. Letter accepting the addition of one early termination period
dated March 2, 1999
b. Letter exercising renewal option dated March 16, 2001
c. Lease Modification Agreement No. 1 dated February 20, 2004
9. Lease between Manchester-Xxxxx Limited Partnership and Xxxx Xxx dated
January 24, 2002
a. Guaranty
b. Commencement Letter dated April 24, 2002
c. Assignment of Lease between Xxxx Xxx and Xxxxxxxx and Kathayani
Xxxxxxxx dated May 17, 2004
10. Lease between Manchester Xxxxxxx Limited Partnership and OfficeMax, Inc.
dated June 23, 1993
a. Lease Modification Agreement dated November 24, 1993
b. Commencement Letter dated November 28, 1994
c. Letter regarding OfficeMax contact information dated September
11, 2003
d. Letter exercising their option dated May 7, 2004
11. Lease between Manchester Xxxxxxx Limited Partnership and Payless
Shoesource, Inc. dated June 26, 1995
a. Letter serving to confirm basic agreement between landlord and
tenant dated March 30, 1995
b. Addendum dated October 31, 1995
12. Lease between Manchester Xxxxxxx Limited Partnership and PETsMART, Inc.
dated June 4, 1993
a. Lease Modification Agreement dated February 24, 1994
b. Letter regarding square footage dated December 21, 1994
c. Commencement Date Certificate dated January 4, 1995
d. Letter regarding tenant's insurance dated March 18, 2002
e. Letter dated July 23, 2003
f. Letter dated August 26, 2003
g. Memorandum of Lease dated August 29, 2003
13. Lease between Manchester Xxxxxxx Limited Partnership and Xxxx Xxxxxxxx
dated October 28, 1994
a. Commencement Letter dated January 18, 1995
b. Lease Modification Agreement No. 1 dated September 10, 1999
32
14. Lease between Manchester-Xxxxx Limited Partnership and RBL Enterprises,
Inc. dated May 1, 2001
a. Letter dated July 22, 2003
b. Lease Modification Agreement No. 1 dated January 28, 2004
15. Lease between Manchester Xxxxxxx Limited Partnership and Ronan Limited
dated December 23, 1994
a. Commencement Letter dated January 16, 1995
b. Lease Modification Agreement No. 1 dated September 18, 2003
16. Lease between Manchester-Xxxxx Limited Partnership and Spectacular Clips,
Inc. dated April 8, 1999
a. Commencement Letter dated July 2, 1999
b. Fax renewing option dated January 28, 2004
17. Lease between Manchester-Xxxxx Limited Partnership and St. Louis
Playscapes, Inc. dated October 6, 2003
a. Fax regarding notice change dated November 14, 2003
18. Lease between Manchester-Xxxxx Limited Partnership and St. Louis
Playscapes, Inc. dated April 30, 2004
19. Lease between Manchester Xxxxxxx Limited Partnership and Town & Country
L.T., Inc. dated October 19, 1993
a. Lease Modification Agreement dated November 23, 1993
b. Commencement Letter dated January 13, 1995
20. Lease between Manchester-Xxxxx Limited Partnership and Xxx Xxxxxx and Xxx
Xx dated March 9, 1995
a. Guaranty
b. Commencement Letter dated May 23, 1995
c. Letter regarding name change dated October 18, 1995
d. Sublease between Xxx Xxxxxx and Xxx Xx and Xxx Xx and Xxx Xxx
dated December 1, 1996
e. Sublease between Xxx Xxxxxx and Xxx Xxx Xxxxxx dated May 1,
1999
f. Lease Modification Agreement No. 1 dated April 9, 2001
21. Lease between Manchester Xxxxxxx Limited Partnership and The Sports
Authority dated August 23, 1993
a. First Amendment dated November 30, 1993
b. Memorandum of Lease dated April 7, 1994
c. Addendum dated February 25, 1995
d. Letter regarding tenant name change dated November 18, 2003
22. Lease between Manchester-Xxxxx Limited Partnership and United States
Postal Service dated March 5, 1997
a. Notice to Proceed dated March 5, 1997
b. Exercise of Renewal Option dated November 11, 2000
23. Lease between Manchester Xxxxxxx Limited Partnership and Wal-Mart Stores,
Inc. dated July 6, 1993
a. Lease Modification Agreement dated November 30, 1993
b. Lease Modification Agreement dated June 6, 1994
c. Lease Modification Agreement dated October 10, 1994
33
d. Fourth Amendment to Lease Agreement dated May 26, 1995
PROPERTY CONDITION/ENVIRONMENTAL REPORTS
24. Re: Phase 1 Environmental Assessment dated February 4, 1993
a. Environmental letter dated May 5, 1993
b. Environmental letter dated June 16, 1993
PROPERTY INFORMATION DOCUMENTS
25. Policy of Title Insurance - Policy No. 5349934
a. First American Title Insurance Company - Exhibit A
26. Survey
FINANCIAL INFORMATION DOCUMENTS
27. Real Estate Taxes - 2003, 2002, & 2001
28. Recoveries 2003
a. Detail behind Wal-Mart (1st & 2nd half)
b. Detail behind PETsMART
29. CAM Xxxxxxxx - 2003
30. Aging Report dated March 24, 2004
31. Rent Roll 2004
32. Retail Sales Detail Reports
a. 2000-2003
b. 2003 - 2004
c. Wal-Mart Sales Report
33. Appraisal Report dated December 31, 2003
34. Statement of Operations - 2004 YTD, 2003, & 2002
35. Budget - 2004
36. Loan Documents
a. Loan Application dated July 12, 1995
a. Order to Pay for Loan Funds dated November 21, 1995
b. Promissory Note dated November 20, 1995
c. Guarantee dated November 20, 1995
d. Additional Guarantee dated November 20, 1995
e. NEBF Guarantee of Recourse Obligations dated November 20, 1995
f. Guarantee of Recourse Obligations dated November 20, 1995
g. Deed of Trust and Security Agreement dated November 20, 1995
h. Absolute Assignment of Leases and Rents dated November 20, 1995
i. Uniform Commercial Code - Financing Statement dated
j. Environmental Indemnity Agreement dated November 20, 1995
k. Certification of Borrower dated November 13, 1995
l. Letter of Opinion dated November 21, 1995
m. Letter of Opinion dated November 27, 1995
34
37. Mortgage Statement from Northwestern Mutual
MISCELLANEOUS
Letter of Authorization Dated June 10, 2003 Re: Real Estate Taxes - Deloitte &
Touche LLP
35
EXHIBIT 1.19
Schedule of Major Tenants
Wal-Mart
Home Depot
PETsMART
Office Max
Linens 'n Things
Sports Authority
HDC Retail, L.L.C.
36
EXHIBIT 1.24
LEGAL DESCRIPTION OF REAL PROPERTY
The land referred to in this POLICY is situated in the State of Missouri, County
of St. Louis and is described as follows:
PARCEL NO. 1
A tract of land being part of Lot 1 of the "Xxxxxx'x Estate", as recorded in
Plat Book 2, Page 26 of the St. Louis County Records and in U.S. Survey 128, and
Section 32, Township 45 North, Range 5 East, St. Louis County, Missouri, and
being more particularly described as:
Beginning at a point on the North line of Manchester Road - Missouri State
Highway 100, said point being Southwest corner of Lot A of "Xxxxx Subdivision",
a subdivision according to the plat thereof recorded in Plat Book 146, page 81
of the St. Louis County Records; thence Westwardly along said North right-of-way
line of Manchester Road - Missouri State Highway 100 the following courses and
distances: North 81 degrees 37 minutes 03 seconds West, 329.61 feet, along a
curve to the left whose radius point bears South 08 degrees 22 minutes 57
seconds West, 2,759.00 feet from the last mentioned point, a distance of 91.49
feet, North 06 degrees 28 minutes 57 seconds East, 5.00 feet, along a curve to
the left whose radius point bears South 06 degrees 28 minutes 57 seconds West,
2,506.00 feet from the last mentioned point, a distance of 482.58 feet, North 04
degrees 33 minutes 03 seconds West, 20.00 feet, and along a curve to the left
whose radius point bears South 04 degrees 33 minutes 03 seconds East, 2,483.00
feet from the last mentioned point, a distance of 544.62 feet to the Southeast
corner of "Regency Park", a subdivision according to the plat thereof recorded
in Plat Book 155, Pages 66 and 67 of the St. Louis County Records; thence
Northwardly along the East line of said "Regency Park" the following courses and
distances: North 23 degrees 22 minutes 36 seconds East, 117.19 feet, North 18
degrees 29 minutes 00 seconds West, 150.00 feet, North 29 degrees 20 minutes 00
seconds West, 190.00 feet, North 08 degrees 10 minutes 00 seconds West, 112.00
feet, North 23 degrees 10 minutes 00 seconds West, 97.00 feet, North 78 degrees
08 minutes 00 seconds West, 43.00 feet, North 11 degrees 40 minutes 00 seconds
West, 177.00 feet, North 03 degrees 10 minutes 00 seconds East, 152.00 feet,
North 41 degrees 28 minutes 00 seconds West, 72.00 feet, North 57 degrees 19
minutes 00 seconds East, 88.87 feet, North 20 degrees 50 minutes 00 seconds
West, 320.00 feet, North 02 degrees 25 minutes 00 seconds East, 172.00 feet,
North 19 degrees 34 minutes 00 seconds West, 148.85 feet, North 23 degrees 45
minutes 00 seconds East, 96.00 feet, North 86 degrees 40 minutes 00 seconds
West, 98.00 feet, North 00 degrees 13 minutes 00 seconds East, 194.90 feet, and
North 27 degrees 55 minutes 00 seconds West, 200.03 feet to the Northeast corner
of said "Regency Park", being also a point on the South line of said "Regency
Park", being also a point on the South line of property conveyed to St. Louis
County, Missouri, by deed recorded in Book
37
6447, page 956 of the St. Louis County Records; thence North 68 degrees 34
minutes 00 seconds East, 286.26 feet to the Northwest corner of property
conveyed to Xxxx Xxxxxxxxxxxxx by deed recorded in Book 6716, Page 1830 of the
St. Louis County Records; thence South 29 degrees 03 minutes 31 seconds East,
488.68 feet along the West line of said Xxxxxxxxxxxxx property to the Southwest
corner thereof; thence North 83 degrees 44 minutes 00 seconds East, 1,301.55
feet along the South line of said Xxxxxxxxxxxxx property to the Northwest corner
of property conveyed to Xxxx X. Xxxxxxxx by deed recorded in Book 7406, Page
2466 of the St. Louis County Records; thence South 00 degrees 54 minutes 32
seconds West, 302.71 feet along the West line of said Xxxxxxxx property to the
Southwest corner thereof; thence North 83 degrees 44 minutes 23 seconds East,
249.85 feet along the South line of said Xxxxxxxx property to the Northwest
corner of property conveyed to Xxxx X. and Xxxxxxx Xxxxxxxx, unrecorded; thence
South 03 degrees 33 minutes 55 seconds West, 750.90 feet to the Northwest corner
of Lot A of "Xxxxx Xxxxx", a subdivision according to the plat thereof recorded
in Plat Book 150 Page 69 of the St. Louis County Records; thence South 03
degrees 52 minutes 57 seconds West, 915.29 feet along the West line of said Lot
A of "Xxxxx Xxxxx", West line of "Xxxxx Xxxxx Amended", a subdivision according
to the plat thereof recorded in Plat Book 159 Page 61 of the St. Louis County
Records and the West line of aforesaid Lot A of "Xxxxx Subdivision" to the point
of beginning and containing 71.846 Acres, more or less.
38
EXHIBIT 1.25
RENT ROLL
39
EXHIBIT 1.29
BUYER'S SURVEY REQUIREMENTS
SURVEYOR'S CERTIFICATION
I/We hereby certify to ________________, ____________________Chicago
Title Insurance Company, and any of each of their successors or assigns that (a)
this survey was prepared by me or under my supervision, (b) the legal
description of the property as set forth herein, and the location of all
improvements, encroachments, fences, easements, roadways, rights of way and
setback lines which are either visible or of record in -______________ County,
____________, according to Commitment for Title Insurance Number ______________,
last revised _____________ , 2004, are accurately reflected hereon, (c) this
survey accurately depicts the state of facts as they appear on the ground, (d)
except as shown hereon, there are no improvements, encroachments, fences or
roadways on any portion of the property reflected hereon, (e) the property shown
hereon has access to a publicly dedicated roadway, (f) the property described
hereon {does} {does not} lie in a 100 year flood plain identified by the
Secretary of Housing and Urban Development or any other governmental authority
under the National Flood Insurance Act of 1968 (24 CFR Section.1909.1), as
amended (such determination having been made from a personal review of flood map
number ____________, which is the latest available flood map for the property),
(g) the title lines and lines of actual possession are the same, (h) all utility
services required for the operation of the property either enter the property
through adjoining public streets, or this survey shows the point of entry and
location of any utilities which pass through or are located on adjoining private
land, (i) this survey shows the location and direction of all storm drainage
systems for the collection and disposal of all surface drainage, (j) the
property surveyed contains _______ acres and _______ parking spaces, (k) any
discharge into streams, rivers, or other conveyance systems is shown on the
survey. This survey has been made in accordance with "MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS" jointly established and adopted
by American Land Title Association ("ALTA") and American Congress on Surveying
and Mapping ("ACSM") in 1999 and meets the accuracy requirements of an Urban
Survey, as defined therein and includes items 1, 3, 4, 6, 7(a, b, and c), 8-11
and 13-16 of Table A thereof.
[Surveyor to complete certificate with the appropriate ONE of the following
three phrases]
- the Positional Uncertainties resulting from the survey
measurements made on the survey do not exceed the allowable Positional
Tolerance.
- the survey measurements were made in accordance with the "Minimum
Angle, Distance, and Closure Requirements for Survey
40
Measurements Which Control Land Boundaries for ALTA/ACSM Land Title
Surveys".
- proper field procedures, instrumentation, and adequate survey
personnel were employed in order to achieve results comparable to those
outlined in the "Minimum Angle, Distance, and Closure Requirements for
Survey Measurements Which Control Land Boundaries for ALTA/ACSM Land
Title Surveys".
Dated: ______________, 2004 (NAME OF SURVEYOR AND QUALIFICATION)
-------------------------------------
Registration No.
--------------------
ADDITIONAL SURVEY REQUIREMENTS:
The Survey also shall include and depict the following matters: (a) zoning
classification of the Real Property and all uses permitted under such zoning
classification; (b) all zoning and recorded setback requirements and building
height requirements; (c) zoning parking requirements (including handicapped
requirements); (d) height and square footage of all buildings located upon the
Real Property, as well as the square footage of each leased premise; (e) number
and size of parking spaces (including handicapped), all of which must be shown
on the plat as striped; (f) metes and bounds legal description of the Real
Property and the total acreage thereof; (g) list of all title exceptions
referenced in the Preliminary Commitment; (h) all matters referenced in the
Preliminary Commitment must be accurately depicted on the plat, or, if not
plottable, the surveyor should indicate the same; (i) a statement from the
surveyor that the Real Property has access to publicly dedicated roadways, and
identifying such roadways by name; (j) a list of any encroachments from the Real
Property onto adjacent property, from adjacent property onto the Real Property,
and of any building or other structures on the Real Property onto or over any
easements that encumber the Real Property or any building/setback lines; (k) a
list of all tax parcel identification numbers relating to the Property (together
with a statement that such parcel numbers constitute all of the parcel numbers
related to the Property and such parcel numbers do not relate to any other
property); (l) a statement that the property depicted on the Survey is the same
property
41
described in the Preliminary Commitment; (m) the distances from all buildings
located upon the Property to all Property lines; (n) the location of all
utilities servicing the Property, including, without limitation, sewer, water,
gas, electric and telephone, to the point of connection with the public system
to the extent visible on the ground or based upon information known or provided
to the surveyor; and (o) any other matters required by any lender providing
financing for the property.
EXHIBIT 1.30
FORM OF ESTOPPEL LETTER
-----------------------
(date)
_________________
_________________
_________________
_________________
RE: _____________________________ (Name of Shopping Center)
Ladies and Gentlemen:
The undersigned (Tenant) has been advised you may purchase the above
Shopping Center, and we hereby confirm to you that:
1. The undersigned is the Tenant of ___________________, Landlord, in
the above Shopping Center, and is currently in possession and
paying rent on premises known as Store No._____________________
[or Address: _________________________], and containing
approximately ______________ square feet, under the terms of the
lease dated ______________, which has (not) been amended by
amendment dated _____________________ (the "Lease"). There are no
other written or oral agreements between Tenant and Landlord.
Tenant neither expects nor has been promised any inducement,
concession or consideration for entering into the Lease, except as
stated therein, and there are no side agreements or understandings
between Landlord and Tenant.
2. The term of the Lease commenced on _________________________,
expiring on __________, with options to extend of _______________
(______) years each.
3. As of ___________________, monthly minimum rental is $__________ a
month.
42
4. Tenant is required to pay its pro rata share of Common Area
Expenses and its pro rata share of the Shopping Center's real
property taxes and insurance cost. Current additional monthly
payments for expense reimbursement total $______________ per month
for common area maintenance, property insurance and real estate
taxes.
5. Tenant has given [no security deposit] [a security deposit of
$___________________].
6. No payments by Tenant under the Lease have been made for more than
one (1) month in advance, and minimum rents and other charges
under the Lease are current.
7. All matters of an inducement nature and all obligations of the
Landlord under the Lease concerning the construction of the
Tenant's premises and development of the Shopping Center,
including without limitation, parking requirements, have been
performed by Landlord.
8. The Lease contains no first right of refusal, option to expand,
option to terminate, or exclusive business rights, except as
follows:
9. Tenant knows of no default by either Landlord or Tenant under the
Lease, and knows of no situations which, with notice or the
passage of time, or both, would constitute a default. Tenant has
no rights to off-set or defense against Landlord as of the date
hereof.
10. The undersigned has not entered into any sublease, assignment or
any other agreement transferring any of its interest in the Lease
or the Premises except as follows:
11. Tenant has not generated, used, stored, spilled, disposed of, or
released any hazardous substances at, on or in the Premises.
"Hazardous Substances" means any flammable, explosive, toxic,
carcinogenic, mutagenic, or corrosive substance or waste,
including volatile petroleum products and derivatives and
drycleaning solvents. To the best of Tenant's knowledge, no
asbestos or polychlorinated biphenyl ("PCB") is located at, on or
in the Premises. The term "Hazardous Substances" does not include
those materials which are technically within the definition set
forth above but which are contained in pre-packaged office
supplies, cleaning materials or personal grooming items or other
items which are sold for consumer or commercial use and typically
used in other similar buildings or space.
The undersigned makes this statement for your benefit and protection with the
understanding that you intend to rely upon this statement in connection with
your intended purchase of the above described Premises from Landlord. The
undersigned agrees that it will, upon receipt of written notice from Landlord,
commence to pay all rents to you or to any Agent acting on your behalf.
Very truly yours,
-----------------------------------
---------------------------(Tenant)
Mailing Address:
By:
------------------------ -------------------------------
Its:
------------------------ ------------------------------
EXHIBIT 9.1(a)(1)
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
This Deed is made and entered into this _____ day of ___________, 200__,
by and between _____________ of the _________ of ________, State of ("Grantor"),
and ___________________________ of the _______ of _______, State of (Grantee"),
having a mailing address of:
WITNESSETH, that Grantor, for and in consideration of the sum of Ten
Dollars ($10.00) and other valuable consideration paid by Grantee, the receipt
of which is hereby acknowledged, does by these presents Bargain and Sell, Convey
and Confirm unto Grantee, the real estate, situated in the County of
________________________, and State of Missouri, more particularly described on
Exhibit A attached hereto and made a part hereof, subject only to those matters
set forth on Exhibit B attached hereto and made a part hereof.
To Have and to Hold the same, together with all rights and appurtenances
to the same belonging, unto Grantee, and to Grantee's heirs and assigns forever.
Grantor hereby covenanting that Grantor and Grantor's heirs, executors and
administrators shall and will Warrant and Defend the title to the premises unto
Grantee, and to Grantee's heirs and assigns forever, against the lawful claims
of all persons claiming by, through or under Grantor but none other, excepting,
however, the general taxes for the calendar year 19____ and thereafter, and the
special taxes becoming a lien after the date of this deed.
IN WITNESS WHEREOF, Grantor has executed these presents the day and year
first above written.
GRANTOR:
---------------------------------
State of _______________ )
) ss
__________ of __________ )
On this ______ day of ________________, 19___, before me appeared to me
known to be the person described in and who executed the foregoing instrument,
and acknowledged that _______________ executed the same as __________________
free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the _________________ and State aforesaid, the day and year first above
written.
----------------------------------
Notary Public
My term expires:
State of _______________ )
) ss
__________ of __________ )
On this ______ day of ________________, 19___, before me appeared to me
personally known, who, being by me duly sworn, did say that he/she is the of
_____________________, a corporation of the State of ________, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation, by
authority of its Board of Directors; and said ____________________ acknowledged
said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the _____________ and State aforesaid, the day and year first above
written.
----------------------------------
Notary Public
My term expires:
EXHIBIT A TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION OF REAL ESTATE
EXHIBIT B TO SPECIAL WARRANTY DEED
LIST OF PERMITTED ENCUMBRANCES
EXHIBIT 9.1(a)(2)
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT AND ASSUMPTION OF LEASES
(Property Name and Location)
THIS ASSIGNMENT AND ASSUMPTION OF LEASES is made as of the ________ day of
____________, 2004, by and between _______________________________, a
___________________ ("Assignor"), and _______________________________, a
_______________________________ ("Assignee").
WITNESSETH:
For good and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:
Assignor hereby sells, transfers, assigns and conveys to Assignee the following:
All right, title and interest of Assignor in and to those certain leases
described on Exhibit A attached hereto and made a part hereof (the "Tenant
Leases"), relating to the leasing of space in those certain improvements located
in the County of ______________, State of ______________, as more particularly
described on EXHIBIT B attached hereto and made a part hereof ("Real Property")
and all of the rights, interests, benefits and privileges of the lessor
thereunder, and to the extent Assignee has not received a credit therefor under
the Purchase Agreement (as defined below), all prepaid rents and security and
other deposits held by Assignor under the Tenant Leases and not credited or
returned to tenants, but subject to all terms, conditions, reservations and
limitations set forth in the Tenant Leases.
This Assignment and Assumption of Leases is given pursuant to that certain
Agreement of Purchase and Sale (as amended, the "Purchase Agreement") dated as
of __________________, 2004, by and between Assignor and Assignee, providing
for, among other things, the assignment of the Tenant Leases.
Assignee hereby accepts the assignment of the Tenant Leases and agrees to assume
and discharge, in accordance with the terms thereof, all of the obligations
thereunder from and after the date hereof.
Assignee agrees to indemnify and hold harmless Assignor from any cost,
liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
Assignor agrees to indemnify and hold harmless Assignee from any cost,
liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Tenant Leases to the extent accruing prior to the date hereof.
This Assignment and Assumption of Leases may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
- 49 -
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption of Leases as of the date first above written.
ASSIGNOR:
By:
----------------------
Name:
Title:
ASSIGNEE:
INLAND WESTERN __________________,
L.L.C,
a Delaware limited liability company
By: Inland Western Retail Real Estate
Trust, Inc.,
a Maryland corporation,
its sole member
By:
--------------------------
Name:
Title:
- 50 -
STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was ACKNOWLEDGED before me on___________________ 2004, by
__________________, the __________________ of _______________________________, a
________________________________, Manager of ________________________,
a______________________________, a _________________________, on behalf of
________________________________.
--------------------------------------
Notary Public, State of
---------------
- 51 -
STATE OF ___________ )
)
COUNTY OF __________ )
This instrument was ACKNOWLEDGED before me on ____________________, 2004, by
__________________, the _____________________of Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, as the sole member of INLAND WESTERN
_____________________, L.L.C., a Delaware limited liability company, on behalf
of said corporation and said limited liability company.
--------------------------------------
Notary Public, State of
---------------
Exhibit A Tenant Leases
Exhibit B Real Property
- 52 -
EXHIBIT A TO ASSIGNMENT OF LEASES
TENANT LEASES
EXHIBIT A - PAGE 1
EXHIBIT B TO ASSIGNMENT OF LEASES
REAL PROPERTY DESCRIPTION
EXHIBIT B - PAGE 1
EXHIBIT 9.1(a)(3)
FORM OF XXXX OF SALE
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF CONTRACTS
(Property Name and Location)
THIS XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF CONTRACTS is made as of the ____
day of __________, 2004, by and between _______________________, a
________________________ ("Assignor"), and __________________________, a
____________________________________ ("Assignee").
WITNESSETH:
For good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, Assignor and Assignee hereby agree as follows:
Assignor hereby sells, transfers, assigns and conveys to Assignee the following:
All right, title and interest of Assignor in and to all tangible personal
property ("Personalty") set forth in the inventory on Exhibit A attached hereto
and made a part hereof, and located on, and used in connection with the
management, maintenance or operation of that certain land and improvements
located in the County of _______________, State of _______________, as more
particularly described in Exhibit B attached hereto and made a part hereof
("Real Property"), but excluding tangible personal property owned or leased by
Assignor's contractors under the Contracts (as defined below).
All right, title and interest of Assignor in and to those certain contracts set
forth on Exhibit C attached hereto and made a part hereof, and all warranties,
guaranties, indemnities and claims (including, without limitation, for
workmanship, materials and performance) and which exist or may hereafter exist
against any contractor, subcontractor, manufacturer or supplier or laborer or
other services relating thereto (collectively, the "Contracts").
All right, title and interest of Assignor in and to those agreements set forth
on Exhibit D attached hereto and made a part hereof (the "License Agreements").
This Xxxx of Sale, Assignment and Assumption of Contracts is given pursuant to
that certain Agreement of Purchase and Sale (as amended, the "Purchase
Agreement") dated as of _________________, 2004, between Assignor and Assignee,
providing for, among other things, the conveyance of the Personalty and the
Contracts.
Assignee hereby accepts the assignment of the Personalty, the Contracts and the
License Agreements and agrees to assume and discharge, in accordance with the
terms thereof, all of the obligations thereunder from and after the date hereof.
Assignee agrees to indemnify and hold harmless Assignor from any cost,
liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
Assignor agrees to indemnify and hold harmless Assignee from any cost,
liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Contracts or License Agreements, to the extent accruing prior to the
date hereof.
- 1 -
This Xxxx of Sale, Assignment and Assumption of Contracts may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Xxxx of Sale,
Assignment and Assumption of Contracts as of the date first above written.
ASSIGNOR:
By:
----------------------------------------
Name:
Title:
ASSIGNEE:
INLAND WESTERN
______________________, L.L.C.
a Delaware limited liability company
By: Inland Western Retail Real Estate
Trust, Inc.,
a Maryland corporation,
its sole member
By:
---------------------------
Name:
Title:
- 2 -
STATE OF ___________ )
)
COUNTY OF __________ )
This instrument was ACKNOWLEDGED before me on___________________, 2004, by
____________________, the _______________________ of
_____________________________, a _____________________________,
_________________________________________________, a
_______________________________, _______________________________, a
______________________________, on behalf of _____________________________.
--------------------------------------
Notary Public, State of
--------------
- 3 -
STATE OF ___________ )
)
COUNTY OF __________ )
This instrument was ACKNOWLEDGED before me on ___________________________, 2004,
by ________________________, the _______________ of Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, as the sole member of INLAND WESTERN
__________________, L.L.C., a Delaware limited liability company, on behalf of
said corporation and said limited liability company.
--------------------------------------
Notary Public, State of
--------------
Exhibit A Personalty
Exhibit B Real Property
Exhibit C Contracts
Exhibit D License Agreements
- 4 -
EXHIBIT A TO XXXX OF SALE
PERSONALTY
EXHIBIT A - Page 1
EXHIBIT B TO XXXX OF SALE
REAL PROPERTY
EXHIBIT B - Page 1
EXHIBIT C TO XXXX OF SALE
CONTRACTS
EXHIBIT C - Page 1
EXHIBIT D TO XXXX OF SALE
LICENSE AGREEMENT
EXHIBIT C - Page 2
EXHIBIT 9.1(a)(6)
FORM OF TENANT NOTICE LETTER
[PLACE ON SELLER LETTERHEAD)
[INSERT DATE]
VIA FEDERAL EXPRESS
INSERT TENANT NOTICE
ADDRESS PER LEASE
ALSO NEED TO SEND NOTICE
TO ANY GUARANTORS
Re: ________________________________________________________ (THE
"PROPERTY")
Ladies and Gentlemen:
The purpose of this letter is to advise you that effective _________,
2004, Inland ______________________, L.L.C. has purchased the Property from
__________________________. In connection with such transaction, all of the
landlord's right, title and interest in, to and under [INSERT REFERENCE TO
TENANT'S LEASE/ GUARANTOR'S GUARANTY BY TITLE AND DATE] (collectively, the
"Lease") was assigned and transferred to Inland _________________________, LLC.
Effectively immediately, please forward any and all rental and other
payments under the Lease to:
-----------------------------------
-----------------------------------
-----------------------------------
Also, effectively immediately, any and all notices and other
communications to the landlord under the Lease shall be forwarded to the address
stated above, but to the attention of XxXxx Xxxxxxx.
If you have any questions or comment, please feel free to call us.
Sincerely,
EXHIBIT C - Page 3
, a
----------------------------------
------------------------------------
By:
------------------------
Name:
----------------------------
Title:
--------------------------
, a
---------------------------------------
-----------------------------------
By:
------------------------
Name:
----------------------------
Title:
--------------------------
EXHIBIT C - Page 4
EXHIBIT 9.1(a)(12)
FORM OF AUDIT LETTER
CURRENT DATE
KPMG LLP
KPMG Plaza
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
We are writing you, as the owners of THE PROPERTY'S NAME (the "Property") at
your request, to confirm our understanding that your audit of the Historical
Summary of Gross Income and Direct Operating Expenses ("Historical Summary") of
THE PROPERTY'S NAME for the year ended DECEMBER 31, 2003, was made for the
purpose of expressing an opinion as to whether the Historical Summary presents
fairly, in all material respects, the gross income and direct operating expenses
in conformity with the CASH OR ACCRUAL basis of accounting. In connection with
your audit, we confirm, to the best of our knowledge and belief, the following
representations made to you during the audit:
1. We have made available to you:
a) All financial records and related data requested by you.
b) All minutes of the meetings of the board of directors, or summaries of
actions of recent meetings for which minutes have not yet been
prepared
2. There have been no:
a) Instances of fraud involving any member of management or employees who
have significant roles in internal control.
b) Instances of fraud involving others that could have a material effect
on the Historical Summary.
c) Other instances of fraud perpetuated on or within the Property.
d) Communications from regulatory agencies concerning non-compliance
with, or deficiencies in, financial reporting practices that could
have a material effect on the Historical Summary.
EXHIBIT C - Page 5
e) Violations or possible violations of laws or regulations, the effects
of which should be considered for disclosure in the Historical Summary
or as a basis for recording the loss contingency.
3. There are no:
a) Unasserted claims or assessments that out lawyer has advised us are
probable of assertion and must be disclosed in accordance with the
Statement of Financial Accounting Standards (SFAS) No. 5, Accounting
for Contingencies.
b) Material liabilities or gain or loss contingencies (including oral and
written guarantees) that are required to be accrued or disclosed by
SFAS No. 5.
c) Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
d) Events that have occurred subsequent to the balance sheet date and
through the date of this latter that would require adjustment to or
disclosure in the Historical Summary.
4. The property has complied with all aspects of the contractual agreements
that would have a material effect on the Historical Summary in the event of
noncompliance.
5. All income from operating leases is included as gross income in the
Historical Summary. No other forms of revenue are included in the
Historical Summary.
Further, we confirm that we are responsible for the fair presentation in the
Historical Summary of Gross Income and Direct Operating Expenses for the year
ended December 31, 2003, in conformity with the CASH OR ACCRUAL basis of
accounting.
Very Truly Yours,
---------------------------------
NAME , Owner
---------------------------------
NAME, Property Accountant
EXHIBIT C - Page 6
EXHIBIT 1.25
RENT ROLL
7/08/04 PRIORITY PROPERTIES, LLC
11:31 am
User: MANAGER Commercial Rent Roll
Page: 1
Property : Manchester Xxxxx, X.X. Report Date From : 7/01/04 To : 7/31/04
St. Louis, MO
PRORATED BASE RENT BASE RENT
SQ. FOOT TERM UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
----------------------------------------------------------------------------------------------------------------------------------
ST. LOUIS PLAYSCAPES, INC. 631-13861 7500 12/06/03 12/31/08 12500.00 150000.00 20.00 1/01/04 12,500.00
Comments: OPTION 1: 1/1/09-12/31/14 1/01/05 13,125.00
1/01/06 13,437.50
RATE: MARKET 1/01/07 13,750.00
1/01/08 14,062.50
TOWN & COUNTRY L.T. Inc. #380 631-13867 34917 12/06/94 1/31/05 28370.08 340440.96 9.75 1/01/95 28,370.08
Comments: RENEWAL TERM 3 5 YEAR TERMS 1ST 5 YEARS 32,007.25
2ND 5 YEARS 34,917.00
3RD 5 YEARS 37,826.75
Hobbytown USA 631-13875 2450 2/01/00 7/31/05 3675.00 44100.00 18.00 1/01/03 3,675.00
Memories Unlimited, Inc. 631-13877 2500 5/01/04 4/30/07 3645.83 43749.96 17.50 5/01/04 3,645.83
5/01/05 3,750.00
5/01/06 3,854.17
OPERATING EXPENSE REAL ESTATE TAX CPI EXPENSE GROSS RENTS
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
----------------------------------------------------------------------------------------------------------------
ST. LOUIS PLAYSCAPES, INC. 712.50 1.14 1,181.25 1.89 0.00 0.00 23.03 14,393.75
TOWN & COUNTRY L.T. Inc. #380 2,268.40 0.78 0.00 0.00 0.00 0.00 10.53 30,638.48
Hobbytown USA 261.75 1.28 383.00 1.88 0.00 0.00 21.16 4,319.75
Memories Unlimited, Inc. 258.33 1.24 397.92 1.91 0.00 0.00 20.65 4,302.08
Page 1
99 CENT STORE 631-13881 3000 5/01/02 4/30/07 4125.00 49500.00 16.50 6/01/02 4,125.00
Comments: OPTION #1: 5/1/07-4/30/12 5/01/05 4,500.00
RATE: TO BE NEGOTIATED
Office Max #210 631-13887 23920 12/01/04 11/30/09 19933.33 239199.96 10.00 7/01/01 19,933.33
Comments: OPTION #1 4-5YEAR TERMS-EXERCISED 1ST OPTION 12/01/04 20,930.00
MONTHLY RATE 20,930.00
Wal Mart, Store # 1177 631-13901 154717 4/26/95 4/25/15 90251.58 1083018.96 7.00 5/01/95 90,251.58
Comments: 6- 5 year options $1,1083,019.00
%RENT BEGINNING WITH THE (8TH)LEASE YR, THE AMOUNT = TO 1/2
% OF THE AMOUNT BY WHICH THE GROSS SALES EXCEED THE (7TH)YR
BUT IN NO EVENT EXCEED $1.00 PSF OF THE LEASED BLDG SPACE
HOME DECORATING CENTER 631-13913 15000 20625.00 247500.00 16.50 0.00
Comments: HOME DECORATING CENTER LEASE
OUT FOR EXECUTION-COMMENCEMENT DATE
OF 10/15/04 ANTICIPATED-OPTION 1: YRS 4-6 @ $17.50 PSF
OPTION 2: YRS 7-9 @ $19.00 PSF
99 CENT STORE 325.00 1.30 467.50 1.87 0.00 0.00 19.67 4,917.50
Office Max #210 1,636.00 0.82 3,312.66 1.66 0.00 0.00 12.48 24,881.99
Wal Mart, Store # 1177 0.00 0.00 0.00 0.00 0.00 0.00 7.00 90,251.58
HOME DECORATING CENTER 1,550.00 1.24 2,387.50 1.91 0.00 0.00 19.65 24,562.50
7/08/04 PRIORITY PROPERTIES, LLC
11:31 am
Page 2
User: MANAGER Commercial Rent Roll
Page: 2
Property : Manchester Xxxxx, X.X. Report Date From : 7/01/04 To : 7/31/04
St. Louis, MO
PRORATED BASE RENT BASE RENT
SQ. FOOT TERM UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
----------------------------------------------------------------------------------------------------------------------------------
Payless Shoe Source #2036 631-13921 3000 6/01/95 5/31/05 4600.00 55200.00 18.40 6/01/00 4,600.00
Comments: RENEWAL OPTION: 6/1/05-5/31/10 $5,290.00
Home Depot, Store # 3004 631-13929 111175 11/06/94 11/07/19 69174.00 830088.00 7.47 12/01/94 69,174.00
Comments: 10, 5 year options at same rental rate with 6 months notice
Ronan Ltd. T&C Tobacco 631-13933 1400 2/01/04 1/31/07 2216.67 26600.04 19.00 2/01/04 2,216.67
2/01/05 2,333.33
2/01/06 2,450.00
*** VACANT *** 631-13935 1400 0.00 0.00 0.00 0.00
SPECTACULAR CLIPS, INC. 631-13937 1400 5/01/04 4/30/09 2450.00 29400.00 21.00 5/01/04 2,450.00
Comments: EXERCISED OPTION 5/01/05 2,508.33
5/01/06 2,566.67
5/01/07 2,625.00
5/01/08 2,683.33
OPERATING EXPENSE REAL ESTATE TAX CPI EXPENSE GROSS RENTS
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
----------------------------------------------------------------------------------------------------------------
Payless Shoe Source #2036 183.08 0.73 0.00 0.00 0.00 0.00 19.13 4,783.08
Home Depot, Store # 3004 1,875.86 0.20 0.00 0.00 0.00 0.00 7.67 71,049.86
Ronan Ltd. T&C Tobacco 151.00 1.29 217.00 1.86 0.00 0.00 22.15 2,584.67
*** VACANT *** 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
SPECTACULAR CLIPS, INC. 133.00 1.14 220.50 1.89 0.00 0.00 24.03 2,803.50
Page 3
Chic Nails 631-13939 1400 6/01/01 5/31/06 2333.33 27999.96 20.00 6/01/04 2,333.33
6/01/05 2,391.66
Art & Frame, Inc. 631-13941 1400 12/01/03 11/30/08 2333.33 27999.96 20.00 12/01/03 2,333.33
12/01/04 2,391.67
12/01/05 2,566.67
12/01/07 2,683.33
RBL, Inc. 631-13943 1400 05/01/04 4/30/07 2275.00 27300.00 19.50 5/01/04 2,275.00
Comments: N/A 5/01/06 2,333.33
Consumer Programs Inc. 631-13945 2123 4/01/00 3/31/05 3255.27 39063.24 18.40 4/01/00 3,255.27
United States Post Office 631-13947 3500 5/01/02 4/30/07 5270.39 63244.68 18.07 5/01/02 5,270.39
Comments: EXERCISED OPTION COMMENCING 5/1/02-4/30/07
PER NOTIFICATION DATED 11/20/00
OPTION 2: 5/1/07-4/30/12
RATE: $6110.65/MO
Chic Nails 151.00 1.29 217.00 1.86 0.00 0.00 23.15 2,701.33
Art & Frame, Inc. 151.00 1.29 217.00 1.86 0.00 0.00 23.15 2,701.33
RBL, Inc. 133.00 1.14 220.50 1.89 0.00 0.00 22.53 2,628.50
Consumer Programs Inc. 229.00 1.29 332.00 1.88 0.00 0.00 21.57 3,816.27
United States Post Office 0.00 0.00 0.00 0.00 0.00 0.00 18.07 5,270.39
7/8/04 PRIORITY PROPERTIES, LLC
11:31 am
Commercial Rent Roll
User: MANAGER Page: 3
Property : Manchester Xxxxx, X.X. Report Date From : 7/01/04 To : 7/31/04
St. Louis, MO
Page 4
PRORATED BASE RENT BASE RENT
SQ. FOOT TERM UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
----------------------------------------------------------------------------------------------------------------------------------
FASTRACK FITNESS, LLC 631-13949 3000 3/01/04 2/28/07 4500.00 54000.00 18.00 5/01/04 4,500.00
3/01/05 4,750.00
3/01/06 5,000.00
ST.LOUIS PLAYSCAPES 631-13951 3000 5/01/04 4/30/07 4500.00 54000.00 18.00 7/01/04 4,500.00
5/01/05 4,750.00
5/01/06 5,000.00
Petsmart, Inc. #259 631-13957 27438 3/31/95 3/31/10 20006.88 240082.56 8.75 04/01/95 20,006.88
Comments: OPTION #1 5 YEARS BASED ON CPI 04/01/05 21,150.08
OPTION #2 5 YEARS BASED ON CPI
OPTION #3 5 YEARS BASED ON CPI
OPTION #4 5 YEARS BASED ON CPI OPTION #5 5 YEARS CPI
The Sports Authority 631-13961 40500 11/14/94 11/30/14 27000.00 324000.00 8.00 12/01/94 27,000.00
Comments: Option #1 10-5 year terms at $27000.00/mo
Boston Chicken #0784 631-13965 0 9/01/95 8/31/05 6600.00 79200.00 0.00 9/01/00 6,600.00
Comments: #1 $7,260.00 #5 $10,629.37
#2 $7,986.00 #6 $11,692.30
OPERATING EXPENSE REAL ESTATE TAX CPI EXPENSE GROSS RENTS
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
----------------------------------------------------------------------------------------------------------------
FASTRACK FITNESS, LLC 285.00 1.14 472.50 1.89 0.00 0.00 21.03 5,257.50
ST.LOUIS PLAYSCAPES 310.00 1.24 477.50 1.91 0.00 0.00 21.15 5,287.50
Petsmart, Inc. #259 1,634.49 0.71 0.00 0.00 0.00 0.00 9.46 21,641.37
The Sports Authority 0.00 0.00 0.00 0.00 0.00 0.00 8.00 27,000.00
Boston Chicken #0784 0.00 0.00 0.00 0.00 0.00 0.00 0.00 6,600.00
Page 5
#3 $8,784.60 #7 $12,861.53
#4 $9,663.06
3-DAY BLINDS, STORE # 212 631-13969 4550 4/01/00 3/31/05 8720.83 104649.96 23.00 4/01/00 8,720.83
Comments: OPTION #1 EXERCISED 4/01/05 9,479.17
OPTION #2 5 YEARS 9,479.17
----------------------------------------------------------------------------------------------------------------------------------
TOTALS: 450690 348361.52 4180338.24 9.30
3-DAY BLINDS, STORE # 212 434.00 1.14 0.00 0.00 0.00 0.00 24.14 9,154.83
-----------------------------------------------------------------------------------------------------------------
TOTALS: 12,682.41 0.34 10,503.83 0.28 0.00 0.00 9.89 371,547.76
Total Occupied Square Feet : 449290
Total Vacant Square Feet : 1400
7/08/04 PRIORITY PROPERTIES, LLC
11:31 am
User: MANAGER Commercial Rent Roll
Page: 4
Property : TOTALS Report Date From : 7/01/04 To : 7/31/04
PRORATED BASE RENT BASE RENT
SQ. FOOT TERM UNIT INFO BASE RENT RENT PER INCREASE INCREASE
TENANT UNIT REF NO. OCCUPIED FROM TO BASE RENT ANNUAL SQ FT/YR (DATE) (AMOUNT)
---------------------------------------------------------------------------------------------------------------------------------
GRAND TOTALS: 450690 348361.52 4180338.24 9.30
OPERATING EXPENSE REAL ESTATE TAX CPI EXPENSE GROSS RENTS
TENANT MONTH SQ FT/YR MONTH SQ FT/YR MONTH SQ FT/YR SQ FT/YR TOTAL
------------------------------------------------------------------------------------------------------------------
GRAND TOTALS: 12682.41 0.34 10,503.83 0.28 0.00 0.00 9.89 371,547.76
Page 6
Total Occupied Square Feet : 449290
Total Vacant Square Feet : 1400
Page 7
