Exhibit 10.12
STORE NO. 2630
REAL ESTATE PURCHASE CONTRACT
THIS REAL ESTATE PURCHASE CONTRACT (the "Agreement") is made and entered
into as of the Effective Date (as defined in Paragraph 29 below) by and between
COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation (hereinafter
referred to as "Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation (hereinafter referred to as "Purchaser").
WITNESSETH:
For and in consideration of TEN AND 00/100 DOLLARS ($10.00), the agreements
made herein, and other good and valuable considerations, the receipt and legal
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. THE PROPERTY. Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, upon and subject to the terms
and conditions herein set forth, certain property more particularly described in
EXHIBIT "A" (the "Property"), together with all improvements located thereon
and/or to be constructed thereon between the Effective Date and the Closing Date
(as defined in Paragraph 10 below), and all rights, hereditaments and
appurtenances thereto, but subject only to that certain Lease Agreement
("Lease") dated April 21, 2003 with Eckerd Corporation, a Delaware corporation
("Tenant").
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for Property shall
be THREE MILLION THREE HUNDRED SIXTY THREE THOUSAND EIGHT HUNDRED FIFTY
FOUR AND NO/100 DOLLARS ($3,363,854.00) subject to adjustments and
prorations as provided herein. The Purchase Price shall be paid in federal
funds by Purchaser to Seller at Closing (as defined in Paragraph 10 below)
by wire transfer to Escrow Agent (as defined in Paragraph 3 below), and the
Closing shall occur pursuant to the terms of this Agreement and a customary
deed and money escrow agreement (the "Deed and Money Escrow Agreement") to
be entered into among Seller, Purchaser and Escrow Agent.
(b) Seller and Purchaser acknowledge and agree that the Purchase
Price was calculated by dividing $289,290 (which is the aggregate amount of
Rent (as defined in the Lease) payable by Tenant to Seller, as landlord,
under the Lease for the twelve (12) month period commencing on the Lease
Commencement Date (as defined in the Lease) under the Lease (the "Lease
Rent")), by .086. Pursuant to Section 9.8 of the Lease, the Rent is subject
to adjustment based on amount of the Actual Building Hard Costs (as defined
in the Lease). If the Rent is adjusted pursuant to Section 9.8 of the
Lease, then the Lease Rent would be affected. Seller and Purchaser agree
that, in the event that the Rent is adjusted pursuant to Section 9.8 of the
Lease, then the Purchase Price shall be adjusted (using the formula set
forth above) based upon the adjusted Lease Rent; provided, however, that
the Purchase Price shall not be adjusted unless and until the landlord
under the Lease and Tenant have executed and entered into an amendment to
the Lease, which amendment shall establish the final Rent payable by Tenant
to the landlord under the Lease for the entire term (inclusive of any
extension terms) thereof. Seller covenants and agrees that it shall send
Purchaser copies of
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all correspondence between Tenant and Seller concerning any adjustment to
the Rent and any Lease amendment. Seller and Purchaser acknowledge that the
adjustment, if any, of the Rent under the Lease may not be completed prior
to the Closing. If such adjustment is completed prior to the Closing, then
Seller and Purchaser shall enter into an amendment to this Agreement
memorializing the final Purchase Price. If such adjustment is not completed
prior to the Closing, then the obligations of Seller and Purchaser
contained in this Paragraph 2(b) shall survive the Closing without
restriction or limitation, and Seller and Purchaser shall make final
determination of the Purchase Price within ten (10) days after final
adjustment of all Rent under the Lease or the date upon which Seller,
Purchaser and Tenant determine that no adjustment to the Rent shall be made
pursuant to Section 9.8 of the Lease (in which event no adjustment to the
Purchase Price shall be made pursuant to this Paragraph 2(b)). Purchaser
covenants and agrees that after Closing Purchaser shall sign a Lease
amendment adjusting the Rent as required by the terms of the Lease and this
Agreement. If the Purchase Price paid by Purchaser to Seller at Closing
exceeds the final, adjusted Purchase Price as determined in accordance with
this Paragraph 2(b), then, within three (3) days after Seller's and
Purchaser's determination of the final, adjusted Purchase Price, Seller
shall pay such excess to Purchaser. If the Purchase Price paid by Purchaser
to Seller at Closing is less than the final, adjusted Purchase Price as
determined in accordance with this Paragraph 2(b), then, within three (3)
days after Seller's and Purchaser's determination of the final, adjusted
Purchase Price, Purchaser shall pay such deficiency to Seller.
3. XXXXXXX MONEY. Within three (3) business days of the Effective Date
of this Agreement, Purchaser shall deposit the sum of FIFTY THOUSAND AND 00/100
DOLLARS ($50,000.00) as xxxxxxx money (the "Xxxxxxx Money") with Chicago Title
Insurance Company-National Division, Chicago, Illinois (the "Escrow Agent"),
which sum shall be held by Escrow Agent, in escrow, pursuant to the terms of a
modified joint order escrow agreement (the "Escrow Agreement"), subject,
however, to disbursement in accordance with the terms and provisions of such
escrow agreement. The Escrow Agreement shall provide that disbursement of the
Xxxxxxx Money (and any interest earned thereon) shall not be made without the
joint direction of Seller and Purchaser; provided, however, that Purchaser shall
have the unilateral right, at any time prior to the expiration of the Inspection
Period (as defined in Paragraph 4 below), to direct disbursement of the Xxxxxxx
Money (and any interest earned thereon) to Purchaser. Provided that Purchaser
furnishes Escrow Agent with a form W-9 containing Purchaser's U.S. Taxpayer
Identification Number, the Xxxxxxx Money shall, at Purchaser's election, be held
by Escrow Agent in an interest bearing money market savings and interest earned
thereon shall be reported under Purchaser's U.S. Taxpayer Identification Number.
Except as otherwise provided in this Agreement, the Xxxxxxx Money shall be
credited to and considered as payment of part of the Purchase Price at the time
of and upon consummation of the Closing hereunder, and the interest earned
thereon shall be delivered to Purchaser by Escrow Agent.
4. INSPECTION PERIOD. Subject to rights of Tenant and the limitations,
if any, imposed on the landlord's right of entry under the Lease, Purchaser and
its agents, employees, representatives, consultants and independent contractors
shall have from the Effective Date of this Agreement to the date that is thirty
(30) business days after the Effective Date (the "Inspection Period") in which
to conduct, at Purchaser's sole expense, such physical, environmental,
engineering and feasibility reports, inspections, examinations, tests and
studies as Purchaser deems appropriate (including,
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without limitation, interviews of Tenant, but Seller makes no representations,
warranties and/or guaranties as to any information received by Purchaser from
Tenant) in an effort to determine whether the Property suitable for Purchaser's
intended uses of the Property including, without limitation, those matters
disclosed by any survey of the Property obtained by Seller as provided in
Paragraph 5 hereof, and those matters related to the title to the Property as
provided in Paragraph 5 hereof. In connection with Purchaser's investigation of
the Property, at all times prior to the Closing, Seller shall provide access via
the World Wide Web (except for items larger than letter or legal size documents
such as surveys, site plans, and plans and specifications, hard copies of which
will be delivered to Purchaser) to Purchaser to the following items (which
Seller shall update from time to time prior to the Closing Date as and when
Seller shall receive any more current or accurate information or materials) to
the extent the same are in Seller's possession or are readily available to
Seller: (i) any existing title commitments for the Property (and to the extent
not delivered by the Title Insurer (as defined in Paragraph 5 below) pursuant to
Paragraph 5 below, legible copies of any title exception documents thereto),
(ii) the Lease, (iii) any existing surveys of the Property, (iv) any existing
appraisals of the Property, (v) any Phase I and other environmental reports or
relating to the Property, (vi) all other third party reports with the respect to
the Property, (vii) the most recent real estate tax bills relating to the
Property, (viii) as built plans and specifications for the improvements, if any,
on and to be constructed upon the Property, (ix) all written or oral (and
including all amendments thereto and modifications thereof) guarantees and
warranties in effect with respect to the Property or any portion thereof, which
shall survive the closing hereunder; (x) all licenses, certifications,
authorizations, approvals, applications, variances and permits issued or
approved by any governmental authority and relating to the operation, ownership,
design, development, construction, repair and maintenance of the Property or any
part thereof, including, without limitation, machinery and building permits,
zoning variances and approvals, business licenses, ingress and egress permits
and the like, and any and all amendments to or modifications of any of the
foregoing (collectively, the "Licenses"); and (xi) all essential data,
correspondence, documents, agreements, waivers, notices, applications and other
records in respect to the ownership, operation, design, development,
construction, repair and maintenance of the Property (including, without
limitation, any such materials relating to transactions with taxing authorities,
governmental agencies, utilities, vendors, Tenant, mortgagees and others with
whom Purchaser may be dealing subsequent to closing)(all items referred to in
clauses (i) through (xi) shall hereinafter sometime be referred to collectively
as the "Existing Due Diligence Items"). At any time prior to the Closing,
Purchaser, Purchaser's agents, employees, representatives, consultants and
independent contractors shall have the right, subject to rights of Tenant and
the limitations, if any, imposed on the landlord's right of entry under the
Lease, to come onto the Property, at such time as reasonably designated by
Seller, for the purpose of conducting the foregoing reports, inspections,
examinations, tests and studies, and updating such reports, inspections,
examinations, tests and studies as provided in Paragraph 7 below. No such
report, inspection, examination, test or study shall unreasonably interfere with
uses of the Property by Seller or Tenant or violate any law or regulation of any
governmental entity having jurisdiction over the Property. Notwithstanding the
foregoing, Purchaser shall not conduct any invasive testing without Seller's
prior consent, such consent not to be unreasonably withheld or delayed, and
subject to the rights of the Tenant under the Lease. Upon the completion of any
inspection, examination, test or study, if any, and provided that Purchaser
elects not to acquire the Property pursuant to this Agreement, Purchaser shall
promptly restore the Property to substantially the condition that existed
immediately prior to such inspection, examination, test or study. Purchaser
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agrees to indemnify, defend and hold Seller and Tenant harmless from any and all
actual, out-of-pocket loss and expense (including, without limitation,
reasonable attorney's fees) resulting from claims and damages (including, but
not limited to, injury to, or death of persons, loss or damage to property, the
performance of any labor or services for the Purchaser, or the release, escape,
discharge, emission, spillage, seepage or leakage by Purchaser on or from the
Property of any hazardous substance brought upon the Property by Purchaser or
any other violation by Purchaser of any environmental law applicable to the
Property) directly caused by, arising out of, or incurred in connection with the
exercise by Purchaser of Purchaser's rights under this Paragraph 4. Any
provision of this Agreement to the contrary notwithstanding, the indemnification
obligation of Purchaser under this Paragraph 4 shall survive the Closing or any
earlier termination of this Agreement.
5. TITLE/SURVEY. No later than three (3) days following the Effective
Date, Buyer shall, at Seller's sole cost and expense, order from the Title
Insurer (as defined hereinbelow) the following: (a) a commitment for an ALTA
Owner's Title Insurance Policy (the "Title Commitment") for the Property,
together with legible copies of any and all title exception documents referenced
therein, issued by Chicago Title Insurance Company (the "Title Insurer") in the
amount of the Purchase Price of the Property on or after the date hereof,
showing Seller as owner of the Property in fee simple, subject only to the title
exceptions approved or deemed approved by Purchaser pursuant to this Paragraph 5
or Paragraph 6 below (each a "Permitted Exception"), and other exceptions
pertaining to liens or encumbrances of a definite or ascertainable amount
(which, in the aggregate, do not exceed that portion of the Purchase Price
payable to Seller on the Closing Date) which may be removed by the payment of
money at closing and which Seller shall so remove, and providing for full
extended coverage over all general title exceptions contained in such Policy and
the following special endorsements (collectively, the "Special Title
Endorsements"): Zoning Endorsement 3.1 (amended to include parking), owner's
comprehensive, access, survey (legal description equivalency), separate tax
parcel, contiguity (if applicable), waiver of creditor's rights, environmental
protection lien, encroachment (if applicable), utility facility, subdivision,
location, deletion of the arbitration provision, and any other endorsements
required by Purchaser; and (b) Seller's existing survey relating to the Property
(the "Survey"). Not less than five (5) days prior to the expiration of the
Inspection Period, Purchaser may deliver to Seller a notice (the "Title and
Survey Notice") identifying any matters contained in or disclosed by any of the
Title Commitment and/or the Survey that are not acceptable to Purchaser in its
sole and absolute discretion (each, a "Title/Survey Objection", and
collectively, the "Title/Survey Objections"). Purchaser's failure to deliver the
Title and Survey Notice as aforesaid shall be deemed Purchaser's approval and
acceptance of the Title Commitment and the Survey, and all matters shown and
referenced thereon and therein shall be deemed Permitted Exceptions.
Additionally, Purchaser's failure to object to any matters disclosed by the
Title Commitment and/or the Survey in a Title and Survey Notice shall be deemed
Purchaser's acceptance of such matters, and such matters shall be deemed
Permitted Exceptions. If Purchaser shall deliver the Title and Survey Notice to
Seller as aforesaid, Seller shall, within five (5) days after receipt of the
same, notify Purchaser, with respect to each Title/Survey Objection, whether
Seller intends to either (a) cause the Title/Survey Objection to be removed, (b)
have the Title Insurer issue a title endorsement insuring against damage and
loss caused by any Title/Survey Objection (which endorsement shall be subject to
the review and approval of Purchaser), or (c) take no further action regarding
such Title/Survey Objection in which event, subject to the immediately following
sentence, such Title/Survey Objection shall become a Permitted Exception.
Notwithstanding the foregoing,
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Seller shall, at its expense, remove (or cause to be removed) or cause the Title
Insurer to insure over any Title/Survey Objection appearing on the Title
Commitment that is any of the following: (1) judgments against Seller, and/or
(2) mortgages or monetary liens, defects, obligations or exceptions of a
definite and ascertainable amount that can be satisfied solely by the payment of
money (items (1) and (2) above to be hereinafter referred to collectively as
"Monetary Exceptions"). If Seller elects, or is deemed to have elected, item (c)
above, then Purchaser shall have the right, by delivering notice to Seller
within three (3) business days after the expiration of the aforementioned five
(5) day period to either (i) terminate this Agreement in which event the Xxxxxxx
Money (and any interest earned thereon) shall be immediately returned to
Purchaser and thereupon neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, or (ii) waive its objection
and accept title to the Property subject to such Title/Survey Objections, in
which event this Agreement shall remain in full force and effect. Seller's
failure to notify Purchaser within the aforementioned five (5) day period of
which foregoing course of action Seller elects to take with respect to a
Title/Survey Objection shall be deemed Seller's election of item (c) above. With
respect to any Title/Survey Objection that Seller has elected or is deemed to
have elected not to take any further action, Purchaser's failure to terminate
this Agreement on or before the expiration of the aforementioned three (3)
business day period as aforesaid shall be deemed Purchaser's waiver of its
objection as provided in (ii) above. If the Title Commitment discloses
judgments, bankruptcies or other matters against other persons having names the
same as or similar to that of Seller, Seller, on the Title Insurer's request,
shall deliver to the Title Insurer affidavits or other evidence reasonably
acceptable to the Title Insurer showing and/or confirming that such judgments,
bankruptcies or other matters are not against Seller, or any affiliates.
Notwithstanding anything in this Section or Agreement to the
contrary, Seller may elect to not pay off any mechanic's or materialman's lien
filed against the Property in connection with the construction provided Seller
bonds any such lien to the reasonable satisfaction of Purchaser and the Title
Insurer and further provided that the Title Insurer issues, at Seller's cost, an
endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to
Section 10(c) below insuring against any loss or damage arising on account of
such lien. Seller shall have one (1) year from the Closing Date to finalize and
cause the release of any mechanic's or materialman's lien filed against the
Property in connection with Seller's work to construct, complete and/or to
perform warranty work on the Improvements pursuant to Section 15(3) below. This
provision shall survive the Closing.
6. UPDATED TITLE AND SURVEY. Not less than fifteen (15) business days
prior to the Closing, Seller shall deliver or cause to be delivered to Purchaser
(a) an as-built survey of the Property prepared by a surveyor licensed in the
State of Oklahoma (the "As-Built Survey") certified to Purchaser, Purchaser's
lender, if any, the Title Insurer and such other parties as Purchaser shall
designate in writing to Seller prior to ten (10) days before the Closing Date,
and prepared in accordance with the Accuracy Standards and Minimum Standard
Detail Requirements for ALTA-ACSM Land Title Surveys as adopted by the American
Land Title Association, the American Congress on Surveying and Mapping and the
National Society of Professional Surveyors in 1999, and prepared in accordance
with the items set forth in the Surveyor's Certificate and other requirements
attached hereto as EXHIBIT "F" and made a part hereof, and (b) an updated Title
Commitment (including legible copies of any new title exception documents not
disclosed in the initial Title Commitment) for the Property. Seller shall be
responsible to pay for the costs of the Xx-
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Built Survey up to a total cost of $1,000. Purchaser shall pay the costs of the
As-Built Survey in excess of $1,000. Notwithstanding the foregoing, if the cost
of the As-Built Survey is expected to exceed the amount that Seller is obligated
to pay, then, prior to ordering the same, Seller shall obtain Purchaser's prior
approval of the cost thereof. If either (i) the As-Built Survey shows any
encroachments onto the Property from any adjacent property, any encroachments by
or from the Property onto any adjacent property, or any violation of or
encroachments upon any recorded building lines, restrictions or easements
affecting the Property that are not Permitted Exceptions or any other matters
that are not disclosed by the original Survey, or (ii) such updated Title
Commitment contains any exception to title or reference any other matter that is
not a Permitted Exception or otherwise is not reflected in the original Title
Commitment (any such matters referenced in clauses (i) and (ii) above to be
hereinafter referenced to as, a "New Title/Survey Exception"), then Purchaser
may, not later than ten (10) business days after receipt of the last of the
As-Built Survey and updated Title Commitment (including legible copies of any
new title exception documents not disclosed in the initial Title Commitment),
deliver to Seller a notice (the "New Title and Survey Notice") identifying such
New Title/Survey Exceptions and Purchaser's objections thereto. Purchaser's
failure to deliver the New Title and Survey Notice as aforesaid shall be deemed
Purchaser's approval and acceptance of the As-Built Survey and updated Title
Commitment, and all matters shown and referenced thereon and therein shall be
deemed Permitted Exceptions. Purchaser's failure to raise in the New Title and
Survey Notice any matters that constitute New Title/Survey Exceptions as
aforesaid shall be deemed Purchaser's approval and acceptance such matters and
such matters shall be deemed Permitted Exceptions. If Purchaser shall deliver
the New Title and Survey Notice to Seller as aforesaid, then Seller shall,
within two (2) business days after receipt of the same, notify Purchaser, with
respect to each new Title/Survey Exception, whether Seller intends to either (a)
cause any New Title/Survey Exception to be removed, (b) have the Title Insurer
issue a title endorsement insuring against damage caused by any New Title/Survey
Exception (which endorsement shall be subject to the review and approval of
Purchaser), or (c) take no further action regarding such New Title/Survey
Exception in which event, subject to the immediately following sentence, such
New Title/Survey Exception shall become a Permitted Exception. Notwithstanding
the foregoing, Seller shall, at its expense, remove (or cause to be removed) or
cause the Title Insurer to insure over any New Title/Survey Exception that
constitutes a Monetary Exception. If Seller elects, or is deemed to have
elected, item (c) above, then Purchaser shall have the right, by delivering
notice to Seller within three (3) days after the expiration of the
aforementioned two (2) business day period (and the Closing Date shall be
extended accordingly to afford Purchaser such three (3) business day period),
and without waiving any rights of Purchaser for a Seller default under this
Agreement, to either (i) terminate this Agreement in which event the Xxxxxxx
Money (and any interest earned thereon) shall be immediately returned to
Purchaser and thereupon neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, or (ii) waive its objection
and accept title to the applicable Property subject to such New Title/Survey
Exception, in which event this Agreement shall remain in full force and effect.
Seller's failure to notify Purchaser within the aforementioned two (2) business
day period of which foregoing course of action Seller elects to take with
respect to a New Title/Survey Exception shall be deemed Seller's election of
item (c) above. With respect to any New Title/Survey Objection that Seller has
elected or is deemed to have elected not to take any further action, Purchaser's
failure to terminate this Agreement on or before the expiration of the
aforementioned three (3) business day period as aforesaid shall be deemed
Purchaser's waiver of its objection as provided in (ii) above. If the
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updated Title Commitment discloses judgments, bankruptcies or other matters
against other persons having names the same as or similar to that of Seller,
Seller, on the Title Insurer's request, shall deliver to the Title Insurer
affidavits or other evidence reasonably acceptable to the Title Insurer showing
and/or confirming that such judgments, bankruptcies or other matters are not
against Seller, or any affiliates.
If Seller has elected or, with respect to Monetary Defects is
required, to cure any Title/Survey Objection or any New Title/Survey Exception
as provided above (whether by removal of, or obtaining title insurance over, the
same), but failed to cure any such matters prior to the Closing Date, then
Purchaser, and without waiving any rights of Purchaser for a Seller default
under this Agreement, may elect to either (i) terminate this Agreement in which
event the Xxxxxxx Money shall be immediately returned to Purchaser and thereupon
neither Seller nor Purchaser shall have any further rights, duties or
obligations under this Agreement, (ii) waive its objection and accept the
Property subject to such Title/Survey Objection or New Title/Survey Exception,
in which event this Agreement shall remain in full force and effect; provided,
however, that if the Title/Survey Objection or New Title/Survey Exception, is a
Monetary Exception, then Purchaser shall have the right to deduct from the
Purchase Price the amount of such Monetary Exception, and any amount so deducted
from the Purchase Price shall be paid to the appropriate party in exchange for
the removal of such Monetary Exceptions; or (iii) xxx Seller for specific
performance. Notwithstanding anything in this Section or Agreement to the
contrary, Seller may elect to not pay off any mechanic's or materialman's lien
filed against the Property in connection with the construction provided Seller
bonds any such lien to the reasonable satisfaction of Purchaser and the Title
Insurer and further provided that the Title Insurer issues, at Seller's cost, an
endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to
Section 10(c) below insuring against any loss or damage arising on account of
such lien. Seller shall have one (1) year from the Closing Date to finalize and
cause the release of any mechanic's or materialman's lien filed against the
Property in connection with Seller's work to construct, complete and/or to
perform warranty work on the Improvements pursuant to Section 15(3) below. This
provision shall survive the Closing.
7. OBJECTIONS TO INVESTIGATIONS. In the event that the results of the
inspections, investigations, reviews and feasibility studies to which reference
is made in Paragraph 4 above are, in Purchaser's sole opinion and within
Purchaser's sole discretion, unacceptable to Purchaser for any or no reason
whatsoever, and Purchaser so notifies Seller of the fact on or before the
expiration of the Inspection Period provided in Paragraph 4 hereof, then the
Xxxxxxx Money deposited by Purchaser with Escrow Agent hereunder, together with
all interest earned thereon, shall immediately be returned to Purchaser upon
Purchaser's demand, and this Agreement shall thereupon be terminated in its
entirety, and shall be of no further force and effect and all parties hereto
shall thereupon be relieved and absolved of any further liabilities or
obligations whatsoever to each other hereunder, except with respect to those
liabilities or obligations hereunder which are expressly stated to survive the
termination of this Agreement. The failure of the Purchaser to notify Seller of
the unacceptability of any such inspections, investigations, reviews and
feasibility studies prior to the expiration of the Inspection Period shall
constitute a waiver of Purchaser's right to terminate this Agreement on account
thereof, in which event the Xxxxxxx Money shall be non-refundable to Purchaser,
except in the event of a default hereunder by Seller or the failure of a
condition precedent contained in this Agreement to Purchaser's obligation to
close the transaction contemplated by this Agreement. Furthermore, at any time
prior to the Closing, Purchaser shall have the right to update any and all of
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the physical, environmental, engineering and feasibility reports, inspections,
examinations, test and studies that Purchaser performed pursuant to Paragraph 4
above (the "Due Diligence Update"). If any of the Due Diligence Updates raise or
disclose any matters or conditions that were not disclosed by Purchaser's
initial physical, environmental, engineering and feasibility reports,
inspections, examinations, tests and studies performed pursuant to Paragraph 4
above and any such new matters or conditions unacceptable to Purchaser in its
sole and absolute discretion, then Purchaser shall have the right (without
waiving any rights under this Agreement for a Seller default) at any time prior
to Closing to terminate this Agreement in which event the Xxxxxxx Money (and all
interest earned thereon) shall be immediately returned to Purchaser and neither
Seller nor Purchaser shall have any further rights or obligations under this
Agreement. Within five (5) days of termination of this Agreement by Purchaser
pursuant to this Xxxxxxxxx 0, Xxxxxxxxx shall deliver to Seller the Existing Due
Diligence Items, but such delivery shall not be a condition to the return of the
Xxxxxxx Money to Purchaser.
Additionally, not less than fifteen (15) days prior to the Closing
Date, Purchaser shall notify Seller as to any Contracts that Purchaser elects
not to assume at Closing. Seller agrees that, except for the general
contractor's and architect's contracts, all such Contracts shall be terminated,
at Seller's cost and expense, on and as of the Closing Date. Seller shall
terminate, as of the Closing Date and at its sole cost and expense, the
employment of any employees of the Property and any and all property management
and leasing agreements relating to the Property. Seller shall be responsible for
the payment of any and all amounts due and payable under any such property
management and/or leasing agreements relating to the Property, as well as any
leasing commissions due any brokers in connection with the Lease.
8. APPRAISAL/ENVIRONMENTAL REPORTS. Not less than ten (10) business
days prior to the Closing Date, Seller shall cause the aforementioned existing
environmental reports and assessments relating to the Property to be updated and
re-certified to Purchaser, Purchaser's lender, if any, and any other parties
designated by Purchaser in writing to Seller prior to ten (10) days before said
reports are due to Purchaser. Seller shall be responsible to pay for the costs
of such update and re-certification up to a total of $1,000. Purchaser shall be
responsible to pay for the costs of such updates and re-certifications of such
existing environmental reports and assessments in excess of $1,000. Not less
than ten (10) business days prior to the Closing Date, Seller shall have new
appraisals of the Property prepared and issued to and in the name of Purchaser,
Purchaser's lender, if any, and any other parties designated by Purchaser in
writing to Seller prior to ten (10) days before said items are due to the
Purchaser. Seller shall be responsible to pay for the costs of such appraisals
up to a total of $1,000. Purchaser shall be responsible to pay for the costs of
such appraisals in excess of $1,000. Notwithstanding the foregoing, if the cost
of the aforementioned environmental reports and appraisals is expected to exceed
the amount that Seller is obligated to pay, then, prior to ordering the same,
Seller shall obtain Purchaser's prior approval of the cost thereof.
9. DELIVERIES AT CLOSING.
(a) At the time of closing hereunder, Seller shall deliver the
following original documents for the Property:
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(i) Special warranty deed conveying title to the
Property to Purchaser (or its nominee, assignee or the entities
designated by Purchaser as taking title to the Property) in the form
attached hereto as EXHIBIT "B" (modified as necessary to conform to
local law) free and clear of all liens, encumbrances and exceptions
whatsoever, save and except only for the Permitted Exceptions.
(ii) Duly executed Quit-Claim Xxxx of Sale in the form
attached as EXHIBIT "C".
(iii) Appropriate "Seller's Affidavit" or other acceptable
evidence addressed to the Title Insurer attesting to the absence of
liens, lien rights, rights of parties in possession (other than
Tenant) and other encumbrances arising under Seller (other than the
Permitted Exceptions) so as to enable Title Insurer to delete the
"standard" exceptions for such matters from Purchaser's owner's
policy of title insurance for the Property and otherwise insure any
"gap" period occurring between the closing and the recordation of
the closing documents.
(iv) Duly executed Assignment and Assumption of Agreement
for each the Lease (the "Lease Assignment") in the form attached as
EXHIBIT "D", together with all of the documents assigned thereby.
(v) An estoppel certificate relating to the Lease from
Tenant in the form and substance attached hereto as EXHIBIT "I" and
made a part hereof. The estoppel certificate shall be certified to
Purchaser and its nominee, assignee and/or the entities designated
by Purchaser as taking title to the Property and Purchaser's lender
(and their respective successors and assigns), if any.
(vi) Duly executed Assignment of Licenses, Permits,
Plans, Contracts, Warranties, and Intangible Property (the "License
Assignment") in the form attached as EXHIBIT "E", together with the
consent of the issuer thereof to such assignment if required by the
terms of the applicable warranty; in the event that the issuer of
any warranty charges a fee in connection with the assignment or
requires that any work be performed in connection with the
assignment, then such fee and the cost of work shall be paid by the
Seller at the Closing. Purchaser shall advise Seller in writing by
the end of the Inspection Period as to whether or not Purchaser
accepts Exhibits B and C of the License Assignment and Seller shall
then advise Purchaser in writing whether or not Seller will revise
said exhibits. If Purchaser gives no such notice by the end of the
Inspection Period, then Purchaser shall be deemed to have approved
said exhibits.
(vii) Notice addressed to Tenant, signed by Seller,
providing notice of the sale of the Property and directing Tenant to
send future rent and notices to Purchaser.
(viii) Originals of the Lease and any guaranty agreements
thereto and any originals of the Contracts and Licenses (to the
extent the same are in Seller's possession).
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(ix) To the extent in the possession of Seller, a letter
from the applicable zoning authority for the Property confirming
that the Property is zoned for its current use. Purchaser may obtain
any current letters that it desires, provided, however, Seller
agrees to reasonably cooperate with Purchaser in obtaining any of
the aforementioned current zoning letters.
(x) Estoppel Certificates, if any, from all parties to
any operating agreements and/or reciprocal easement agreements to
the extent such parties are obligated to provide the same under the
said agreements confirming the terms of the operating agreements
and/or reciprocal easement agreements and confirming that there
exist no defaults under the such documents and no event or
circumstance has occurred that, with the giving of notice or passage
of time, could result in a default under such documents, which
estoppel certificates shall be certified to Purchaser and its
nominee, assignee and/or the entities designated by Purchaser as
taking title to the Property and Purchaser's lender (and their
respective successors and assigns), if any. Purchaser shall give
Seller in writing by the end of the Inspection Period the operating
agreements and/or reciprocal easement agreements for which Purchaser
wants estoppel certificates or Seller shall have no obligation to
furnish Purchaser any estoppel certificates.
(xi) Unqualified, final Certificates of Occupancy (or
temporary certificates of occupancy acceptable to Purchaser) for the
Property.
(xii) An appropriate FIRPTA Affidavit or Certificate by
Seller, evidencing that Seller is not a foreign person or entity
under Section 1445(f)(3) of the Internal Revenue Code, as amended.
(xiii) Certificate of insurance from Tenant, in the form
and coverages as provided in the Lease, naming Purchaser, the entity
taking title to the applicable Property and Purchaser's lender as
additional insureds or loss payees, as applicable provided Purchaser
has given Seller the names of the applicable entities to be insured
at least ten (10) days prior to the Closing Date.
(xiv) A duly executed counterpart of the closing
statement.
(xv) A certificate of Seller verifying that the
representations and warranties made in this Agreement are true and
correct at the time of Closing hereunder.
(xvi) To the extent in Seller's possession, all security
cards and passes and keys to the Property and improvements located
thereon.
(xvii) To the extent not delivered to Purchaser prior to
the Closing Date, originals (or if Seller does not have the
original, copies certified by Seller as being true, complete and
correct copies of what Seller possesses in its files) of all (a)
as-built plans and specifications, surveys, site plans, engineering
plans and studies, utility plans and development plans related to
the Property, (ii) all guaranties and warranties relating to the
construction of the improvements located upon the Property
(including,
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STORE NO. 2630
without limitation, construction warranties provided by the general
contractor and any subcontractors of any tier, and all of Seller's
rights, if any, in any roof warranty relating to the Leased Premises
provided to the Tenant), and (iii) all governmental licenses and
permits relating to the Property.
(xviii) Three (3) original assignments of Seller's right,
title and interest (including any and all warranties thereunder) in,
to and under the construction contract between Seller and its
general contractor (including, any amendments thereto or change
orders in respect thereof, the "Construction Contracts"), in the
form attached hereto as EXHIBIT "G", subject to approval by the
general contractor, and made a part hereof, duly executed by Seller,
which assignment will provide for Seller to remain responsible to
pay any and all amounts due and payable, or that become due and
payable, under the Construction Contracts.
(xix) Three (3) original assignments of Seller's right,
title and interest in, to and under any and all architect's
agreements (including, any amendments thereto or change orders in
respect thereof, the "Architect's Agreement"), in the form attached
hereto as EXHIBIT "H", subject to approval by the architect, and
made a part hereof, duly executed by Seller, which assignment will
provide for Seller to remain responsible to pay any and all amounts
due and payable, or that become due and payable, under the
Architect's Agreement.
(xx) An estoppel letter from the general contractor,
pursuant to which the general contractor (a) confirms that there
exist no defaults under the Construction Contracts and that no event
or circumstance has occurred that, with the giving of notice or
passage of time, could result in a default under the Construction
Contracts, (b) confirms what amount has been paid as of the Closing
Date together with any remaining amount to be paid the general
contractor, and (c) agrees to continue performance on and after the
Closing. In the event that the Construction Contract has not been
paid in full by Seller by the Closing Date, then at Closing an
amount equal to the unpaid portion of the Construction Contract
shall be escrowed from Seller's proceeds with the Escrow Agent until
such time as the general contractor is paid in full and the general
contractor and all material subcontractors have executed
unconditional releases of lien for the Property and/or released any
liens filed against the Property), and Seller shall defend, hold
harmless and indemnify Purchaser and each Acquiring Entity from and
against any and all claims, costs, expenses (including, but not
limited to, reasonable attorneys fees and litigation costs),
damages, judgments, demands, penalties, fines, interest and
liabilities, and for any and all loss of life, injury to persons or
damage to property due to or resulting from, directly or indirectly,
Seller's non-payment of the Construction Contracts.
(xxi) An estoppel letter from the architect under the
Architect's Agreement pursuant to which the architect (a) confirms
that there exist no defaults under the Architect's Agreement and
that no event or circumstance has occurred that with the giving of
notice or passage of time, could result in a default under the
Architect's Agreement, (b) confirms that any and all amounts due and
payable to such parties as
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STORE NO. 2630
of the Closing Date have been paid, and (c) agrees to continue
performance on and after the Closing.
(xxii) Evidence that Seller has terminated (and paid any
termination fees associated therewith) any and all Contracts that
Purchaser elected not to assume pursuant to Section 7 above (except
that Purchaser shall not have the right to terminate either the
general contractor or architect's contracts).
(xxiii) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
(b) At the time of closing hereunder, Purchaser shall deliver
the following original documents for each Property:
(i) Duly executed Lease Assignment.
(ii) A duly executed counterpart of the closing
statement.
(iii) Notice addressed to Tenant, signed by Purchaser,
providing notice of the sale of the Property and directing Tenant to
send future rent and notices to Purchaser.
(iv) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
10. CLOSING. At least thirty (30) days prior to the earlier to occur of
(a) Seller's estimate of the date of Completion of the Leased Premises, and (b)
December 31, 2003, Seller shall deliver to Purchaser notice stating the
estimated Completion date (the actual date upon which Completion is achieved to
be referred to as the "Completion Date"). The Purchase Price and the aforesaid
executed closing documents shall be delivered, and the purchase and sale
transaction contemplated in this Agreement shall otherwise be consummated
subject to the other terms and provisions of, and satisfaction of all conditions
to Closing contained in, this Agreement (the "Closing"), on a date which is the
earlier to occur of (i) ten (10) days after the Completion Date and (ii)
December 31, 2003 (the "Closing Date"). The Closing shall occur by mail to the
offices of Escrow Agent. Notwithstanding anything contained in this Agreement to
the contrary, Purchaser's obligation to close hereunder is conditioned upon all
of the following:
(a) All Rent shall be current under the Lease with no
delinquencies as to any Rent due and payable on or before the Closing Date.
(b) All representations and warranties of Seller contained in
this Agreement being true and correct at and as of the Closing Date, and
all obligations of Seller to have been performed on or before the Closing
Date having been timely and duly performed (including, without limitation,
delivery of all of the closing documents referenced in Paragraph 9 above).
(c) The issuance of a final ALTA title insurance policy (or a
marked commitment therefor, with the original title insurance policy to
follow) pursuant to and in accordance with
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the updated Title Commitment (in form and substance approved by Purchaser,
including the issuance of all endorsements thereto and the removal of any
of Purchaser objections pursuant to Paragraphs 5 and/or 6 above) insuring
fee simple title to the Property in Purchaser (or the entity that takes
title to the applicable Property) as of the Closing Date in the amount of
the Purchase Price, subject only to the Permitted Exceptions, and
containing no exception for mechanics' liens (unless appropriately bonded
by Seller) and containing such affirmative insurance as may be available in
the state in which the Property is located insuring that the Purchaser's
fee title shall not be subject to any mechanics' liens.
(d) The Leased Premises shall have been Completed (as defined in
Paragraph 15 below) as required in Paragraph 15 below.
(e) Purchaser's receipt of any and all estoppel certificates
required to be delivered by Seller, all in form and substance reasonably
acceptable to Purchaser.
If any conditions precedent contained in this Agreement to
Purchaser's obligation to close the transaction contemplated by this Agreement
shall not be satisfied (or, in Purchaser's sole and absolute discretion, waived)
by the Closing Date, then Purchaser, by notice to Seller on or before the
Closing Date, may elect either to terminate this Agreement, without waiver or
release of any of its remedies for a Seller default, or to seek specific
performance of this Agreement, unless with respect only to Purchaser's right to
seek specific performance of this Agreement, the condition is not satisfied due
to matters out of Seller's control such as a third party refusing to sign a
document required under this Agreement. If this Agreement is terminated as
provided in the immediately preceding grammatical sentence, then the Xxxxxxx
Money and any interest thereon shall forthwith be returned to Purchaser, and all
other funds and documents theretofore delivered hereunder or deposited in escrow
by either party shall be forthwith returned to such party.
11. CLOSING COSTS. Purchaser shall pay for (i) any charges for any
extended coverage and/or the Special Endorsements; (ii) the costs of Purchaser's
inspections of the Property; (iii) the cost of recording said special warranty
deed and other instruments of conveyance; (iv) one-half of any escrow fee, not
to exceed TWO HUNDRED FIFTY AND 00/100 DOLLARS ($250.00); (v) the costs of the
appraisals and environmental reports relating to the Property to the extent
provided in Section 8 above; (vi) the costs of the As-Built Survey relating to
the Property to the extent provided in Section 6 above; and (vi) any other costs
customarily paid by purchasers of similar property. Seller shall pay for (i)
documentary stamp taxes or any other state, county and/or local transfer taxes
required to be paid with respect to the special warranty deeds, if any; (ii) the
cost of recording any corrective title instruments; (iii) the premiums for the
owner's title insurance policy to be issued pursuant to the updated Title
Commitment, excluding any charges for any extended coverage and/or the Special
Endorsements to the title insurance policies which shall be paid by Purchaser;
(iv) costs to remove, or costs of endorsements providing insurance coverage over
any Title/Survey Objection or New Title/Survey Exception; (v) the costs of the
appraisals, and environmental reports relating to the Property to the extent
provided in Section 8 above; (vi) the costs of the As-Built Survey relating to
the Property to the extent provided in Section 6 above; (vii) the costs of the
Title Commitments (including all updates thereof) and the Survey of the
Property; (viii) one-half of any escrow fee, not to exceed TWO HUNDRED FIFTY AND
00/100 DOLLARS ($250.00); and (ix)any other costs
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STORE NO. 2630
customarily paid by sellers of similar Property. Each of Purchaser and Seller
shall bear its own attorneys' fees.
12. PRORATIONS. The following prorations shall be made between Purchaser
and Seller as of the date of Closing (for the purposes of the following
prorations, Purchaser shall be deemed to be the owner of the Property for the
entire Closing Date):
(a) Seller shall receive a credit, if any, for any ad valorem
taxes, assessments, maintenance costs or other costs and expenses advanced
by Seller, if any (collectively the "Advances"), which (i) are attributable
to the Closing Date and the period subsequent thereto, or (ii) are
reimbursable to Seller by Tenant pursuant to the Lease, but have not been
received by Seller as of the Closing Date. Seller agrees to remit to
Purchaser, within thirty (30) days of receipt of same, all reimbursements
received from Tenant after the Closing Date for all such Advances that are
credited to Seller at Closing.
(b) Purchaser shall receive a credit, if any, for any ad valorem
taxes, assessments, maintenance costs or other costs and expenses, if any,
prepaid by Tenant to Seller (i) that relate to the Closing Date and period
subsequent to the Closing Date, or (ii) are (or may become) owed by Seller
to Tenant pursuant to the Lease, but have not been paid to Tenant as of the
Closing Date.
(c) Purchaser shall receive a credit against the Purchase Price
in an amount equal to the sum of (i) any and all leasing or other
commissions due and payable (or that may become due and payable) in
connection with the Lease, (ii) any and all tenant improvement and other
allowances and concessions due, payable or owed (or that may become due,
payable or owed) under the Lease, and (iii) any and all budgeted capital
expenditures relating to the Property that have not been paid as of the
Closing Date.
(d) All Rent and other amounts payable by the Tenant to the
Landlord under the Lease attributable to the period prior to the Closing
Date shall be the property of Seller, and all Rent and other amounts
payable by the Tenant to the Landlord under the Lease attributable to the
Closing Date and the period subsequent thereto shall be the property of
Purchaser. If Rent due for the month in which the Closing Date occurs has
been paid by Tenant to Seller prior to the Closing Date, then such Rent
shall be the property of Seller and Purchaser shall receive a credit for
all such Rent attributable to the Closing Date and the period subsequent
thereto. If Rent due for the month in which the Closing Date occurs has not
been paid by Tenant to Seller prior to the Closing Date, then such Rent
shall be the property of Purchaser and Seller shall receive a credit for
all such Rent attributable to the period prior to the Closing Date.
Purchaser and Seller each agree to remit to the other, within thirty (30)
days after receipt of same, all Rent received by them after the Closing
Date which is defined as the property of the other party pursuant to the
terms of this subparagraph, which obligation shall expressly survive
Closing hereunder. Purchaser shall receive a credit against the Purchase
Price in an amount equal to all security deposits, if any, required under
the Lease, provided however, Purchaser shall assume all obligations of the
aforementioned security deposits as required under the Leases.
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(e) As of the Closing, any and all ad valorem taxes and
assessments attributable to the Property (collectively, "Taxes") for
calendar year 2002 and all prior calendar years shall be paid by Seller.
Taxes for calendar year 2003 that remain unpaid as of the Closing shall be
prorated as between Seller and Purchaser as follows: (a) Seller shall be
responsible for the aggregate amount of Taxes (less any portion thereof
payable by the Tenant pursuant to the Lease) levied or assessed against the
Property during, or attributable to the Property for, calendar year 2003,
multiplied by a fraction, the numerator of which shall be the number of
days during calendar year 2003 that Seller owned the Property, and the
denominator of which shall be 365; and (b) Purchaser shall be responsible
for the aggregate amount of Taxes (less any portion thereof payable by the
Tenant pursuant to the Lease) levied or assessed against the Property
during, or attributable to the Property for, calendar year 2003, multiplied
by a fraction, the numerator of which shall be the number of days during
calendar year 2003 that Purchaser owned the Property, and the denominator
of which shall be 365. Any Taxes attributable to calendar year 2003 that
are due and payable as of the Closing Date shall be paid by Seller as of
the Closing Date as part of the proration of Taxes payable by Seller
pursuant to the prior sentence. If the final amount of Taxes for calendar
year 2003 are not known at the Closing, then Seller and Purchaser shall,
in good faith, estimate the amount of same at closing, and shall re-prorate
such Taxes within thirty (30) days of the date that the final amount shall
be determined (i.e., issuance of the final Tax xxxx for calendar year
2003).
(f) if and to the extent applicable, Purchaser shall receive a
credit against the Purchase Price in amounts equal to the Lease Rent Credit
and/or the Late Delivery Credit (as such terms are defined in Section 15(3)
below).
(g) Any other items of revenue, income and expense not prorated
pursuant to any of clauses (a) through (e) above shall be prorated as of
the Closing Date such that (i) Seller shall receive the benefit of all
revenue and income, and shall be obligated for the payment of all expenses,
attributable to the period of time prior to the Closing Date, and (ii)
Purchaser shall receive the benefit of all revenue and income, and shall be
obligated for the payment of all expenses, attributable to the Closing Date
and the period of time after the Closing Date.
(h) If the actual amount of any item to be prorated/credited
pursuant to this Section 12 cannot be determined as of the Closing Date,
then Seller and Purchaser shall, in good faith, estimate the amount of such
item, and shall re-prorate such item within thirty (30) days after the date
that the actual amount of such item is determined.
13. COMMISSIONS. Seller hereby represents and warrants to Purchaser that
Seller has not dealt with any broker or finder with respect to the transaction
contemplated hereby. Seller hereby agrees to indemnify Purchaser for any claim
for brokerage commission or finder's fee asserted by any person, firm or
corporation claiming to have been engaged by Seller. Purchaser hereby represents
and warrants to Seller that Purchaser has not dealt with any broker or finder in
respect to the transaction contemplated hereby, and Purchaser hereby agrees to
indemnify Seller for any claim for brokerage commission or finder's fee asserted
by any person, firm or corporation claiming to have been engaged by Purchaser.
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14. PROPERTY SOLD "AS-IS". EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, THE PROPERTY SHALL BE SOLD AND CONVEYED BY SELLER AND ACCEPTED BY
PURCHASER IN "AS IS" CONDITION WITHOUT ANY WARRANTY OR REPRESENTATION WHATSOEVER
ON THE PART OF SELLER, EXPRESS OR IMPLIED, AS TO THEIR CONDITION,
CLASSIFICATION, PAST OR PRESENT USE, OR MERCHANTABILITY, FITNESS OR SUITABILITY
FOR ANY PARTICULAR PURPOSE, USE, DESIGN, CONSTRUCTION OR DEVELOPMENT, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OR REPRESENTATION AS TO SURFACE OR SUBSURFACE
CONDITION, ZONING, OR THE SUFFICIENCY, ACCESSIBILITY AND CAPACITY OF UTILITIES
FOR PURCHASER'S INTENDED USE OF THE PROPERTY, IT BEING AGREED THAT, EXCEPT FOR
SELLER'S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ALL SUCH
RISKS ARE TO BE BORNE BY PURCHASER AND THAT PURCHASER IS RELYING SOLELY ON ITS
OWN INSPECTION AND INVESTIGATION OF THE PROPERTY WITH RESPECT THERETO AND NOT ON
ANY STATEMENT, REPRESENTATION OR WARRANTY MADE BY SELLER OR ANYONE ACTING OR
CLAIMING TO ACT ON BEHALF OF SELLER.
15. REPRESENTATIONS AND WARRANTIES: COVENANTS. Each party warrants and
represents the following to the other that:
(a) It shall perform its duties and obligations under this
Agreement in accordance with the terms and conditions of this Agreement.
(b) This Agreement constitutes the valid and binding obligation
of each party, enforceable against each party in accordance with the
Agreement's terms. All actions required to be taken by each party to
authorize it to enter into and carry out this Agreement have been, or prior
to the date of closing hereunder shall be, duly and validly taken.
Seller further represents and warrants to Purchaser that:
(i) to the best of Seller's knowledge that there are no
pending, existing, or threatened: (a) condemnation proceedings
against the Property or any portions thereof, (b) widening, change
of grade or limitation on use of streets abutting the Property, (c)
special tax or assessment to be levied against the Property, (d)
change in the Zoning classification of the Property, or (e) change
in the tax assessment of the Property.
(ii) to the best of Seller's knowledge, the Property is
leased as Eckerd Drug Stores for twenty (20) year terms at the
annualized base rental payments, subject to adjustment as provided
in the Lease as a triple net lease covering the building and all of
the real property and parking areas located on the Property,
together with the reciprocal easements and REA/OEA agreements (if
any) affecting the Property, for the entire terms and option periods
thereof.
(iii) to the best of Seller's knowledge and subject to
anything contained in the Existing Due Diligence Documents, the
Property and the Leased Premises are free of violations, and the
interior and exterior structures shall be, when Completed, free of
leaks, structural defects and mold, and that the Property are and at
Closing shall be in full compliance with federal, state, city and
county ordinances, environmental laws,
16
STORE NO. 2630
and that no third party has an option or right of first refusal to
purchase the Property except as stated in the Leases.
(iv) neither Seller nor, to the best of Seller's
knowledge, Tenant (or any guarantor thereof) are in default on the
Lease nor is there any threatened or pending litigation against the
Seller or the Property. In addition, the Lease is the only occupancy
or lease agreement in effect for or on the Property.
(v) Seller owns the Property and is the landlord under
the Lease.
(vi) To the best of Seller's knowledge, the Lease is in
good standing and full force and effect, and no rights or interests
of the landlord thereunder have been waived or released. Seller has
no knowledge of any circumstances affecting the financial condition
of any tenant of the Property which would prevent such tenant from
fulfilling and complying with the obligations under its Lease. To
the best of Seller's knowledge, except for Seller and Tenant
pursuant to the Lease, there are no persons in possession or
occupancy of the Property or any part thereof, nor are there any
persons who have possessory rights in respect to the Property or any
part thereof. Except as provided in the Existing Due Diligence Items
provided to Purchaser and to the best knowledge of Seller: (a) there
are no leasing or other commissions due and payable in connection
with the Lease; (b) there are no tenant improvement or other
allowances or concessions due, payable or owed, or that may become
due, payable or owing, to Tenant under the Lease; and (c) except for
construction of the Leased Premises in accordance with the terms of
the Lease, there are no budgeted capital improvements or other
capital expenditures that Seller anticipates making or incurring
with respect to the Property.
(vii) except to the extent disclosed on EXHIBIT "J"
attached hereto and made a part hereof, to the best of Seller's
knowledge, prior to and during Seller's ownership of the Property,
(i) no hazardous substances, materials or waste which is regulated
by any governmental authority have been located on the Property or
have been released into the environment, or discharged, placed or
disposed of at, on or under the Property; (ii) no underground
storage tanks have been located on the Property; (iii) the Property
has never been used as a dump for waste material; and (iv) the
Property and its prior uses comply with and at all times have
complied with, any applicable governmental law, regulation or
requirement relating to environmental and occupational health and
safety matters. No hazardous substances, materials or waste shall be
incorporated into the construction of the Improvements.
(viii) Construction of the Leased Premises commenced on May
15, 2003, and is scheduled to be completed on September 15, 2003.
(ix) Seller has complied with all terms and provisions of
the Lease to have been complied with as of the date this
representation is made, and Seller has satisfied any and all
conditions and requirements of the Lease to have been satisfied as
of the date this representation is made, including, without
limitation, the terms, provisions,
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STORE NO. 2630
conditions and requirements of Sections 9.8.1.1, 9.8.1.2., 9.8.1.3
and 9.8.1.4 of the Lease.
(x) To the best of Seller's knowledge, the costs of
development and construction of the Leased Premises is on budget in
accordance with the Build to Suit Development Budget attached to the
Lease.
(xi) Seller has procured and obtained any and all
required permits, variances, approvals and other Licenses relating
to the development and construction of the Leased Premises in
accordance with the Lease. Each of the Licenses is in full force and
effect and in good standing, and neither Seller nor any agent or
employee of Seller has received notice of any intention on the part
of the issuing authority to cancel, suspend or modify any of the
Licenses or to take any action or institute any proceedings to
effect such a cancellation, suspension or modification.
(xii) There have been no modifications, alterations,
deviations or change orders to the Guide Plans (as defined in the
Lease) for the Property, except: NONE: and the construction of the
Improvements is proceeding in accordance and compliance with the
Guide Plans.
(xiii) There are no defaults under any of the Construction
Contracts or the Architect's Agreement, and all of the Construction
Contracts and Architect's Agreement are in good standing and in full
force and effect.
(xiv) Seller does not own any real property located within
one thousand feet (1000') of any exterior boundary of the Property.
(xv) Seller has no management, leasing, service,
maintenance, operating, repair, consulting, professional service,
advertising, promotion, public relations, construction, development,
architect's, contractors, sub-contractors, vendors, suppliers,
materialmen and other contracts and commitments (excluding the Lease
and the warranty obligations under the general contractor's and
architect's agreements for the Improvements) in any way relating to
the Property or any part thereof (including, without limitation, the
design, development and construction of the Improvements [as defined
in Paragraph 15] which shall survive the Closing (again, however,
subject to the Lease and respective warranty obligations pursuant to
the general contractor's and architect's agreements for the
Improvements); no equipment leases, rights and options, including
rights to renew or extend the term or purchase the leased equipment,
relating to equipment or property located in or upon the Property or
used in connection therewith which shall survive the Closing;
(xvi) Seller will receive no warranty concerning the
construction of the Improvements other than from the general
contractor. In addition, Seller does not have any plans, guaranties
or roof warranties, relating to the Property or the construction of
the Improvements other than as furnished or assigned to Purchaser at
the Closing.
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(xvii) To Seller's knowledge the Property is not encumbered
by any property management agreement and Seller has not engaged for
or placed at the Property any property manager, employees or leasing
agent or broker.
Each representation and warranty of each party contained in
this Agreement shall be true and accurate as of the date hereof, shall be
deemed to have been made again at and as of Closing and shall then be true
and accurate in all material respects, and shall survive the Closing,
provided however, such representations and warranties shall not survive
beyond one (1) year after the Closing Date.
Seller hereby covenants that:
(1) Seller, at Seller's sole cost and expense, shall keep and
perform (or cause to be performed) all obligations of the landlord under
the Lease, and all obligations of the Property owner or its agents under
the Contracts (including, without limitation, the Construction Contracts
and the Architect's Agreement) and Licenses, to and including the Closing
Date or termination of this Agreement and Seller shall furnish Buyer with
copies of documentation showing Seller's complying with all obligations as
landlord under the Lease. On the Closing Date, Seller shall tender
possession of the Property to Purchaser in the same condition the Property
was in when last inspected by Purchaser, except for ordinary wear and tear,
casualty loss and condemnation, and except for construction of the Leased
Premises in accordance and compliance with the terms and provisions of the
Lease. Not less than ten (10) days prior to the Closing Date, Seller shall
deliver to Purchaser, for Purchaser's review and approval, executed copies
of all estoppel certificates to be delivered at Closing pursuant to
Paragraph 9 hereof. At Closing, Seller shall, at its sole cost and expense,
terminate any property management agreement, leasing agreement and/or
insurance policies maintained by Seller related to the Property.
(2) Seller shall notify Purchaser promptly if Seller becomes
aware of any transaction or occurrence prior to the Closing Date which
would make any of the representations or warranties of Seller contained in
this Agreement not true and correct in any respect. Additionally, Seller
promptly shall deliver to Purchaser any notices and written communications
sent to or received from Tenant.
(3) Pursuant to the terms of the Lease, Seller is obligated to
construct upon the Property certain buildings and other improvements
(collectively, the "Improvements") in accordance and compliance with the
Guide Plans and the Lease. Seller covenants and agrees to construct the
Improvements in accordance and compliance with the Guide Plans, the Lease
and all applicable licenses, laws, ordinances, rules and regulations
(including, without limitation, the Americans with Disabilities Act)
(collectively, "Legal Requirements"). Seller shall construct the
Improvements at its sole cost and expense, and shall be obligated to pay
all impact fees, tap fees, transportation impact fees, water and sewer
reservation fees and any other sums which may be payable to any
governmental agency in connection with construction and initial occupancy
of the Property and/or the Leased Premises, including, without limitation,
any of such fees which are payable in connection with any tenant
improvements to be installed in the Property. In addition, Seller agrees to
cause all water,
19
STORE NO. 2630
sewer, gas, electric, telephone, drainage and other utilities and exterior
facilities required by the Lease (which shall include, without limitation,
landlord's obligations under Sections 10.1 and 11.2 of the Lease) and/or by
law for the normal and proper operation of the Property to be constructed
and installed to the Improvements, connected with valid permits, and in
good repair, condition and working order at the Closing. Seller agrees that
it shall obtain a certificate of occupancy for each building which
constitutes a part of the Improvements, together with certificates of
occupancy for all tenant spaces. Seller covenants that Completion shall be
achieved no later than December 31, 2003 (the "Outside Completion Date").
Seller agrees to deliver to Purchaser from time to time, but not less
frequently than once per calendar month, written progress reports in
respect of the progress of Completion of the Improvements, and shall
deliver to Purchaser any and all progress reports or similar documents
received from any contractor describing its progress with the construction
of the Improvements. Seller shall notify Purchaser in writing, and provide
Purchaser with a revised construction schedule, at any time that any delays
in construction will delay the expected final Completion Date beyond the
Outside Completion Date. At or prior to Closing Seller will deliver to
Purchaser a copy of the roof warranty for the Improvements. It shall be a
condition precedent to Purchaser's obligations to consummate the purchase
of the Property that the Seller shall have satisfied all of its obligations
under this subsection (3) required to have been performed on or before the
Closing Date. For the purposes of this Agreement, the terms "Complete",
"Completed" and "Completion" shall mean that all of the following
conditions shall have been satisfied: (a) the Leased Premises and
Improvements are fully complete as required, described, defined and
provided in the Lease, including, without limitation, Section 9.4 of the
Lease, (b) the Tenant has accepted the Leased Premises, and is open and
operating for business in the Leased Premises, (c)final, unconditional
certificates of occupancy for the base building and the tenant space have
been issued by all applicable governmental entities, (d) Seller's architect
has issued to Purchaser a certificate pursuant a certificate pursuant to
which such architect certifies that the Leased Premises have been completed
in accordance and compliance with all Legal Requirements, the Guide Plans
and the Lease, and (e) all conditions to completion set forth in Section
9.4 of the Lease have been satisfied. Sub-sections (a) and (e) of this
paragraph shall be satisfied upon Seller furnishing Purchaser an estoppel
certificate from Tenant in the form shown in EXHIBIT "I" together with the
delivery by Seller to Purchaser of the respective documents listed in
Section 9.4 of the Lease. If, as of the Closing Date, Tenant shall not be
paying full Rent under and pursuant to the terms of the Lease, then, at
Closing, Purchaser shall receive a credit against the Purchase Price in an
amount equal to the (i) all Rent and other amounts that would be due and
payable under and pursuant to the Lease (as if the Rent Commencement Date
was the Closing Date for the period of time commencing as of the Closing
Date and ending on the date that Tenant is expected to commence paying full
Rent under the Lease, and (ii) the amount of Taxes attributable to the
period of time commencing as of the Closing Date and ending on the date
that Tenant is expected to commence paying full Rent under the Lease (the
"Lease Rent Credit"). Additionally, if Tenant shall be entitled to any
penalties, abatements, credits, rent reductions and other concessions
(including, without limitation, any rent credits to which Tenant is
entitled pursuant to Section 3.1 of the Lease) under the Lease on account
of the failure to deliver the applicable Leased Premises to Tenant within
the time period required by the applicable Lease, then at Closing,
Purchaser shall receive a credit against the Purchase
20
STORE NO. 2630
Price in an amount equal to the aggregate of all such penalties,
abatements, credits, rent reductions and other concessions (the "Late
Delivery Credit"). The Lease Rent Credit and the Late Delivery Credit shall
be subject to recalculation within thirty (30) days after Tenant commences
the payment of full Rent under the Lease. If, once Tenant commences the
payment of full Rent under the Lease, Seller and Purchaser determine that
the actual amount of the Lease Rent Credit and/or the Late Delivery Credit
differs from the amount credited to Purchaser at Closing, then, as the case
may be, Seller shall pay to Purchaser any additional Lease Rent Credit or
Late Delivery Credit, or Purchaser shall refund to Seller any excess Lease
Rent Credit or Late Delivery Credit received by Purchaser at Closing. In
connection with the foregoing, Seller agrees to (i) comply with and satisfy
Section 9.8.2 through and including 9.8.5 of the Lease and Section 9.8.9 of
the Lease, (ii) provide notice to Purchaser of any Rent adjustment pursuant
to Sections 9.8.6 and 9.8.7 of the Lease and (iii) otherwise refund to the
Tenant any rents collected by Seller which are required to be refunded
pursuant to Section 9.8.8 of the Lease. These covenants with respect to the
Lease shall survive the Closing.
(4) For a time period of one (1) year after the Lease
Commencement Date, Seller shall be and remain responsible for (i)
completing any warranty work or curing any defaults as required by the
landlord under the Lease, (ii) repairing any defects in labor or
workmanship regarding the initial construction of the improvements, and
(iii) performing any and all other obligations of the landlord under the
Lease in respect of the development and construction of the Improvements.
In the event that the Seller fails to comply with the foregoing
obligations, Purchaser may, after giving thirty (30) days written notice to
Seller and Seller having failed to commence and diligently pursue to
completion curative action within said time period, proceed to remedy such
default on its own and shall have recourse against Seller for any expenses
incurred thereby. Neither payment nor acceptance of the Purchase Price nor
any provision in this Agreement will be deemed to constitute a waiver by
Purchaser of Seller's responsibility under this Section 15(4). This Section
15(4), and all provisions contained herein, shall survive the Closing. The
obligations of the Seller pursuant to this Section 15(4) shall continue
beyond the one-year period specified herein as to warranty work or the
curing of any defaults required by the landlord pursuant to the Lease if
such defect or default is discovered during the one-year warranty period
and is not cured by the Seller within that one year warranty period. In
other words, defects or defaults which arise or exist prior to the date of
expiration of the one-year warranty period must be cured and corrected by
the Seller even though the curing or corrective action may not be commenced
or completed until after the date of expiration of the one-year warranty
period. Seller shall and hereby agrees to indemnify and hold harmless
Purchaser for any and all liabilities, damages, losses, or any claim
associated with or arising out of Seller's or the general contractor's work
to complete the Improvements, including all warranty work and access by
Seller or the general contractor (or their respective employees or
subcontractors), which inflicts or causes damage to the Property or injury
or death to any person(s). In addition to the foregoing, in connection with
any warranty work for which Seller or the general contractor are
responsible: (i) Seller shall furnish to Purchaser evidence of commercial
general liability coverage for the applicable contractors reasonably
acceptable to Purchaser and (ii) will use all diligence and reasonable
efforts to minimize any interference with Tenant's occupancy.
21
STORE NO. 2630
(5) From the date of this Agreement to the Closing Date or
earlier termination of this Agreement, if the Property becomes operational,
Seller shall manage and operate the same in a manner consistent with
management standards and business practice for comparable Property in the
Norman/Edmond, Oklahoma area. Notwithstanding the foregoing, without the
prior written consent of Purchaser, Seller shall not do, suffer or permit,
or agree to do, any of the following:
(A) enter into any transaction in respect to or
affecting the Property out of the ordinary course of business:
(B) sell, encumber or grant any interest in the Property
or any part thereof in any form or manner whatsoever, or otherwise
perform or permit any act which will diminish or otherwise affect
Purchaser's interest under this Agreement or in or to the Property
or which will prevent Seller's full performance of its obligation
hereunder; or
(C) enter into, amend, waive any rights under, terminate
or extend any Contract (including, without limitation, the
Construction Contracts and the Architect's Agreement) or any of the
Leases.
16. DAMAGE AND CONDEMNATION. Seller shall notify Purchaser upon the
occurrence of any damage, destruction, taking or threat of taking affecting any
of the Property. In the event of any material damage to or destruction of a
Property, or any portions thereof, or in the event of any material takings or
threats of taking of any Property, or any portions thereof, by exercise of the
power of eminent domain, Purchaser may elect to: (i) terminate this Agreement by
giving notice thereof to Seller within ten (10) days of receipt of notice from
Seller, whereupon this Agreement shall become null and void and the parties
shall be relieved of and released from any and all further rights, duties,
obligations and liabilities hereunder, except for those obligations which
survive the termination of this Agreement, or (ii) consummate the purchase of
all of the Property but receive a credit on the Purchase Price in an amount
reasonably satisfactory to both parties reflecting the loss in value of the
Property subject to the said damage, destruction, or condemnation whereupon, at
Closing, Seller shall assign any rights to any insurance proceeds or
condemnations awards, subject to the rights of Tenant and obligations of
Landlord under the Lease. Seller shall provide Purchaser with all information
received by Seller regarding any such damage, destruction, taking or threat of
taking which is reasonably necessary or useful to Purchaser in making the
election between such alternative. For the purposes of this paragraph,
"material" shall mean any damage, destruction or taking (i) which would allow
Tenant to terminate the Leases or xxxxx, or reduce the amount of, the rents due
under the Leases, or (ii) which would cause damage to the Property or Property
in excess of ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($150,000.00), or
(iii) which would unreasonably interfere with the access provided to the
Property, or (iv) cause a delay in the Completion of the Improvements beyond
December 31, 2003.
17. DEFAULT BY PURCHASER: SELLER'S REMEDIES. If the purchase and sale of
the Property is not consummated in accordance with the terms and conditions of
this Agreement due to default or breach on the part of Purchaser, then Seller,
at its election, may, as its sole remedy hereunder and at law or equity,
terminate this Agreement and obtain as valid liquidated damages the entire
Xxxxxxx
22
STORE NO. 2630
Money, provided however, Seller shall first provide written notice to Purchaser
of said default and afford Purchaser five (5) days to cure such default.
18. DEFAULT BY SELLER; PURCHASER'S REMEDIES. If the purchase and sale of
the Property is not consummated in accordance with the terms and conditions of
this Agreement due to default or breach on the part of Seller, then Purchaser,
at its election, may, provided Purchaser shall first provide written notice to
Seller of said default and afford Seller five (5) days to cure such default, (i)
avail itself of the remedy of specific performance and recover any and all costs
of obtaining specific performance, or (ii) terminate this Agreement and receive
a refund of the Xxxxxxx Money and interest earned thereon and Seller shall
reimburse Purchaser for any and all out-of-pocket costs and expenses incurred by
Purchaser in connection with the transaction contemplated by this Agreement
(including, without limitation, any and all due diligence costs, attorneys' fees
and lender's costs and fees) not to exceed FIFTY THOUSAND AND 00/100 DOLLARS
($50,000.00).
19. INTENTIONALLY DELETED.
20. ASSIGNMENT. Purchaser may assign its interest under this Agreement
in whole or in part. Upon any assignment by Purchaser, Purchaser shall not be
entitled to a release or substitution of the Xxxxxxx Money, but shall seek
reimbursement of same from Purchaser's assignee. Seller shall not assign this
Agreement or any of Seller's interests herein without Purchaser's prior written
consent.
21. NOTICES. Any notice, request, demand, tender or other communication
under this Agreement shall be in writing, and shall be deemed to have been duly
given at the time and on the date when personally delivered, or upon being
delivered to a nationally recognized commercial courier for next day delivery,
to the address for each party set forth below, or upon delivery if deposited in
the United States Mail, Certified Mail, Return Receipt Requested, with all
postage prepaid, to the address for each party set forth below, or by facsimile
with proof of delivery of same. The time period in which a response must be
made, or action taken, by a party receiving such communication shall commence on
the date of actual receipt by such party. Rejection or other refusal to accept
or inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of such communication. By giving prior notice to
all other parties, any party may designate a different address for receiving
notices.
Notices to Seller: Commercial Net Lease Realty Service, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Purchaser: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
23
STORE NO. 2630
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxx, Esquire
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
22. GOVERNING LAW AND BINDING EFFECT. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of
Florida and shall be binding upon, inure to the benefit of, and be enforceable
by the parties hereto as well as their respective heirs, personal
representatives, successors and assigns.
23. TIME OF ESSENCE. Time shall be of the essence in the performance of
the terms and conditions of this Agreement. In the event any time period
specified in this Agreement expires on a Saturday, Sunday or bank holiday on
which national banks in Orlando, Florida are closed for business, then the time
period shall be extended so as to expire on the next business day immediately
succeeding such Saturday, Sunday or bank holiday.
24. CAPTIONS. All captions, headings, paragraph and subparagraph numbers
and letters and other reference numbers or letters are solely for the purpose of
facilitating reference to this Agreement and shall not supplement, limit or
otherwise vary in any respect the text of this Agreement. All references to
particular paragraphs and subparagraphs by number refer to the paragraph or
subparagraph so numbered in this Agreement.
25. ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between Seller and Purchaser with respect to the purchase and
sale of the Property. This Agreement contains the sole and entire understanding
between Seller and Purchaser with respect to the transactions contemplated by
this Agreement, and all promises, inducements, offers, solicitations,
agreements, representations and warranties heretofore made between the parties
are merged into this Agreement. This Agreement shall not be modified or amended
in any respect except by a written agreement executed by or on behalf of the
parties to this Agreement in the same manner as this Agreement is executed.
26. SURVIVAL OF PROVISIONS. The warranties, representations, agreements,
covenants and indemnities of the Seller and Purchaser provided for in this
Agreement shall survive the Closing under or termination of this Agreement only
to the extent expressly provided herein.
27. VALIDITY. In the event any term or provision of this Agreement is
determined by the appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or be construed
or deleted as such authority determines, and the remainder of this Agreement
shall remain in full force and effect.
28. ATTORNEY'S FEES. In the event of any litigation arising out of this
Agreement, the party prevailing (as determined by the court) in obtaining the
relief sought, in addition to all other sums
24
STORE NO. 2630
that it may be entitled to recover, shall be entitled to recover from the other
party its reasonable attorney's fees and expenses incurred as a result of such
litigation.
29. EFFECTIVE DATE. This Agreement shall be effective on the date that
the last of both parties have executed this Agreement, as evidenced by the date
set forth beneath their signatures hereinbelow (the "Effective Date").
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each of the parties and delivered to the other party.
31. NO RECORDATION. Neither this Agreement nor any notice or memorandum
thereof shall be recorded in the public records of any jurisdiction.
32. TAX DEFERRED EXCHANGE. Seller and Purchaser agree to reasonably
cooperate with each other in effecting for the benefit of either party a delayed
like-kind exchange of real property pursuant to Section 1031 of the United
States Internal Revenue Code and similar provisions of applicable state law;
provided that (i) neither party shall be obligated to delay the closing
hereunder and (ii) neither party shall be obligated to execute any note,
contract, deed or other document not otherwise expressly provided for in this
Agreement providing for any personal liability, nor shall either party be
obligated to take title to any property other than the Property as otherwise
contemplated in this Agreement or incur additional expense for the benefit of
the other party. Each party shall indemnify and hold the other harmless against
any liability which arises or is claimed to have arisen on account of any
exchange proceeding which is initiated on behalf of the indemnifying party.
Additionally, the party effectuating any such like-kind exchange shall reimburse
the other party for such other party's actual, out-of-pocket costs and expenses
with respect to such like-kind exchange.
33. CONFIDENTIALITY. Purchaser acknowledges that all Confidential
Information is the confidential, proprietary, and commercial or financial trade
secret information of Seller, and Purchaser agrees to hold all Confidential
Information in strict confidence. Until Closing, all Confidential Information is
and shall remain the sole property of Seller and may be used only for the
purposes set forth in this Agreement. Purchaser agrees that, during the term of
this Agreement not to exceed the Closing Date, Purchaser will not directly or
indirectly disclose, duplicate, reproduce, distribute, disseminate, transmit,
discuss, or otherwise communicate, either verbally or in writing to any person
or entity other than its responsible shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, and other authorized
representatives (collectively "Authorized Persons") any Confidential Information
or documents or information derived from Confidential Information, nor use or
allow the use of any Confidential Information for any purpose other than
evaluating a possible purchase of the Property from Seller, except if required
by court order or by applicable law. Prior to any such disclosure Purchaser
shall inform the Authorized Persons by instruction, agreement, or otherwise that
the Confidential Information is the confidential, proprietary, and trade secret
information of Seller and may not be further disseminated to other persons or
entities without prior written consent, which must be requested from, and may be
given or withheld at the sole discretion of, Seller.
25
STORE NO. 2630
The term "Confidential Information" means any and all documents or
information received directly or indirectly at any time by Purchaser, verbally
or in writing, from Seller relating to Seller or the Property (the terms
"Purchaser" and "Seller" as used by this Paragraph 33 shall include their
respective subsidiaries, affiliates, shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, or other representatives
and their successors and assigns), but does not mean matters which are
previously known to the public.
Notwithstanding the foregoing, to the extent any Leases or
agreements with Tenants impose on Sellers any confidentiality obligations which
are more restrictive than the confidentiality provision contained herein, Seller
shall be bound by the terms and conditions of such confidentiality provisions
and shall not be obligated hereunder to violate or breach such obligations.
34. Acceptance. In the event this Agreement is not signed simultaneously
by both parties, it shall be considered to be an offer made to the other party
("Other Party") by the party first executing it. In such event (once the signed
Agreement is delivered to the Other Party) THIS OFFER SHALL EXPIRE AT 5:00 P.M.
TEN (10) BUSINESS DAYS AFTER BEING DELIVERED TO THE OTHER PARTY BY THE FIRST
PARTY TO SIGN THIS AGREEMENT, unless accepted and signed by the Other Party and
personally delivered to the party making the offer within said ten (10) business
days.
[SIGNATURES ON NEXT PAGE]
26
STORE NO. 2630
The parties have each caused this Real Estate Purchase Contract to be
executed on their behalf as of the date set forth beneath their respective
signatures below.
Signed, sealed and delivered in the "SELLER":
presence of the following witnesses:
COMMERCIAL NET LEASE REALTY
SERVICE, INC., a Maryland corporation
------------------------------------
Signature of Witness
By:
------------------------------------ ------------------------------------
Printed Name of Witness Printed Name:
--------------------------
Title:
---------------------------------
Date:
------------------------------------ ---------------------------------
Signature of Witness
------------------------------------
Printed Name of Witness
Signed, sealed and delivered in the "PURCHASER":
presence of the following witnesses:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Signature of Witness
By:/s/ G. Xxxxxx Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxx Printed Name: G. Xxxxxx Xxxxxxx
------------------------------------ -------------------------
Printed Name of Witness Title: President
---------------------------------
Date: 9-12-03
/s/ [ILLEGIBLE] ----------------------------------
------------------------------------
Signature of Witness
[ILLEGIBLE]
------------------------------------
Printed Name of Witness
27
STORE NO. 2630
EXHIBIT "A"
PROPERTY ADDRESS (LEGAL DESCRIPTION TO BE ATTACHED)
0000 Xxxxx Xxxxx Xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Legal Description is Attached.
1
STORE 2630R
Legal Description
Commercial Net Lease Realty Services, Inc.
Xxxxxxxx Road & Santa Fe Avenue
Edmond, Oklahoma County, Oklahoma
April 3, 2003
A tract of land being a part of the Southeast Quarter (SE/4) of Section
Twenty-one (21), Township Fourteen (14) North, Range Three (3) West of the
Indian Meridian, Oklahoma County. Oklahoma and being particularly described as
follows:
All of Block Five (5), HOMESTEAD COMMERCIAL PARK, an addition to the City of
Edmond, Oklahoma County, Oklahoma, according to the plat recorded at Book ??
Plats, Page 59, being more particularly described as follows:
COMMENCING at the Southeast Corner of said Southeast Quarter (SE/4):
THENCE South 89 DEG.51'09" West, a distance of 78 99 feet;
THENCE North 00 DEG.08'51" West, a distance of 50.00 feet, to the POINT OF
BEGINNING:
THENCE South 89 DEG.51'09" West, a distance of 235.00 feet;
THENCE North 00 DEG.23'37" East, a distance of 225.00 feet;
THENCE North 89 DEG.51'09" East, a distance of 260.00 feet;
THENCE South 00 DEG.23'37" West, a distance of 200.00 feet;
THENCE South 45 DEG.07'23" West, a distance of 36.52 feet, to the POINT OF
BEGINNING.
Said tract of land containing 58,185 square feet or 1.3357 acres, more or less.
STORE NO. 2630
EXHIBIT "B"
This instrument was prepared
by and should be returned to:
________________________,Esquire
Lowndes, Drosdick, Doster, Xxxxxx
& Xxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made and executed as of the ______ day of
______________, 20____, by ________________________, a ____________, whose
address is __________________________________ (hereinafter referred to as the
"Grantor") to __________________, a _________________, whose address is
________________________________________(hereinafter referred to as the
"Grantee");
WITNESSETH:
That the Grantor, for and in consideration of the sum of TEN DOLLARS
($10.00) and other valuable considerations, the receipt and sufficiency of which
are hereby acknowledged by these presents does grant, bargain, sell, alien,
remise, release, convey, and confirm unto the Grantee that certain piece, parcel
or tract of land situated in ___________ County, ____________ particularly
described as follows, to wit:
INSERT LEGAL DESCRIPTION
(hereinafter referred to as the "Subject Property");
TOGETHER WITH all the tenements, hereditaments, easements and
appurtenances, including riparian rights, if any, thereto belonging or in
anywise appertaining;
TO HAVE AND TO HOLD the Subject Property in fee simple forever.
AND the Grantor does hereby covenant with and warrant to the Grantee that
the Grantor is lawfully seized of the Subject Property in fee simple; that the
Grantor has good right and lawful authority to sell and convey the Subject
Property; and that the Grantor fully warrants the title to the
1
STORE NO. 2630
Subject Property and will defend the same against the lawful claims of all
persons claiming by, through or under the Grantor, but against none other.
THE conveyance made herein, however, is expressly made SUBJECT TO ad
valorem real property taxes and assessments for the year 20__ and thereafter,
and easements and restrictions of record, if any, the reference to which shall
not operate to reimpose the same.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed in
manner and form sufficient to bind it as of the day and year first above
written.
Signed, sealed and delivered in the
presence of the following witnesses:
By:
------------------------------------ ------------------------------------
Signature of Witness Printed Name:
--------------------------
Title:
---------------------------
Address:
------------------------------------ -------------------------------
Printed Name of Witness
-------------------------------
------------------------------------
Signature of Witness
------------------------------------
Printed Name of Witness
2
STORE NO. 2630
STATE OF ______________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ___ day of
____________, 20___ by _______________, as ______________________, a
________________, on behalf of the _____________. He (She) is personally known
to me or has produced _________________ as identification.
------------------------------------
(NOTARY SEAL) Signature of Notary Public
3
STORE NO. 2630
EXHIBIT "C"
QUIT-CLAIM XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT, *_______________________, whose address is
____________________________________________________(hereinafter referred to as
"Seller"), for and in consideration of the sum of *_________________ AND
____/100 DOLLARS ($*_____________) paid by *______________________, a
*___________________, whose address is *_________________________________
(hereinafter referred to as "Purchaser"), the sufficiency and receipt of which
is hereby acknowledged, has granted, bargained, sold, transferred and delivered,
and by these presents does grant, bargain, sell, transfer and deliver unto the
Purchaser, its successors and assigns, all of its right, title and interest in
and to such items, goods, chattels and equipment which are presently existing
and located at the property described in Exhibit "A" attached hereto and by this
reference incorporated herein subject, however, to any and all claims, liens or
encumbrances which have been or may be made against said personal property,
items, goods, chattels and equipment, AND WITHOUT WARRANTY OF TITLE, FITNESS OR
MERCHANTABILITY.
TO HAVE AND TO HOLD the same unto the Purchaser, its successors and assigns
forever.
IN WITNESS WHEREOF, the Seller has caused these presents to be executed as
of this ________ day of ________________, 2003.
Signed, sealed and delivered
in the presence of: , a
----------------------------------
---------------------------------------
By:
------------------------------------
Name: Name:
------------------------------- ----------------------------------
Its:
-----------------------------------
Name: (CORPORATE SEAL)
-------------------------------
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STORE NO. 2630
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made and
entered into as of the *________ day of *__________________, 2003, by and
between *__________________________________, a *_________________, having a
mailing address at *______________________________________________,
("Assignee"), and *______________________________, a
____________________________________, having a mailing address at
_______________________________________________ ("Assignor").
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real property
situate in *______________ County, State of *_____________________, more
particularly described on Exhibit A attached hereto and made a part hereof,
together with all improvements thereon (the "Real Property"); and
WHEREAS, the Real Property is subject to a certain Lease Agreement dated
*__________________, between Assignor, as Landlord and *______________________,
as Tenant (the "Lease"); and
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to the Lease to
Assignee, and Assignee has agreed to assume and perform certain of Assignor's
liabilities and obligations arising under the Lease on and after the date
hereof, all in accordance with this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
a. ASSIGNMENT. Assignor does, to the extent permitted by law, hereby
transfer, assign and set over to Assignee to the extent assignable all of
Assignor's right, title and interest in and to the Lease. Assignor does hereby
agree to indemnify, hold harmless and defend Assignee and its successors and
assigns harmless from and against all claims, damages, losses, liabilities,
costs and expenses (including but not limited to reasonable attorneys' fees and
expenses) arising under or in connection with the Lease prior to the date
hereof. Assignee does hereby agree to indemnify, hold harmless and defend
Assignor and its successors and assigns harmless from and against all claims,
damages, losses, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees and expenses) arising under or in connection with the
Lease after the date hereof.
b. ASSUMPTION. Subject to Section 15(4) of the Purchase and Sale
Agreement, Assignee hereby assumes all liabilities and obligations of Assignor
under the Lease which arise on or after the date hereof and agrees to perform
all obligations of Assignor under the Lease which are to be performed or which
become due on or after the date hereof.
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c. COUNTERPARTS. This Assignment may be executed by the parties in
counterparts, in which event the signature pages thereof shall be combined in
order to constitute a single original document.
d. BINDING EFFECT. This Assignment shall be binding upon and inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
e. LICENSE. Subject to the terms of that certain Real Estate Purchase
Contract dated ____________, 2003 between Assignor and Assignee covering the
purchase and sale of the Real Property. Assignee grants Assignor an irrevocable
license to go upon the Property to complete all of the work required by landlord
under the Lease and perform any and all tasks or take any and all acts necessary
to complete its work. This license shall expire and may only be terminated upon
completion of all of construction work required by landlord under the Lease.
Assignor shall defend, hold harmless and indemnify Assignee and each Acquiring
Entity from and against any and all claims, costs, expenses (including, but not
limited to, reasonable attorneys fees and litigation costs), damages, judgments,
demands, penalties, fines, interest and liabilities, and for any and all loss of
life, injury to persons or damage to property due to or resulting from, directly
or indirectly Assignor's or its designees exercising this License.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above.
,
Signed, sealed and delivered --------------------------------------
in the presence of: a
--------------------------------------
Name:
----------------------------------
Name: Title:
------------------------------ ---------------------------------
Its:
-----------------------------------
Name: (CORPORATE SEAL)
------------------------------
,
--------------------------------------
a
--------------------------------------
Name:
----------------------------------
Name: Title:
------------------------------ ---------------------------------
Its:
-----------------------------------
Name: (CORPORATE SEAL)
------------------------------
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STATE OF _______________________
COUNTY OF ______________________
The foregoing instrument was acknowledged before me this ______ day of
_________________, 2003 by __________________, as ________________________ of
___________________________________, a ____________________________________, on
behalf of the _______________________. He/She is personally known to me or has
produced ______________________________ as identification.
---------------------------------------
(NOTARY SEAL) Signature of Notary Public
---------------------------------------
Typed or Printed Name of Notary
Commission No.:
-----------------------
My Commission Expires:
----------------
STATE OF _____________________
COUNTY OF ____________________
The foregoing instrument was acknowledged before me this __________ day of
__________________, 2003 by ________________, as ____________________________ of
______________________________, a _________________________________ on behalf of
the _____________________. He/She is personally known to me or has produced
___________________________ as identification.
---------------------------------------
(NOTARY SEAL) Signature of Notary Public
---------------------------------------
Typed or Printed Name of Notary
Commission No.:
-----------------------
My Commission Expires:
----------------
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EXHIBIT "E"
ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS, WARRANTIES AND
INTANGIBLE PROPERTY
THIS ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES (this
"Assignment") is made and entered into as of the ________ day of
___________________, 2003, by *__________________________________, a
________________________, having a mailing address at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Assignor"), in favor of
*_____________________________________, a ________________________, having a
mailing address at ________________________________________________
("Assignee");
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real property
situate in __________________________ County, ____________________, more
particularly described on Schedule A attached hereto and made a part hereof,
together with all improvements thereon (the "Real Property"); and
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to certain
licenses, permits, plans, contracts and warranties relating to the design,
development, construction, ownership, operation, management and use of the Real
Property.
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to the
following (collectively, the "Assigned Property"):
(i) all logos, designs, trade names, trademarks, service marks,
copyrights and other intellectual property used by Assignor in connection with
the ownership and operation of the Real Property or any part thereof, together
with the goodwill of the business appurtenant thereto;
(ii) the contracts, commitments, equipment leases, guaranties, payment
and performance bonds, warranties and other agreements (excluding, however, for
the purposes of this Assignment, any tenant leases relating to the Real
Property) set forth on Exhibit B attached hereto and made a part hereof, which
are all of the contracts, commitments, equipment leases, guaranties, warranties
and other agreements (excluding, however, for the purposes of this Assignment,
any tenant leases relating to the Real Property) relating to the Real Property;
(iii) the licenses, certifications, authorizations, approvals,
certificates of occupancy, zoning variances, building, use and other permits set
forth on Exhibit C attached hereto and made a part hereof, which licenses,
certifications, authorizations, approvals and permits constitute all of the
licenses, certifications, authorizations, approvals and permits issued or
approved by any governmental authority and relating to the operation, ownership
and maintenance of the Real Property or any part thereof; and
(iv) all architectural drawings, plans, specifications, soil tests,
feasibility studies, appraisals, engineering reports and similar materials
relating to the Real Property, including, without
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limitation, all as built plans and specifications for the improvements on the
Real Property, including any plans and specifications for and a complete
description of all existing renovations to the Real Property and the rentable
space therein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
5. Assignment. Assignor does, to the extent permitted by law, hereby
transfer, assign and set over to Assignee to the extent assignable all of
Assignor's right, title and interest in and to all of the Assigned Property.
Assignor does hereby agree to indemnify, hold harmless and defend Assignee and
its successors and assigns harmless from and against all claims, damages,
losses, liabilities, costs and expenses (including but not limited to reasonable
attorneys' fees and expenses) arising under or in connection with the Assigned
Property prior to the date hereof. Assignee does hereby agree to indemnify, hold
harmless and defend Assignor and its successors and assigns harmless from and
against all claims, damages, losses, liabilities, costs and expenses (including
but not limited to reasonable attorneys' fees and expenses) arising under or in
connection with the Assigned Property after the date hereof.
6. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date
set forth above.
ATTEST: ,
----------------------------------
a
------------------------------
By: By:
--------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Its: Its:
-------------------------------- -------------------------------
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EXHIBIT F
SURVEYOR'S CERTIFICATE
CERTIFIED TO: Inland Real Estate Acquisitions, Inc., its successors and
assigns the Acquiring Entity, and its successors and
assigns Chicago Title Insurance Company
The undersigned does hereby certify that
(i) this survey was made upon the ground of the property described by the
provided legal description and shown hereon and hereafter referred to as "the
property", on _____________________, 2003, under my supervision, for the benefit
of and reliance by Inland Real Estate Acquisitions, Inc., its successors and
assigns, [Name of the individual property owner], its successors and assigns,
Chicago Title Insurance Company, and accurately shows and represents the
property and the locations of all buildings, structures and other improvements
and visible items (including all parking spaces (and a count thereof) located
upon the property and the sizes of such parking spaces) and known utilities
located thereon, and the relation of all such buildings, structures and other
improvements to the property lines of the property;
(ii) the legal description of the property contained hereon is accurate and
the physical evidence of boundary lines and lines of possession or occupancy
have been shown hereon and proper notation made where conflicts exist between
said legal description and said possession or occupancy lines, and the legal
description shown hereon forms a mathematically closed figure;
(iii) the property reflected hereon has physical and legal access to and
from a dedicated public roadway; and the public roads, highways, streets and
alleys running adjacent to or upon the property are shown hereon;
(iv) except as shown hereon, there are no discrepancies, conflicts,
shortages in area, encroachments (from the property onto any adjacent property,
including streets, roadways and alleys, and/or from any adjacent property,
including streets, roadways and alleys, onto the property), visible
improvements, overlapping of improvements, set-back and/or building lines set
forth by zoning or subdivision plat, easements (and no evidence on the ground of
use of the property that might suggest a possible claim of easement) or
rights-of-way set forth by subdivision plat or itemized in the referenced title
commitment shown hereon, drainage ditches, power lines or roadways that affect
the property, or visible utilities that affect the property;
(v) there are no gaps, gores, or overlaps between the property and the
adjacent parcels or rights of way for roads, highways, streets, or alleys and
all parcels that comprise the property, as reflected hereon, are contiguous;
(vi) the property is a separate tax lot;
(vii) except as noted hereon, the following utilities (for the operation of
the property) are available at the lot lines or enter the property at adjoining
public streets and do not run through or under any buildings located on the
property reflected hereon: water, sanitary sewer, storm sewer, gas, electricity
and telephone;
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(viii) except as shown hereon, there are no violations of zoning ordinances
or zoning restrictions with reference to the location of all buildings,
structures and improvements situated on the property and the number, and
configuration of parking spaces as shown hereon;
(ix) the gross and net areas (both acreage and square footage) shown hereon
are accurate and except as shown hereon, there are no boundary line
discrepancies and no deficiencies in the quantity of the land described in the
legal description of the property;
(x) this property lies in Flood Zone ___________ according to Flood
Insurance Rate Maps for the City of ________, Community Panel No.
__________________, dated __________________ and issued by the Federal Emergency
Management,
(xi) this Survey accurately shows (i) the zoning classification of the
property, (ii) the parking requirements of the zoning code applicable to the
property, and (iii) the source of such information, and
(xi) this survey conforms with the "Minimum Standard Detail Requirements of
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 includes Table "A" items 1, 2, 3, 4, 6, 7(a)-(c), 8, 9, 10, 11(a)
and (b), 13, 14, 15 and 16 therein. Pursuant to the Accuracy Standards as
adopted by ALTA and ACSM and in effect on the date of this certification, the
undersigned further certifies that 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."
[Surveyor's Name]
By:
--------------------------------
Date:
------------------------------
Registered Land Surveyor No.
-----------
Date of Survey:
------------------------
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STORE NO. 2630
EXHIBIT G
ASSIGNMENT OF CONSTRUCTION CONTRACTS
THIS ASSIGNMENT OF CONSTRUCTION CONTRACTS (this "Assignment") is made and
entered into as of _________ __, 200__ by and between ________________________
("Assignor") and ________________________ ("Assignee").
WITNESSETH:
Assignor, for good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, hereby grants, transfers and assigns to
Assignee all of Assignor's right, title and interest to all that certain
construction contract listed on Schedule A, together with all warranties and
guaranties and other rights thereunder (the "Assigned Contract") relating to the
development of the real property located at __________________________, and
commonly known as __________________________ (the "Property"), together with all
modifications, amendments, notices, materials correspondence, or other relevant
materials.
Assignor agrees to, and hereby does, indemnify and hold harmless Assignee
and its successors and assigns from and against any and all claims, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and costs, including paralegal fees) which may be asserted against or imposed on
or incurred by Assignee or its successors and assigns by reason of Assignor's
failure to pay, perform, observe or comply with any of the terms, covenants,
conditions, agreements, provisions or obligations contained in the Assigned
Contract to be kept, paid, performed, observed and complied with by the Assignor
prior to the date hereof and/or for which Assignor retains responsibility under
the terms of that Purchase and Sale Agreement dated __________, 2003 between
Assignor and Inland Real Estate Acquisitions, Inc. (the "Purchase Agreement").
Assignor agrees that it shall be and remain responsible for the payment of any
and all costs, expenses, fees and other compensation due and payable, or that
shall become due and payable, to [INSERT NAME OF CONTRACTOR] (the "Contractor")
under and pursuant to the Assigned Contract, except for any such costs,
expenses, fees or other compensation due on account of any work performed by the
Contractor at the direction of Assignee and for which Assignor has not retained
liability under the Purchase Agreement.
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IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
under seal as of the date and year first above written.
ASSIGNOR:
-----------------------------
By:
-------------------------
Name:
-----------------
Its:
------------------
ASSIGNEE:
-----------------------------
By:
-------------------------
Name:
-----------------------
Its:
------------------------
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STORE NO. 2630
SCHEDULE A
ASSIGNED CONTRACT
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EXHIBIT H
ASSIGNMENT OF ARCHITECT'S AGREEMENT
THIS ASSIGNMENT OF ARCHITECT'S AGREEMENT (this "Assignment") made as of
____________ __, 2003 by and between ____________________________ ("Assignor")
and ____________________________ ("Assignee").
WITNESSETH:
Assignor, for good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, hereby grants, transfers and assigns to
Assignee all of Assignor's right, title and interest to all of that certain
architects contract listed on Schedule A, together with all warranties and
guaranties, and other rights thereunder (the "Assigned Contract") relating to
the development of the real property located at ____________________________,
and commonly known as ____________________________ (the "Property"), together
with all modifications, amendments, notices, materials correspondence, or other
relevant materials.
Assignor agrees to, and hereby does, indemnify and hold harmless Assignee
and its successors and assigns from and against any and all claims, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and costs, including paralegal fees) which may be asserted against or imposed on
or incurred by Assignee or its successors and assigns by reason of Assignor's
failure to pay, perform, observe or comply with any of the terms, covenants,
conditions, agreements, provisions or obligations contained in the Assigned
Contract to be kept, paid, performed, observed and complied with by the Assignor
prior to the date hereof or for which Assignor retains responsibility under the
terms of that certain Purchase and Sale Agreement dated ____________, 2003
between Assignor and Inland Real Estate Acquisitions, Inc. (the "Purchase
Agreement"). Assignor agrees that it shall be and remain responsible for the
payment of any and all costs, expenses, fees and other compensation due and
payable, or that shall become due and payable, to [INSERT NAME OF ARCHITECT]
(the "Architect") under and pursuant to the Assigned Contract, except for any
such costs, expenses, fees or other compensation due on account of any work
performed by the Architect at the direction of Assignee and for which Assignor
has not retained liability under the Purchase Agreement.
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IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
under seal as of the date and year first above written.
ASSIGNOR:
-----------------------------
By:
-------------------------
Name:
-----------------
Its:
------------------
ASSIGNEE:
By:
-------------------------
Name:
-----------------------
Its:
------------------------
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STORE NO. 2630
SCHEDULE A
ASSIGNED XXXXXXXX
0
XXXXX XX. 0000
EXHIBIT I
FORM OF TENANT ESTOPPEL
Store #
Eckerd Corporation
Estoppel Certificate
Date:
Re: Lease dated , 20____ between
Landlord: Commercial Net Lease Realty Services, Inc.
Tenant: Eckerd Corporation
Location:
Modified:
Ladies and or Gentlemen:
The undersigned, as the present owner and holder of the Tenant's interest
under the aforesaid Lease, hereby confirms the following to the best of its
knowledge:
1. That it has accepted possession of the premises demised pursuant to
the terms of the aforesaid Lease.
2. That the improvements and space required to be furnished according
to the said Lease have been completed and have been found to be satisfactory.
3. That the Landlord has fulfilled all of its duties of an inducement
nature including the parking requirements as set forth in the lease.
4. That the aforesaid Lease has not been modified, altered or amended
except as noted herein.
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STORE NO. 2630
5. That there are no off-sets or credits against rentals, nor have
rentals been prepaid except as provided by the Lease terms, but in no event have
rentals been paid more than thirty (30) days in advance.
6. That the Landlord, as of this date, is not in default under any of
the terms of said Lease.
7. That said Lease commenced on ___________________, 20__. The current
Lease term expires on ___________________, 20__.
8. That it has no notice of prior assignment, hypothecation or pledge
of rents of the Lease.
9. That no claim of amendment, modification or waiver of any of the
terms and conditions of the Lease shall be made against the undersigned, its
successors or assigns, as a result of any statement or representation contained
in this Estoppel Certificate.
Eckerd Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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STORE NO. 2630
EXHIBIT J
ENVIRONMENTAL DISCLOSURE
NONE
1
FIRST AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "First
Amendment") is made and entered into as of the 23rd day of October, 2003, by and
between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real
Estate Purchase Contract dated as of September 16, 2003 (the "Agreement"), with
respect to certain real property and all improvements thereon located at 0000
Xxxxx Xxxxx Xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals
are, by this reference, incorporated into the text of this First Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
First Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. TITLE/SURVEY. Paragraph 6 of the Agreement is hereby deleted in its
entirety. Any and all references in the Agreement to Paragraph 6 shall mean and
refer to Paragraph 5 of the Agreement. Paragraph 5 of the Agreement is hereby
amended and restated in its entirety as follows:
"5. TITLE/SURVEY. No later than October 24, 2003, Seller shall
deliver or cause to be delivered to Purchaser an as-built survey of the
Property prepared by a surveyor licensed in the State of Oklahoma (the
"Survey") certified to Purchaser, Purchaser's lender, if any, the Title
Insurer and such other parties as Purchaser shall designate in writing to
Seller prior to delivery of the Survey, and prepared in accordance with the
Accuracy Standards and Minimum Standard Detail Requirements for ALTA-ACSM
Land Title Surveys as adopted by the American Land Title Association, the
American Congress on Surveying and Mapping and the National Society of
Professional Surveyors in 1999, and prepared in accordance with the items
set forth in the Surveyor's Certificate and other requirements attached
hereto as EXHIBIT "F" and made a part hereof. Seller shall be responsible
to pay for the costs of the Survey up to a total cost of $1,000. Purchaser
shall pay the costs of the Survey in excess of $1,000. Notwithstanding the
foregoing, if the cost of the Survey is expected to exceed the amount that
Seller is obligated to pay, then, prior to ordering the same, Seller shall
obtain Purchaser's prior approval of the cost thereof. Any and all
references contained in this Agreement to the "Survey" and the "As-Built
Survey" shall mean and refer to the Survey. No later than three (3) days
after the Effective Date, Purchaser shall, at Seller's sole cost and
expense, order from the Title Insurer (as defined hereinbelow) a commitment
for an ALTA Owner's Title Insurance Policy (the "Title Commitment") for the
Property, together with
legible copies of any and all title exception documents referenced therein,
issued by Chicago Title Insurance Company (the "Title Insurer") in the
amount of the Purchase Price of the Property, showing Seller as owner of
the Property in fee simple, subject only to the title exceptions approved
or deemed approved by Purchaser pursuant to this Paragraph 5 (each a
"PERMITTED EXCEPTION"), and other exceptions pertaining to liens or
encumbrances of a definite or ascertainable amount (which, in the
aggregate, do not exceed that portion of the Purchase Price payable to
Seller on the Closing Date) which may be removed by the payment of money at
closing and which Seller shall so remove, and providing for full extended
coverage over all general title exceptions contained in such Title
Commitment and the following special endorsements (collectively, the
"SPECIAL TITLE ENDORSEMENTS"): Zoning Endorsement 3.1 (amended to include
parking), owner's comprehensive, access, survey (legal description
equivalency), separate tax parcel, contiguity (if applicable), waiver of
creditor's rights, environmental protection lien, encroachment (if
applicable), utility facility, subdivision, location, deletion of the
arbitration provision, and any other endorsements required by Purchaser. No
later than ten (10) days after Purchaser's receipt of all of the Title
Commitment, legible copies of all documents referenced in the Title
Commitment and the Survey, Purchaser may deliver to Seller a notice (the
"TITLE AND SURVEY NOTICE") identifying any matters contained in or
disclosed by any of the Title Commitment and/or the Survey that are not
acceptable to Purchaser in its sole and absolute discretion (each, a
"TITLE/SURVEY OBJECTION", and collectively, the "TITLE/SURVEY OBJECTIONS").
Any and all references in this Agreement (a) to the "New Title and Survey
Notice" and the "Title and Survey Notice" shall mean and refer to the Title
and Survey Notice, and (b) to a "Title/Survey Objection(s)" and/or "New
Title/Survey Objection(s)" shall mean and refer to the Title/Survey
Objection(s). Purchaser's failure to deliver the Title and Survey Notice as
aforesaid shall be deemed Purchaser's approval and acceptance of the Title
Commitment and the Survey, and all matters shown and referenced thereon and
therein shall be deemed Permitted Exceptions. Additionally, Purchaser's
failure to object to any matters disclosed by the Title Commitment and/or
the Survey in a Title and Survey Notice shall be deemed Purchaser's
acceptance of such matters, and such matters shall be deemed Permitted
Exceptions. If Purchaser shall deliver the Title and Survey Notice to
Seller as aforesaid, Seller shall, within five (5) days after receipt of
the same, notify Purchaser, with respect to each Title/Survey Objection,
whether Seller intends to either (a) cause the Title/Survey Objection to be
removed, (b) have the Title Insurer issue a title endorsement insuring
against damage and loss caused by any Title/Survey Objection (which
endorsement shall be subject to the review and approval of Purchaser), or
(c) take no further action regarding such Title/Survey Objection in which
event, subject to the immediately following sentence, such Title/Survey
Objection shall become a Permitted Exception. Notwithstanding the
foregoing, Seller shall, at its expense, remove (or cause to be removed) or
cause the Title Insurer to insure over any Title/Survey Objection appearing
on the Title Commitment that is any of the following: (1) judgments against
Seller, and/or (2) mortgages or monetary liens, defects, obligations or
exceptions of a definite and ascertainable amount that can be satisfied
solely by the payment of money (items (1) and (2) above to be hereinafter
referred to collectively as "MONETARY EXCEPTIONS"). If Seller elects, or is
deemed to have elected, item (c) above, then Purchaser shall have the
right, by delivering notice to Seller within three (3) business days after
the expiration of the aforementioned five (5) day period to either (i)
terminate this Agreement in which event the Xxxxxxx Money (and any interest
earned thereon) shall be immediately returned to Purchaser and thereupon
neither Seller nor Purchaser shall have any further rights, duties or
obligations under this Agreement, or (ii) waive its objection and accept
title to the Property subject to such Title/Survey Objections, in which
event this Agreement shall remain in full force and effect. Seller's
failure to notify Purchaser within the
2
aforementioned five (5) day period of which foregoing course of action
Seller elects to take with respect to a Title/Survey Objection shall be
deemed Seller's election of item (c) above. With respect to any
Title/Survey Objection that Seller has elected or is deemed to have elected
not to take any further action, Purchaser's failure to terminate this
Agreement on or before the expiration of the aforementioned three (3)
business day period as aforesaid shall be deemed Purchaser's waiver of its
objection as provided in (ii) above. If the Title Commitment discloses
judgments, bankruptcies or other matters against other persons having names
the same as or similar to that of Seller, Seller, on the Title Insurer's
request, shall deliver to the Title Insurer affidavits or other evidence
reasonably acceptable to the Title Insurer showing and/or confirming that
such judgments, bankruptcies or other matters are not against Seller, or
any affiliates.
If Seller has elected or, with respect to Monetary Exception is
required, to cure any Title/Survey Objection as provided above (whether by
removal of, or obtaining title insurance over, the same), but failed to
cure any such matters prior to the Closing Date, then Purchaser, and
without waiving any rights of Purchaser for a Seller default under this
Agreement, may elect to either (i) terminate this Agreement in which event
the Xxxxxxx Money shall be immediately returned to Purchaser and thereupon
neither Seller nor Purchaser shall have any further rights, duties or
obligations under this Agreement, (ii) waive its objection and accept the
Property subject to such Title/Survey Objection, in which event this
Agreement shall remain in full force and effect; provided, however, that if
the Title/Survey Objection is a Monetary Exception, then Purchaser shall
have the right to deduct from the Purchase Price the amount of such
Monetary Exception, and any amount so deducted from the Purchase Price
shall be paid to the appropriate party in exchange for the removal of such
Monetary Exceptions; or (iii) xxx Seller for specific performance.
Notwithstanding anything in this Section or Agreement to the
contrary, Seller may elect to not pay off any mechanic's or materialman's
lien filed against the Property in connection with the construction
provided Seller bonds any such lien to the reasonable satisfaction of
Purchaser and the Title Insurer and further provided that the Title Insurer
issues, at Seller's cost, an endorsement to Purchaser's final Owner's Title
Policy to be issued pursuant to Section 10(c) below insuring against any
loss or damage arising on account of such lien. Seller shall have one (1)
year from the Closing Date to finalize and cause the release of any
mechanic's or materialman's lien filed against the Property in connection
with Seller's work to construct, complete and/or to perform warranty work
on the Improvements pursuant to Section 15(3) below. This provision shall
survive the Closing."
3. CLOSING COSTS. Clause (vii) of the Seller's closing costs as set
forth in Paragraph 11 of the Agreement is hereby amended and restated in its
entirety as follows: "(vii) the costs of the Title Commitment (including all
updates theeof);".
4. COUNTERPARTS; FACSIMILE SIGNATURES. This First Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original executed
and delivered agreement.
5. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this First Amendment,
this First Amendment shall be deemed to be a part of the Agreement. The terms
and provisions of Sections 21, 22, 23, 24, 25 (except
3
that the Agreement and this First Amendment contain the sole and entire
understanding between Seller and Purchaser with respect to the transactions
contemplated by the Agreement and this First Amendment), 26, 27, 28 and 31 of
the Agreement are, by this reference, incorporated into this First Amendment and
shall apply to this First Amendment as if fully set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
4
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
-------------------------------
Name: G. Xxxxxx Xxxxxxx
-----------------------
Its: President
------------------------
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------
Its: EVP
------------------------
5
SECOND AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS SECOND AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "Second
Amendment") is made and entered into as of the 27th day of October, 2003, by and
between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real
Estate Purchase Contract dated as of September 16, 2003 (the "Original
Agreement"), as amended by that certain First Amendment to Real Estate Purchase
Contract dated as of October 23, 2003 (the "First Amendment"; the Original
Agreement and the First Amendment shall hereinafter sometimes be referred to
collectively as the "Agreement"), with respect to certain real property and all
improvements thereon located at 0000 Xxxxx Xxxxx Xx Xxxxxx, Xxxxxx, Xxxxxxxx
00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals
are, by this reference, incorporated into the text of this Second Amendment as
if fully set forth herein. Initially capitalized terms used but not defined in
this Second Amendment, but defined in the Agreement, shall have the meanings
given to them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Paragraph 4 of the Original
Agreement, the Inspection Period is scheduled to expire on or about October 28,
2003. Seller and Purchaser hereby agree that the date upon which the Inspection
Period shall expire is hereby extended from October 28, 2003 to November 11,
2003. Purchaser hereby agrees that, prior to the expiration of the Inspection
Period, Seller shall have the right to market the Property for sale. From and
after the expiration of the Inspection Period (provided that Purchaser shall not
have terminated the Agreement pursuant to Paragraph 7 thereof), Seller shall
cease any and all such marketing efforts.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Second Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Second Amendment,
this Second Amendment shall be deemed to be a part of the Agreement. The terms
and provisions of Paragraphs 21, 22, 23, 24, 25 (except that the Agreement and
this Second Amendment contain the sole and entire understanding between Seller
and Purchaser with respect to the transactions contemplated by the Agreement and
this Second Amendment), 26, 27, 28 and 31 of the Original Agreement are, by
this reference, incorporated into this Second Amendment and shall apply to this
Second Amendment as if fully set forth herein.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
-------------------------------
G. Xxxxxx Xxxxxxx
President
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
----------------------
Its: Executive VP
-----------------------
THIRD AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS THIRD AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "Third
Amendment") is made and entered into as of the 11th day of November, 2003, by
and between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real
Estate Purchase Contract dated as of September 16, 2003 (the "Original
Agreement"), as amended by that certain First Amendment to Real Estate Purchase
Contract dated as of October 23, 2003 (the "First Amendment") and as further
amended by that certain Second Amendment to Real Estate Purchase Contract dated
as of October 27, 2003 (the "Second Amendment"; the Original Agreement, the
First Amendment and the Second Amendment shall hereinafter sometimes be referred
to collectively as the "Agreement"), with respect to certain real property and
all improvements thereon located at 0000 Xxxxx Xxxxx Xx Xxxxxx, Xxxxxx, Xxxxxxxx
00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals
are, by this reference, incorporated into the text of this Third Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Third Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. DELIVERIES AT CLOSING. The last two (2) grammatical sentences of
Paragraph 9(a)(vi) are hereby deleted and replaced with the following: "Prior to
Closing, Purchaser and Seller shall agree upon the Licenses, Permits, Plans,
Contracts and Warranties to be set forth on Exhibits B and C to the License
Assignment." The last grammatical sentence of Paragraph 9(a)(x) of the Original
Agreement is hereby deleted and replaced with the following: "Purchaser shall,
as part of the Title and Survey Notice, give Seller in writing a list of the
operating agreements and/or reciprocal easement agreements for which Purchaser
wants estoppel certificates or Seller shall have no obligation to furnish
Purchaser any such estoppel certificates." Additionally, the following shall be
incorporated as Section 9(a)(xxiv) of the Original Agreement:
"(xxiv) Not less that ten (10) days prior to Closing, copies of all
documents and materials to be provided by the general contractor (a) under
the Construction Contract pursuant to Section F of the Construction
Administration Procedures attached as Exhibit J to such Construction
Contract, and (b) required in that certain letter from Xxxxxxx Xxxxxxx (of
Seller's office) to Xxx Xxxxxx (of Xxxxxx Construction Corp.) dated August
7, 2003."
3. ROOF WARRANTY. Seller covenants and agrees that the roof warranty to
be issued with respect to the Property shall comply in all respects with the
requirements of the Lease.
4. LEASE COMMENCEMENT DATE AND LEASE TERMINATION DATE. In addition to
the other terms, provisions and conditions to Closing, Seller shall, at Closing,
deliver to Purchaser a fully executed document or instrument pursuant to which
Tenant acknowledges and confirms the Lease Commencement Date and the Lease
Termination Date (as such terms are defined in the Lease).
5. CONTRACTOR AND ARCHITECT CONSENT. Seller and Purchaser acknowledge,
and it shall be a condition precedent to Purchaser's obligation to close the
transaction contemplated by the Agreement and this Third Amendment, that (a)
each of the general contractor under the Construction Contract and the architect
under the Architect's Agreement, as applicable, consent to and approve of the
assignment of Seller's right, title and interest in, to and under the
Construction Contract and the Architect's Agreement to Purchaser (or Purchaser's
nominee or assignee), and (b) such consents/approvals contain a provision
pursuant to which such general contractor and architect agree to look only to
Seller for payment of any and all costs, expenses, fees, reimbursables and other
amounts due and payable (or that become due and payable) under the Construction
Contract and the Architect's Agreement.
6. OTHER CONTRACTS. Seller represents and warrants to Purchaser that
any and all labor, materials, services and other work to be provided and/or
performed under and pursuant to the contracts and agreements with the following
entities have been fully provided and performed in accordance with the terms and
provisions of such contracts and agreements, and final, full payment for all
such labor, materials, services and other work has been made or will have been
made by Closing: Xxxxxxx & Associates Civil Engineering and Surveying Services;
(b) Terracon Geotechbical; and (c) Enercon Services, Inc.
7. TITLE/SURVEY: In addition to all other terms, provisions and
conditions of the Agreement, Purchaser's obligation to close the transaction
contemplated by the Agreement and this Third Amendment shall be subject to and
conditioned upon resolution and completion, to Purchaser's satisfaction, of all
title and survey matters raised, addressed and responded to in the following:
(a) Purchaser's Title and Survey Notice dated Xxxxxxx, 00, 0000, (x) Seller's
response to Purchaser's Title and Survey Notice pursuant to a letter dated
November 5, 2003, and (c) Purchaser's response dated November 7, 2003 to
Seller's November 5, 2003 letter.
8. ZONING LETTER: Seller previously has delivered to Purchaser a
certain zoning letter dated October 31, 2003 from the City of Xxxxxx. Purchaser
acknowledges that the text of such letter is acceptable. However, such zoning
letter is addressed to Inland Western Xxxxxx, LLC. As an additional condition to
Closing, such zoning letter shall be re-addressed to "Inland Western Xxxxxxxx,
L.L.C."
9. COUNTERPARTS; FACSIMILE SIGNATURES. This Third Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
10. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. This Third Amendment shall be deemed to be a part
of the Agreement. The terms and provisions of Paragraphs 21, 22, 23, 24, 25
(except that the Agreement and this Third Amendment contain the sole and entire
understanding between Seller and Purchaser with respect to the transactions
contemplated by the Agreement and this Third Amendment), 26, 27, 28 and 31 of
the Original Agreement are, by this reference, incorporated into this Third
Amendment and shall apply to this Third Amendment as if fully set forth herein.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
--------------------------------
G. Xxxxxx Xxxxxxx
President
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
----------------------
Its: Executive Vice President
-----------------------
