Exhibit 10.39
THIRD AMENDMENT TO CONTRACT OF SALE
THIS THIRD AMENDMENT (this "THIRD AMENDMENT") dated as of January 16,
2004 by and between DDRA COMMUNITY CENTERS FOUR, L.P., having an address c/o DRA
Advisors LLC, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("SELLER") and INLAND REAL ESTATE ACQUISITIONS, INC., 0000 Xxxxxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxx 00000 ("PURCHASER").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser have entered into a Contract of Sale,
dated December 23, 2003 as amended by a First Amendment to Contract dated as of
December 26, 2003, as amended by a Second Amendment to Contract dated as of
January 6, 2004 (as amended, the "CONTRACT") with respect to the Premises (as
defined in the Contract); and
WHEREAS, the parties wish to amend the Contract.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which the parties hereby acknowledge, the parties agree as follows:
1. All capitalized terms set forth herein shall have the meanings
ascribed to such terms in the Contract unless otherwise defined herein.
2. The following shall be inserted as Article 15 of the Contract:
15.1 At Closing, Seller shall deposit in escrow with Escrowee
the aggregate rent (including expense recovery charges) set forth on Schedule H
annexed hereto (except as may be reduced pursuant to Section 15.3 below) ("PAD
ESCROW") payable by the Space Tenants listed on Schedule H (each, and, if
applicable, their replacements, individually, a "PAD TENANT" and, collectively,
the "PAD TENANTS") for the first twelve (12) months (the "INITIAL PERIOD") of
the twenty four (24) month period commencing as of the Closing Date (such 24
month period, the "PAD TERM" and the second twelve (12) months of the Pad Term
(the "SECOND PERIOD"). The Pad Escrow shall be held in an interest bearing
account pursuant to the escrow instructions set forth on EXHIBIT 14 (as amended
in this Third Amendment). If, during the Pad Term, any Pad Tenant shall make a
monthly rent payment to Purchaser which is less than the monthly amount
corresponding to such Pad Tenant on Schedule H and such reduction in rent is due
directly to the Proceeding, Purchaser shall be entitled to withdraw, at any time
after the fifteenth (15th) day (the "WITHDRAWAL DATE") of the applicable month,
from the Pad Escrow the monthly rental payment for such Pad Tenant as set forth
on Schedule H less any amount received by Purchaser allocable to the Pad Tenant
(and if Purchaser thereafter receives any amount allocable to the Pad Tenant
whether during the Pad Term or after the expiration of the Pad Term, which is
attributable to the month for which Purchaser received an escrow withdrawal,
Purchaser shall promptly remit such amount to Escrowee if received during the
Initial Period and to Seller if received during the Second Period). Commencing
on the first anniversary of the Closing Date, Escrowee shall distribute to
Seller the balance of the Pad Escrow attributable to a particular month in the
Second Period immediately after the earlier of (i) Purchaser's Pad Escrow
withdrawal for such month or (ii) ten (10) days after the applicable Withdrawal
Date. Upon the expiration of the Pad Term, Escrowee shall distribute to Seller
the balance of the Pad Escrow, if any, and Seller shall be released from all
liability to Purchaser under this Article 15.
Notwithstanding the foregoing, to the extent any Pad Tenant delivers a "not
sufficient funds" check to Purchaser, and a corresponding sum is released to
Seller during the Second Period, pursuant to the terms of this paragraph, Seller
agrees to reimburse Purchaser therefor within thirty (30) days after receipt of
notice from Purchaser.
15.2 During the Pad Term, Purchaser shall: (i) use best efforts
to enforce the provisions of all space leases at the Premises, (ii) take
commercially reasonable actions so as to mitigate the likelihood of a Pad Tenant
reducing its monthly rental payments or terminating its space lease, (iii) in
the event a Pad Tenant (A) vacates its premises and is in default under its
space lease for the nonpayment of rent or (B) terminates its space lease, use
best efforts to enter into new space leases for such premises consistent with
market standards and (iv) not enter into any agreement with a Pad Tenant
regarding its waiver or reduction of rent under its space lease, without
Seller's prior written consent.
15.3 Notwithstanding anything contained herein to the contrary,
in the event that, as of the Closing Date, any Pad Tenant is deemed to occupy
Future Master Lease Space, Seller's obligations with respect to such Pad Tenant
under this Article 15 shall be null and void and of no further force and effect,
including without limitation, Seller's obligation to post the applicable Pad
Escrow.
15.4 Seller shall have no obligation or liability to Purchaser,
pursuant to this Article 15, in excess of the amounts set forth on Schedule H
(as reduced pursuant to Section 15.1 and 15.3 above).
15.5 The provisions of Article 15 shall survive Closing.
3. The following shall be inserted as Article 16 of the Contract:
"Notwithstanding anything contained in the Contract to the
contrary, in consideration for the provisions set forth in Articles 15 and 19,
Purchaser hereby agrees to release, pay, indemnify, defend, exonerate, protect
and save Seller harmless against and from any and all costs, damages, losses,
liabilities, liens, encumbrances, judgments, obligations, penalties, claims,
disbursements or expenses of any kind or nature whatsoever, whether direct or
contingent, including, without limitation, reasonable attorneys' fees and
disbursements which may at any time be imposed upon, incurred by or asserted or
awarded against Purchaser, Seller or the Premises, and arising from, out of,
under, or in any way relating to the Proceeding or any work performed in
connection therewith except to the extent of Seller's obligations in Article 15,
provided that Purchaser's indemnity shall not include consequential damages.
Purchaser hereby acknowledges that Seller has filed a Motion to Withdraw the
Award (the "Award") of Special Commissioners in connection with the Proceeding
and Purchaser shall not object to or interfere with same. Notwithstanding the
foregoing, Purchaser agrees to use commercially reasonable efforts (at Seller's
sole cost and expense) to assist Seller in its collection of the Award in the
event Seller requests same. It is understood that the amount of the Award in
excess of Six Hundred Thousand and 00/100 Dollars ($600,000.00) shall belong to
Purchaser. The provisions of this Article 16 shall survive Closing."
4. The following shall be inserted as Article 17 of the Contract:
"Notwithstanding anything contained in the contract to the
contrary, in consideration for the provisions set forth in Article 15, Seller
hereby agrees to release, pay,
indemnify, defend, exonerate, protect and save Purchaser harmless against and
from any and all costs, damages, losses, liabilities, liens, encumbrances,
judgments, obligations, penalties, claims, disbursements or expenses of any kind
or nature whatsoever, whether direct or contingent, including, without
limitation, reasonable attorneys' fees and disbursements which may at any time
be imposed upon, incurred by or asserted or awarded against Purchaser, Seller or
the Premises, and arising from, out of, under, or in any way relating to that
certain Petition titled ISO Group, Inc. d/b/a Successories of Texas, Plaintiff
v. DDRA Community Centers Four, L.P., Defendant, in the District Court of the
407th Judicial District, Bexar County, Texas, Case No. 2003C119672 (the
"Petition"), provided that Seller's indemnity shall not include consequential
damages. Seller may in connection with any settlement of the Petition, agree to
allow the Successories of Texas Space Tenant to reduce or xxxxx the rental
payments under the Successories of Texas Space Lease affecting a period of time
not to exceed the Pad Term Purchaser agrees to reasonably cooperate with Seller
in the defense or settlement of the Petition and agrees not to adversely affect
Seller's defense of same in any manner, and Purchase agrees to execute an
amendment to such Space Lease reflecting any such rent reduction or abatement or
other reasonable provision. The provisions of this Article 17 shall survive
Closing."
5. The following shall be inserted as Article 18 of the Contract:
"Seller agrees to endeavor to repair the roofs at the Premises as
set forth in Schedule I annexed hereto (the "Roof Repairs") on or prior to
Closing but if not so fully repaired Purchaser shall, as its sole remedy,
receive a credit equal to the difference between (i) Thirty-five Thousand and
00/100 Dollars ($35,000.00) and (ii) the amount expended by Seller (as evidenced
by copies of invoices and paid receipts) in connection with the Roof Repairs
from the date hereof through and including the date of Closing, whereupon
Purchaser shall be responsible for completing any such incomplete repairs.
Notwithstanding the foregoing, in no event shall Seller be obligated to expend
more than Thirty-five Thousand and 00/100 Dollars ($35,000.00) on the Roof
Repairs."
6. The Escrow Agreement annexed to the Contract as EXHIBIT 14 shall
be deleted and the annexed EXHIBIT 14 inserted in lieu thereof.
7. Purchaser hereby acknowledges and agrees that (i) the Contract is
in full force and effect and (ii) Purchaser shall have no right to cancel the
Contract pursuant to Sections 9.3(a)(xii) and 12 of the Contract.
8. Section 9.4(a)(ii) of the Contract shall be amended to insert the
words ", provided, that, Purchaser shall have no obligation to collect
Additional Rent payable under the Xxxx Dress for Less Space Lease that relates
to 2003 and prior calendar years." after the word "Closing" at the end of the
third (3rd) sentence.
9. Section 14.2 of the Contract shall be amended to insert the words
"or any termination fee" after the word "rent" in the following parenthetical
"(and if Purchaser receives any rent from Space Tenants allocable to Master
Lease Space after the expiration of the Master Lease term attributable to the
Master Lease term, Purchaser shall promptly remit such amounts to Seller)."
10. The following shall be inserted as Article 19 of the Contract:
"Seller agrees to credit Purchaser, at Closing, Twenty-five
Thousand and 00/100 Dollars ($25,000.00) in connection with Purchaser's
relocation after the Closing of the West pylon sign, whereupon Purchaser shall
be responsible for all costs and expenses arising out of such relocation. Seller
agrees to credit Purchaser, at Closing, Forty-three Thousand Three Hundred
Twenty-seven and 00/100 Dollars ($43,327.00) in consideration of additional work
necessary to be performed by reason of the Proceeding."
11. Developers Diversified Realty Corporation agrees to use good
faith efforts to deliver to Purchaser's auditor an audit letter substantially in
the form annexed hereto as EXHIBIT A.
12. Except as modified by this Third Amendment, the Contract shall
remain unmodified and in full force and effect and is hereby ratified and
confirmed in all respects by Seller and Purchaser.
13. This Third Amendment may be executed in two or more counterparts
and each of such counterparts, for all purposes, shall be deemed to be an
original but all of such counterparts together shall constitute but one and the
same instrument, binding upon all parties hereto, notwithstanding that all of
such parties may not have executed the same counterpart. Facsimile signatures
shall be binding.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Amendment the day and year first above written.
SELLER:
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Person
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ G. Xxxxxx Xxxxxxx
--------------------------
Name: G. Xxxxxx Xxxxxxx
Title: President
As to Sections 4 and 14 of the Contract:
HERITAGE TITLE COMPANY, Escrowee
---------------------------------------------------------
As to Section 4 of the Contract:
CHICAGO TITLE INSURANCE COMPANY, Initial Escrowee
---------------------------------------------------------
As to Section 11 of this Third Amendment:
DEVELOPERS DIVERSIFIED REALTY CORPORATION
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx, Authorized Person
SCHEDULE H
TENANT: PEARLE VISION ALL BATTERY SUCCESSORIES SUPERCUTS
SPACE: 401 420 425 430
SQUARE FEET: 3,500 1,600 1,200 1,295 TOTAL
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BASE RENT/SQ. FT $ 34.50 $ 23.00 $ 22.00 $ 26.00
EXPENSE RECOVERY/SQ. FT $ 5.54 $ 5.76 $ 5.76 $ 5.76
------------------------------------------------------
TOTAL RENT/SQ. FT $ 40.04 $ 28.76 $ 27.76 $ 31.76
------------------------------------------------------------------
ANNUAL RENTAL PAYMENT $ 140,140 $ 46,016 $ 33,312 $ 47,129 $ 260,597
------------------------------------------------------------------
------------------------------------------------------------------
Monthly Rental Payment $ 11,678 $ 3,835 $ 2,776 $ 3,427 $ 21,716
==================================================================
SCHEDULE I
1. Replace the stained ceiling tiles at tenant space Pearle Vision.
2. Repair transition control joints at tilt walls at tenant spaces Lifeway
Christian and GameStop.
3. Repair transition control joints and perimeter flashing at tilt walls at
tenant space Petco.
4. Repair hole in roof membrane at roof scupper at tenant space Designer Shoe
Warehouse.
5. Repair transition control joints at tilt walls at tenant space Designer
Shoe Warehouse.
6. Repair transition control joints at tilt walls and roof scuppers at rear of
tenant space Xxxx Dress for Less.
EXHIBIT A
FORM OF AUDIT LETTER
[DATE]
KPMG LLP
Peat Marwick Plaza
000 X. Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We are writing you at your request to confirm our understanding that your audit
of the Historical Summary of Gross Income and Direct Operating Expenses
(Historical Summary) of DDRA Community Centers Four, L.P. (the "Partnership'),
owner of La Plaza Del Norte located in San Antonio, TX (the "Property") for the
twelve months ended December 31, 2003 was made for the purpose of expressing an
opinion as to whether the Historical Summary presents fairly, in all material
respects, the gross income and direct operating expenses in conformity with
accrual basis of accounting. In connection with your audit we confirm, to the
best of our knowledge and belief, the following representations during your
audit:
We have made available to you:
1. All financial records and related data.
There have been no:
2a. Meetings of the board of directors.
2b. Instances of fraud involving any member of management or employees
who have significant roles in internal control.
2c. Instances of fraud involving others that could have a material effect
on the Historical Summary.
2d. Violations or possible violations of laws or regulations, the effects
of which should be considered for disclosure in the Historical Summary or
as a basis for recording a loss contingency.
2e. Communications from regulatory agencies concerning non-compliance
with, or deficiencies in, financial reporting practices that could have a
material effect on the Historical Summary.
There are no:
3a. Unasserted claims or assessments that our lawyer(s) has (have)
advised us are probable of assertion and must be disclosed in accordance
with Statement of Financial
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Accounting Standards (SFAS) No. 5, Accounting for Contingencies.
3b. Material liabilities or gain or loss contingencies that are required
to be accrued or disclosed by SFAS No. 5.
3c. Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
3d. Events, other than the sale to Inland Western San Antonio Limited
Partnership and as otherwise disclosed in the audited financial
statements for the Partnership for the year ended December 31, 2003, that
have occurred subsequent to the balance sheet date and through the date
of this letter that would require adjustment to or disclosure in the
Historical Summary.
4. The Property has complied with all aspects of contractual agreements
that would have a material effect on the Historical Summary in the event
of noncompliance.
Further, we confirm that we are responsible for the fair presentation in the
Historical Summary of Gross Income and Direct Operating Expenses in conformity
with the accrual basis of accounting.
Sincerely,
DEVELOPERS DIVERSIFIED REALTY CORPORATION
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EXHIBIT 14
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
ESCROW AGREEMENT
This Escrow Agreement (this "AGREEMENT") is entered into as of January
__, 2004 by and between DDRA Community Centers Four, L.P. ("DDRA"),
[______________] ("Purchaser") and Heritage Title Company ("ESCROWEE").
RECITALS:
A. DDRA and Purchaser entered into a
contract of sale dated as of
December 23, 2003, as amended by a First Amendment to Contract dated as of
December 26, 2003, as amended by a Second Amendment to Contract dated as of
January 6, 2004 as amended by a Third Amendment to Contract dated as of January
___, 2004, (as amended, the "Contract") with respect to the sale of La Plaza Del
Norte located in San Antonio,
Texas (the "PROPERTY").
B. Pursuant to Article 14 of the Contract, at Closing (as defined in
the Contract), DDRA has agreed to enter into master leases (each a "MASTER
LEASE" and collectively, the "MASTER LEASES") with Purchaser for the space set
forth on Exhibit A annexed hereto existing at the Property.
C. Pursuant to Article 15 of the Contract, DDRA has agreed to be
responsible for certain rent payments (the "RENT PAYMENT") for the Space Tenants
set forth on Exhibit B annexed hereto.
NOW THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. All capitalized terms set forth herein shall have the meanings
ascribed to such terms in the Contract unless otherwise defined herein.
2. To fund DDRA's Master Lease obligations as to rent, leasing
commissions and tenant improvements, all as set forth in Section 14 of the
Contract, DDRA has on the date hereof deposited in escrow (the "MASTER LEASE
ESCROW") with Escrowee the amount (the "MASTER LEASE ESCROW AMOUNT") set forth
on Exhibit A annexed hereto. The Master Lease Escrow Amount shall be disbursed
by Escrowee subject to, and in accordance with, the terms and provisions of this
Paragraph 2.
A. The portion of the Master Lease Escrow Amount identified as
the sum of [_____________________] ($____________) is hereby referred to as the
Master Lease Rent Escrow. Purchaser shall receive a prorated credit from the
Master Lease Rent
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Escrow on the date of Closing for the rent attributable to the Master Lease
Space from the date of Closing through the end of the month in which Closing
occurs. Thereafter, Purchaser shall receive (and Escrow Agent is hereby
authorized to pay to Purchaser (subject to the terms of this Section 2(A)
without further direction from DDRA) monthly payments, on the fifth (5th) day of
each month (the "MONTHLY PAYMENT DATE"), for the applicable month's rent, from
the Master Lease Rent Escrow, in the sum of [_____] (prorated for any partial
months) (the "Rent Escrow Monthly Payment"). DDRA shall have the right to object
to any Rent Escrow Monthly Payment provided that DDRA sends written notice of
such objection to Purchaser and Escrowee on or before the third (3rd) day prior
to the applicable Monthly Payment Date ("RENTAL PAYMENT OBJECTION"). If Escrowee
does receive such Rental Payment Objection on or before the third (3rd) day
prior to the applicable Monthly Payment Date or if for any other reason Escrowee
in good faith shall elect not to make such payment, Escrowee shall forward a
copy of the Rental Payment Objection, if any, to Purchaser, and continue to hold
the applicable Rent Escrow Monthly Payment unless otherwise directed by written
instructions from the parties to this Agreement or by a judgment of a court of
competent jurisdiction. In any event, Escrowee shall have the right to refrain
from taking any further action with respect to the Master Lease Rent Escrow
until it is reasonably satisfied that such dispute is resolved or action by
Escrowee is required by an order or judgment of a court of competent
jurisdiction. Escrowee, by signing this Agreement at the end hereof where
indicated, signifies its agreement to hold the Master Lease Rent Escrow for the
purposes as provided in this Agreement.
B. (I) Beginning on the date hereof and continuing through and
including the date on which the term of the Master Leases expire pursuant to
Section 14 of the Contract (such period is hereinafter referred to as the
"MASTER LEASE ESCROW PERIOD"), Purchaser and/or DDRA may request (each such
request, a "DISBURSEMENT REQUEST", each such requesting party the "REQUESTING
PARTY" each such non-requesting party, the "NON-REQUESTING PARTY") by written
notice to Escrowee (with a copy of such request to the Non-Requesting Party),
that Escrowee disburse (each a "DISBURSEMENT") a portion of the Master Lease
Escrow Amount to the Requesting Party. Each such Disbursement Request shall
certify that the amount being requested is due to the Requested Party pursuant
to Article 14 of the Contract and shall include a reasonably detailed
description for which the Disbursement Request is being made, including a
stipulation as to the specific purpose of the Disbursement, being either rent,
leasing commissions or tenant improvements. On each Master Lease Rent
Termination Event, after receiving DDRA's Disbursement Request and subject to
Sections 2(B)(II) below, Escrowee is authorized and directed to deliver to DDRA
any unused portion of the Master Lease Escrow Amount (including any interest
earned thereon) allocable to the applicable space and DDRA shall be released
from all liability to Purchaser under Article 14 of the Contract and this
Agreement with respect to such space. Notwithstanding anything contained herein
to the contrary, Purchaser shall not be permitted to make a Disbursement Request
(pursuant to this Section 2(B)) with respect to the Master Lease Rent Escrow;
Section A above shall govern Purchaser's rights with respect to same.
(II) If Escrowee does not receive a written objection from
the Non-Requesting party to the proposed Disbursement within five (5) business
days after such demand is received by Escrowee and the Non-Requesting Party,
Escrowee is hereby authorized and directed to pay such Disbursement to the
Requesting Party. If Escrowee does receive such written objection within such
five (5) business day period or if for any other reason Escrowee in
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good faith shall elect not to make such payment, Escrowee shall forward a copy
of the objections, if any, to the Requesting Party, and continue to hold the
Disbursement unless otherwise directed by written instructions from the parties
to this Agreement or by a judgment of a court of competent jurisdiction. In any
event, Escrowee shall have the right to refrain from taking any further action
with respect to the Master Lease Escrow until it is reasonably satisfied that
such dispute is resolved or action by Escrowee is required by an order or
judgment of a court of competent jurisdiction. Escrowee, by signing this
Agreement at the end hereof where indicated, signifies its agreement to hold the
Master Lease Escrow Amount for the purposes as provided in this Agreement.
3. To fund DDRA's Rent Payment obligations, as set forth in Section
15 of the Contract, DDRA has on the date hereof deposited in escrow the Pad
Escrow with Escrowee the amount (the "PAD ESCROW AMOUNT") set forth on Exhibit B
annexed hereto. The Pad Escrow Amount shall be disbursed by Escrowee subject to,
and in accordance with, the terms and provisions of this Paragraph 3.
A. (I) Beginning after _______ [the fifteenth (15) day of the
first full month of the Pad Term] and continuing through and including _________
[the date on which the Pad Term expires pursuant to Section 15 of the Contract]
(such period is hereinafter referred to as the "PAD ESCROW PERIOD"), Purchaser
may make a Rent Payment request (each such request, a "RENT PAYMENT REQUEST") by
written notice to Escrowee (with a copy of such request to DDRA), that Escrowee
pay (each a "PAYOUT") a portion of the Pad Escrow Amount to Purchaser. Each such
Rent Payment Request shall certify that the amount being requested is due to
Purchaser pursuant to Article 15 of the Contract and shall include a reasonably
detailed description of all rent received (as of such date) by Purchaser for or
from such Pad Tenant. During the Second Period, Escrowee is authorized and
directed to deliver to DDRA the balance of the Pad Escrow Amount (including any
interest earned thereon) for a particular month and Pad Tenant immediately after
the earlier of (i) Purchaser's Pad Escrow withdrawal for such month and Pad
Tenant or (ii) ten (10) days after the applicable Withdrawal Date. Upon the
expiration of the Pad Escrow Period, Escrowee shall distribute to Seller the
balance of the Pad Escrow, if any, and Seller shall be released from all
liability to Purchaser under Article 15 of the Contract and this Agreement.
(II) If Escrowee does not receive a written objection from
DDRA to the proposed Payout within five (5) business days after such demand is
received by Escrowee and DDRA, Escrowee is hereby authorized and directed to pay
such Payout to the Purchaser. If Escrowee does receive such written objection
within such five (5) business day period or if for any other reason Escrowee in
good faith shall elect not to make such payment, Escrowee shall forward a copy
of the objections, if any, to the Purchaser, and continue to hold the Payout
unless otherwise directed by written instructions from the parties to this
Agreement or by a judgment of a court of competent jurisdiction. In any event,
Escrowee shall have the right to refrain from taking any further action with
respect to the Pad Escrow until it is reasonably satisfied that such dispute is
resolved or action by Escrowee is required by an order or judgment of a court of
competent jurisdiction. Escrowee, by signing this Agreement at the end hereof
where indicated, signifies its agreement to hold the Pad Escrow Amount for the
purposes as provided in this Agreement.
-12-
4. In the event of any dispute, Escrowee shall have the right to
deposit the Master Lease Escrow Amount and/or the Pad Escrow Amount in court to
await the resolution of such dispute. Escrowee shall not incur any liability by
reason of any action or non-action taken by it in good faith or pursuant to the
judgment or order of a court of competent jurisdiction. Escrowee shall have the
right to rely upon the genuineness of all certificates, notices and instruments
delivered to it pursuant hereto, and all the signatures thereto or to any other
writing received by Escrowee purporting to be signed by any party hereto, and
upon the truth of the contents thereof.
5. On or before the tenth (10th) day of each calendar month during
the Master Lease Escrow Period and/or the Pad Escrow Period, Escrowee shall
provide Purchaser and DDRA with a written report of the Master Lease Escrow and
the Pad Escrow, showing (i) Disbursements and Payouts from the Master Lease
Escrow and Pad Escrow made in the prior calendar month, (ii) the balance
remaining in the Master Lease Escrow and Pad Escrow as of the date of the
report, and (iii) interest accrued on the Master Lease Escrow Amount and Pad
Escrow Amount during the prior calendar month.
6. Escrowee shall invest and reinvest the proceeds of the Master
Lease Escrow Amount and the Pad Escrow Amount and any interest earned thereon,
in an interest bearing bank money market account(s) as Purchaser shall direct
and as is reasonably acceptable to DDRA. The Master Lease Escrow Amount and Pad
Escrow Amount shall be held with the national bank of either X.X. Xxxxxx Xxxxx
Bank or Bank of America.
7. Escrowee shall be entitled to consult with counsel in connection
with its duties hereunder. Purchaser and DDRA, jointly and severally, agree to
reimburse Escrowee, upon demand, for the reasonable costs and expenses, and in
the event of a dispute, attorneys' fees incurred by Escrowee in connection with
its acting in its capacity as Escrowee. Escrowee shall not be liable for its
actions that may result in errors except for its own gross negligence or willful
misconduct. This Agreement shall terminate and be of no further force or effect
upon the full and final disbursement of the funds held hereby.
8. In the event of a breach by Purchaser or DDRA of any of the
provisions of this Agreement, the non-breaching party shall have all remedies
available to it at all law or in equity based on such default other than
consequential or punitive damages.
9. All notices hereunder shall be sent by certified or registered
mail, return receipt requested, or may be sent by Federal Express or other
national overnight courier which obtains a signature upon delivery, or may be
delivered by hand delivery addressed to the notice parties identified below for
such party or at such other addresses as such party shall designate from time to
time by notice:
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DDRA:
c/o DRA Advisors LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
with a copy to:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: [__________________]
with a copy to:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X'Xxxxxx, Esq.
PURCHASER:
Inland [__________,_____]
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxx
Facsimile: 000-000-0000 and 000-000-0000
with a copy to:
The Inland Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxx, General Counsel
Facsimile: 630-218-4900 and 000-000-0000
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ESCROWEE:
Heritage Title Company
__________________
__________________
__________________
Attention: ___________
Notices shall be deemed served three (3) days after mailing, and in the case of
overnight courier on the date actually delivered to or rejected by the intended
recipient, except for notice(s) which advise the other party of a change of
address of the party sending such notice, which notice shall not be deemed
served until actually received by the party to whom such notice is addressed or
delivery is refused by such party. Notices served by hand delivery shall be
deemed served on the date actually delivered to or rejected by the intended
recipient if delivered or rejected at or prior to 5:00 P.M. Eastern Time on a
business day and on the next business day if delivered or rejected after 5:00
P.M. Eastern Time on a business day or at any time on a non -business day.
Notices on behalf of the respective parties may be given by their attorneys and
such notices shall have the same effect as if in fact subscribed by the party on
whose behalf it is given.
10. This Agreement may not be assigned by either party without the
written consent of the other party. Any purported assignment of this Agreement
in violation of this paragraph shall be null and void.
11. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. None of the provisions of this
Agreement are intended to be, nor shall they construed to be, for the benefit of
any third party.
12. This Agreement, the Exhibits annexed hereto and the Contract
shall constitute the entire agreement between the parties hereto with respect to
the subject matter hereof, and all understandings and agreements heretofore or
simultaneously had between the parties hereto are merged in and are contained in
this Agreement, the Exhibits annexed hereto and the Contract.
13. The provisions of this Agreement may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by the
party against which any waiver, change, modification or discharge is sought.
14. If a party is required to perform an act or give a notice on a
date that is a Saturday, Sunday or national holiday, the date such performance
or notice is due shall be deemed to be the next business day.
15. This Agreement is to be governed and construed in accordance with
the laws of the State of New York. Purchaser, DDRA and Escrowee hereby submit to
the jurisdiction of the State and United States District courts located within
New York in respect of any suit or other proceeding brought in connection with
or arising out of this Agreement. Any
-15-
legal suit, action or proceeding arising out of or relating to this Agreement
may be instituted in any federal or state court in the City of New York, County
of New York pursuant to Section 5-1402 of the New York General Obligations Law
and Purchaser, DDRA and Escrowee waive any objection which they may now or
hereafter have based on venue and/or forum non conveniens of any such suit
action or proceeding, and Purchaser, DDRA and Escrowee hereby irrevocably submit
to the jurisdiction of any such court in any suit, action or proceeding.
16. This Agreement may be executed in two or more counterparts and
each of such counterparts, for all purposes, shall be deemed to be an original
but all of such counterparts together shall constitute but one and the same
instrument, binding upon all parties hereto, notwithstanding that all of such
parties may not have executed the same counterpart.
17. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination will
not effect the remaining provisions of this Agreement, all of which will remain
in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
-16-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement the day
and year first above written.
DDRA:
DDRA COMMUNITY CENTERS FOUR, L.P., a
Texas limited
partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited liability
company, its general partner
By: DD SAN XXXXX CORP., a
Texas corporation, its
member
By:
-----------------------------------
Name:
Title:
PURCHASER:
By:
---------------------------------
Name:
Title:
ESCROWEE:
HERITAGE TITLE COMPANY, AS AGENT FOR CHICAGO
TITLE INSURANCE COMPANY
By:
------------------
Name:
Title:
EXHIBIT A
MASTER LEASE TENANTS AND ESCROW
EXHIBIT B
PAD TENANTS AND ESCROW
SECOND AMENDMENT TO
CONTRACT OF SALE
THIS SECOND AMENDMENT (this "SECOND AMENDMENT") dated as of January
__, 2004 by and between DDRA COMMUNITY CENTERS FOUR, L.P., having an address c/o
DRA Advisors LLC, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("SELLER") and INLAND REAL ESTATE ACQUISITION, INC., 0000 Xxxxxxxxxxx Xxxx, Xxx
(Xxxxx, Xxxxxxxx 00000 ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser have entered into a
Contract of Sale,
dated December 23, 2003, as amended by a First Amendment to Contract dated as of
December 26, 2003 (as amended, the "CONTRACT") with respect to the Premises (as
defined in the Contract); and
WHEREAS, the parties wish to amend the Contact.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which the parties hereby acknowledge, the parties agree as follows:
1. All capitalized terms set forth herein shall have the meanings
ascribed to such terms in the Contract unless otherwise defined herein.
2. The Outside Termination Date is hereby extended to January 15,
2004, time being of the essence.
3. The first sentence of Section 9.1 of the Contract is hereby
deleted and the following inserted in lieu thereof:
"Subject to the adjournments expressly allowed elsewhere in this
Contract, the closing of title (the "CLOSING") shall take place, time being of
the essence at 9:30 AM Eastern Time, on January 22, 2004."
4. Except as modified by this Second Amendment, the Contract shall
remain unmodified and in full force and effect and is hereby ratified and
confirmed in all respects by Seller and Purchaser.
5. This Second Amendment may be executed in two or more counterparts
and each of such counterparts, for all purposes, shall be deemed to be an
original but all of such counterparts together shall constitute but one and the
same instrument, binding upon all parties hereto, notwithstanding that all of
such parties may not have executed the same counterpart. Facsimile signatures
shall be binding.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment the day and year first above written.
SELLER:
DDRA COMMUNITY CENTERS FOUR, L.P., a
Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Person
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ Xxxxx X Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
As to Sections 4 and 14 of the Contract:
HERITAGE TITLE COMPANY, Escrowee
------------------------------------------
As to Section 4 of the Contract:
CHICAGO TITLE INSURANCE COMPANY, Initial Escrowee
/s/ Xxxxxxxx Kimmers
------------------------------------------
FIRST AMENDMENT TO
CONTRACT OF SALE
THIS FIRST AMENDMENT (this "FIRST AMENDMENT") dated as of December __,
2003 by and between DDRA COMMUNITY CENTERS FOUR, L.P., having an address c/o DRA
Advisors LLC, 000 Xxxx 00xx Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("SELLER") and INLAND REAL ESTATE ACQUISITION, INC., 0000 Xxxxxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxx 00000 ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser have entered into a
Contract of Sale,
dated December 23, 2003 (the "CONTRACT") with respect to the Premises (as
defined in the Contract); and
WHEREAS, the parties wish to amend the Contract.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which the parties hereby acknowledge, the parties agree as follows:
1. All capitalized terms set forth herein shall have the meanings
ascribed to such terms in the Contract unless otherwise defined herein.
2. The Outside Termination Date is hereby extended to January 8,
2004, time being of the essence.
3. Except as modified by this First Amendment, the Contract shall
remain unmodified and in full force and effect and is hereby ratified and
confirmed in all respects by Seller and Purchaser.
4. This First Amendment may be executed in two or more counterparts
and each of such counterparts, for all purposes, shall be deemed to be an
original but all of such counterparts together shall constitute but one and the
same instrument, binding upon all parties hereto, notwithstanding that all of
such parties may not have executed the same counterpart Facsimile signatures
shall be binding.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment the day and year first above written.
SELLER:
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Person
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ G. Xxxxxx Xxxxxxx
------------------------
Name: G. Xxxxxx Xxxxxxxx
Title: President
As to Sections 4 and 14:
HERITAGE TITLE COMPANY, Escrowee
/s/ Xxxxxx Xx Xxxxxxxx
---------------------------------------------------
[ILLEGIBLE] Sr, V.P.
As to Section 4:
CHICAGO TITLE INSURANCE COMPANY, Initial Escrowee
/s/ Xxxxx Xx Xxxxxx
---------------------------------------------------
CONTRACT OF SALE
BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P.
================================================================================
SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC.
PURCHASER
PREMISES: XX XXXXX XXX XXXXX XXXXXXXX XXXXXX
XXX XXXXXXX, XXXXX
DATED: DECEMBER 23, 2003
================================================================================
INDEX TO
CONTRACT OF SALE
BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
PAGE
1. Definitions..............................................................1
2. Subject of Sale..........................................................5
3. Purchase Price...........................................................5
4. Deposit Provisions.......................................................6
5. "As-Is" "Where Is".......................................................7
6. Representations..........................................................8
6.1 Seller's Representations.........................................8
6.2 Knowledge........................................................9
6.3 Update and Survival.............................................10
6.4 Liability for Misrepresentations................................10
6.5 Purchaser's Representations.....................................11
7. Ongoing Operations......................................................11
7.1 Leasing Practice................................................11
7.2 Personal Property and Equipment.................................13
7.3 Employees.......................................................13
7.4 Development Rights..............................................13
7.5 Tax Protest Proceedings.........................................13
7.6 Operation and Maintenance.......................................13
7.7 Accounting......................................................13
8. Title ................................................................13
8.1 Title Commitment................................................13
8.2 Status of Title.................................................14
8.3 Non-Permitted Title Objections..................................14
9. Closing ................................................................15
9.1 Closing Date and Location.......................................15
9.2 Closing Expenses................................................15
9.3 Closing Deliveries..............................................16
9.4 Apportionments and Reimbursements...............................19
9.5 Closing Condition...............................................23
10. Default ................................................................23
10.1 Purchaser's Default.............................................23
10.2 Seller's Default................................................24
INDEX TO
CONTRACT OF SALE
BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
CONTINUED
PAGE
11. Risk of Loss............................................................24
11.1 Condemnation....................................................24
11.2 Destruction or Damage...........................................24
12. Purchaser's Review Period...............................................25
13. Miscellaneous...........................................................26
13.1 Broker..........................................................26
13.2 Assignment of this Contract.....................................26
13.3 Attorneys' Fees.................................................27
13.4 Notices.........................................................27
13.5 Further Assurances..............................................28
13.6 Confidentiality.................................................28
13.7 Survival and Merger.............................................29
13.8 Recording.......................................................29
13.9 Successors and Assigns..........................................29
13.10 Entire Agreement................................................29
13.11 Waiver and Modifications........................................30
13.12 Captions and Titles.............................................30
13.13 Construction....................................................30
13.14 Non-Business Days...............................................30
13.15 Governing Law and Jurisdiction..................................30
13.16 Counterparts....................................................30
13.17 No Third Party Benefits.........................................30
13.18 Submission not an Offer.........................................30
13.19 Severability....................................................30
14. Master Lease............................................................30
Schedule A Description of Property
Schedule B "Subject To" Provisions
Schedule C List of Space Leases
Schedule D Service Contracts
Schedule E Pending Litigation
Schedule F Master Lease Guidelines
Schedule G Leasing Parameters
-ii-
INDEX TO CONTRACT OF SALE
BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
CONTINUED
PAGE
Exhibit 1 Form of Deed to the Premises
Exhibit 2 Form of Assignment of the Space Leases
Exhibit 3 Form of Assignment of the Service Contracts
Exhibit 4 Form of Assignment of Licenses, Permits, Guarantees and Warranties
Exhibit 5 Form of Notice to the Space Tenants
Exhibit 6 Form of Notice of Assignment of the Service Contracts
Exhibit 7 Form of Tenant Estoppel Certificate
Exhibit 8 Form of Xxxx of Sale
Exhibit 9 Intentionally Deleted
Exhibit 10 Form of Title Certificate
Exhibit 11 Form of Seller's Estoppel Certificate
Exhibit 12 REA Estoppel Certificate
Exhibit 13 Guarantor Estoppel Certificate
Exhibit 14 Escrow Agreement
-iii-
CONTRACT (this "CONTRACT") made this 23rd day of December , 2003 by
and between DDRA COMMUNITY CENTERS FOUR, L.P., c/o DRA Advisors LLC, having an
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("SELLER") and INLAND
REAL ESTATE ACQUISITIONS, INC. having an address at 0000 Xxxxxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxx 00000 ("PURCHASER").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, upon the terms and conditions hereinafter set forth, Seller
agrees to sell and convey fee title to that certain parcel of land described on
Schedule A annexed hereto with the improvements erected thereon (which parcel of
land and the improvements erected thereon are herein referred to collectively as
the "PROPERTY") to Purchaser and Purchaser agrees to purchase the Property.
NOW, THEREFORE, intending to be legally bound hereby, the parties
agree as follows:
1. DEFINITIONS. The terms defined in this Article shall for all
purposes of this Contract have the meanings herein specified unless the context
requires otherwise.
1.1 "Access Agreement" shall have the meaning ascribed to it
in Section 12.1.
1.2 "Additional Rents" shall have the meaning ascribed to it
in Section 9.4(a).
1.3 "Broker" shall have the meaning ascribed to it in Section
13.1.
1.4 "Business Day" shall mean any day other than a Saturday,
Sunday or day on which the banks in New York are authorized or permitted to be
closed.
1.5 "Casualty" shall have the meaning ascribed to it in
Section 11.2.
1.6 "Casualty Termination Event" shall have the meaning
ascribed to it in Section 11.2.
1.7 "Claims & Liabilities" shall have the meaning ascribed to
it in Section 5.2.
1.8 "Closing" shall have the meaning ascribed to it in Section
9.1.
1.9 "Closing Date" shall have the meaning ascribed to it in
Section 9.1.
1.10 "Contract" shall have the meaning ascribed to it in the
introductory paragraph.
1.11 "Current Master Lease Space" shall have the meaning
ascribed to it in Section 14.1.
1.12 "Deposit" shall have the meaning ascribed to it in Section
3.1(a).
1.13 "Escrowee" shall have the meaning ascribed to it in
Section 3.1(b).
1.14 "Estoppel Certificate(s)" shall have the meaning ascribed
to it in Section 9.3(a)(xii).
1.15 "Estoppel Default" shall have the meaning ascribed to it
in Section 9.3(a)(xii).
1.16 "Estoppel Tenants" shall have the meaning ascribed to it
in Section 9.3(a)(xii).
1.17 "Evaluation Material" shall have the meaning ascribed to
it in Section 13.6(a).
1.18 "Excess Rent" shall have the meaning ascribed to it in
Section 9.4(a)(i)(G).
1.19 "Existing Space Leases" shall have the meaning ascribed
to it in Section 6.1(d).
1.20 "Existing Space Tenants" shall have the meaning ascribed
to it in Section 6.1(d).
1.21 "Future Master Lease Space" shall mean any space at the
Premises occupied, as of the date hereof, by a Space Tenant which is less than
12,000 square feet and, which has, as of the Closing Date,: (i) commenced a case
under Title 11 USC section 101, et. sec., as now constituted and hereafter
amended which is not dismissed prior to the date scheduled for Closing (unless
the Space Tenant assumes its Space Lease); (ii) (A) defaulted under its Space
Lease for nonpayment of rent (which default continues beyond any applicable
grace period) and (B) vacated its premises or (iii) terminated its Space Lease
pursuant to its terms.
1.22 "Guarantor Estoppel Certificate" shall have the meaning
ascribed to it in Section 9.3(a)(xii).
1.23 "Initial Escrowee" shall have the meaning ascribed to it
in Section 3.1(a).
1.24 "Leasing Escrow" shall have the meaning ascribed to it in
Section 14.2
1.25 "Master Lease" shall have the meaning ascribed to it in
Section 14.1.
1.26 "Master Lease Escrows" shall have the meaning ascribed to
it in Section 14.2.
-2-
1.27 "Master Lease Landlord" shall have the meaning ascribed to
it in Section 14.1.
1.28 "Master Lease Rent Escrow" shall have the meaning ascribed
to it in Section 14.2.
1.29 "Master Lease Rent Payment" shall have the meaning
ascribed to it in Section 14.2.
1.30 "Master Lease Rent Termination Event" shall have the
meaning ascribed to it in Section 14.3.
1.31 "Master Lease Spaces" shall have the meaning ascribed to
it in Section 14.1.
1.32 "Master Lease Tenant" shall have the meaning ascribed to
it in Section 14.1.
1.33 "Maximum Representation Expense" shall have the meaning
ascribed to it in Section 6.4(b).
1.34 "Maximum Title Expense" shall have the meaning ascribed to
it in Section 8.3(b).
1.35 "New Leases" shall have the meaning ascribed to it in
Section 7.1(a).
1.36 "Non-Permitted Title Objections" shall have the meaning
ascribed to it in Section 8.3(a).
1.37 "Outside Termination Date" shall have the meaning ascribed
to it in Section 12.1.
1.38 "Permitted Exceptions" shall have the meaning ascribed to
it in Section 8.2.
1.39 "Preliminary Proration Statement" shall have the meaning
ascribed to it in Section 9.4(a)(i).
1.40 "Premises" shall have the meaning ascribed it in Section
2.2.
1.41 "Proceeding" shall have the meaning ascribed to it in
Section 5.1.
1.42 "Property" shall have the meaning ascribed to it in the
"WHEREAS" paragraph in this Contract.
1.43 "Purchase Price" shall have the meaning ascribed to it in
Section 3.
-3-
1.44 "Purchaser" shall have the meaning ascribed to it in the
introductory paragraph.
1.45 "Purchaser's Review Period" shall have the meaning
ascribed to it in Section 12.1.
1.46 "Related Parties" shall have the meaning ascribed to it in
Section 13.6(b).
1.47 "Released Parties" shall have the meaning ascribed to it
in Section 5.2.
1.48 "Seller" shall have the meaning ascribed to it in the
introductory paragraph.
1.49 "Seller's Estoppel" shall have the meaning ascribed to it
in Section 9.3(a)(xii).
1.50 "Seller's 2004 Actual Operating Expenses" shall have the
meaning ascribed to it in Section 9.4(b).
1.51 "Service Contracts" shall have the meaning ascribed to it
in Section 6.1(g).
1.52 "Space Leases" shall have the meaning ascribed to it in
Section 7.1.(a).
1.53 "Space Tenants" shall have the meaning ascribed to it in
Section 7.1(a).
1.54 "Substantial Portion" shall have the meaning ascribed to
it in Section 11.1(b).
1.55 "Supplemental Proration Statement" shall have the meaning
ascribed to it in Section 9.4(b).
1.56 "Survey" shall have the meaning ascribed to it in Section
8.1.
1.57 "Taking" shall have the meaning ascribed to it in Section
11.1(a).
1.58 "Tenant Improvement Escrow" shall have the meaning
ascribed to it in Section 14.2.
1.59 "Title Commitment" shall have the meaning ascribed to it
in Section 8.1.
1.60 "Title Company" shall have the meaning ascribed to it in
Section 8.1.
-4-
1.61 "Title Objection Date" shall have the meaning ascribed to
it in Section 8.1.
1.62 "Transfer Tax" shall have the meaning ascribed to it in
Section 9.2(a).
1.63 "Violations" shall have the meaning ascribed to it in
Section 5.1.
2. SUBJECT OF SALE.
2.1 Seller agrees to sell and convey to Purchaser the Premises
and Purchaser agrees to purchase from Seller the Premises subject to the terms
and conditions contained in this Contract.
2.2 This sale includes all right, title and interest, if any,
of Seller in and to: (a) the Property; (b) any land lying in the bed of any
street, road or avenue opened or proposed, adjacent to the Property, to the
center line thereof; and Seller will execute and deliver to the Purchaser at the
Closing, or thereafter, on demand, all proper instruments for the conveyance to
such title; (c) fixtures, equipment and other personal property attached to or
beneath the Property and not owned by the Space Tenants or a governmental
entity, if any, but no part of the Purchase Price shall be deemed to be paid for
such fixtures, equipment or personal property; (d) rights of way, appurtenances,
easements, sidewalks, alleys, gores or strips of land adjoining or appurtenant
to the Property and used in connection therewith; (e) trade names (including the
name "La Plaza Del Norte") and any other intangible personal property used in
connection with the operation of the Property; and (f) the interest of landlord
in the Space Leases ((a) through (f) herein referred to collectively as the
"PREMISES").
3. PURCHASE PRICE.
3.1 The purchase price (the "PURCHASE PRICE") for the Premises
is the sum of FIFTY-NINE MILLION ONE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED
DOLLARS AND 00/100 ($59,143,200.00) payable by Purchaser to Seller as follows:
(a) On the signing of this Contract, ONE MILLION TWO
HUNDRED THOUSAND DOLLARS AND 00/100 ($1,200,000.00) (said sum together with
interest earned thereon is hereinafter called the "DEPOSIT"). The Deposit shall
be made by electronic wire transfer of immediately available federal funds to an
account designated by Chicago Title Insurance Company, attention: Xxxxx Xxxxxx,
Senior Escrow Officer, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("INITIAL
ESCROWEE") or by certified check of Purchaser or bank teller's check to the
order of Initial Escrowee. In the event any check in payment of the Deposit is
cancelled or returned uncollected, Seller, at its sole option, may cancel this
Contract and/or pursue any legal remedies Seller may have against Purchaser on
such check at the sole expense of Purchaser, such remedies being cumulative and
not exclusive. Purchaser acknowledges and agrees that, unless it terminates this
Contract in accordance with Section 12.1, on the first Business Day following
the Outside Termination Date, the Deposit shall be transferred to an account
designated by Escrowee and Escrowee shall, from and after the Outside
Termination Date, hold the Deposit in accordance with the terms of this
Contract.
-5-
(b) On the Closing Date, the sum of FIFTY-SEVEN MILLION
NINE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED DOLLARS AND 00/100
($57,943,200.00) subject to adjustment pursuant to Sections 9.4, to be paid by
electronic wire transfer of immediately available federal funds pursuant to
wiring instructions to be given by Heritage Title Company ("ESCROWEE") or as
Escrowee may direct to Purchaser prior to the Closing and Purchaser shall cause
Escrowee to distribute such funds to Seller in accordance with this Contract.
4. DEPOSIT PROVISIONS.
4.1 Unless Purchaser terminates this Contract in accordance
with Section 12.1, on the first Business Day following the Outside Termination
Date, Initial Escrowee is authorized and directed to pay the Deposit to
Escrowee. Upon the Closing, Escrowee is authorized and directed to pay the
Deposit to Seller (or as Seller may direct) upon payment of the Purchase Price
by Purchaser to Seller or Escrowee on behalf of Seller.
4.2 In the event Purchaser should default under this Contract,
Initial Escrowee or Escrowee (as applicable) shall pay the Deposit to Seller,
who shall retain the Deposit in accordance with Section 10.1 below.
4.3 In the event this Contract is terminated by reason other
than Purchaser's default, Initial Escrowee or Escrowee (as applicable) shall pay
the Deposit to Purchaser.
4.4 Initial Escrowee and Escrowee (as applicable) shall invest
and reinvest the proceeds of the Deposit, and any interest earned thereon, in
United States Government Treasury Bills or Certificate(s) of Deposit or bank
money market account(s) as Purchaser shall direct and as is reasonably
acceptable to Seller. The party entitled to receive the interest earned on the
Deposit shall pay all income taxes owed in connection therewith. The employer
identification numbers of Seller and Purchaser are respectively set forth on the
signature page hereof.
4.5 Initial Escrowee and Escrowee, by signing this Contract at
the end hereof where indicated, signifies its agreement to hold the Deposit for
the purposes as provided in this Contract. In the event of any dispute, Initial
Escrowee and Escrowee (as applicable) shall have the right to deposit the
Deposit in court to await the resolution of such dispute. Initial Escrowee and
Escrowee shall not incur any liability by reason of any action or non-action
taken by it in good faith or pursuant to the judgment or order of a court of
competent jurisdiction. Initial Escrowee and Escrowee shall have the right to
rely upon the genuineness of all certificates, notices and instruments delivered
to it pursuant hereto, and all the signatures thereto or to any other writing
received by Initial Escrowee and Escrowee purporting to be signed by any party
hereto, and upon the truth of the contents thereof.
4.6 Except as otherwise provided for in Sections 4.1 and 12.1,
Initial Escrowee and Escrowee (as applicable) shall not pay or deliver the
Deposit to any party unless written demand is made therefor by (i) joint order
of Purchaser and Seller or (ii) an order or judgment of a court of competent
jurisdiction and a copy of such written demand is delivered to Initial Escrowee
or Escrowee (as applicable).
-6-
4.7 Initial Escrowee and Escrowee shall be entitled to consult
with counsel in connection with its duties hereunder. Seller and Purchaser,
jointly and severally, agree to reimburse Initial Escrowee and Escrowee, upon
demand, for the reasonable costs and expenses including attorneys' fees incurred
by Initial Escrowee and Escrowee in connection with its acting in its capacity
as Initial Escrowee and Escrowee (as applicable). In the event of litigation
relating to the subject matter of the escrow, whichever of Seller or Purchaser
is not the prevailing party shall reimburse the prevailing party for any costs
and fees paid by the prevailing party or paid from the escrowed funds to Initial
Escrowee or Escrowee (as applicable).
5. "AS-IS". "WHERE IS".
5.1 Purchaser acknowledges and agrees that (a) Purchaser has,
or will have prior to the expiration of Purchaser's Review Period, independently
examined, inspected, and investigated to the full satisfaction of Purchaser, the
physical nature and condition of the Premises, including, without limitation the
pending condemnation suits under Case Numbers 2002ED0005, 2002ED0028 and
2002ED0053 (collectively, the "Proceeding") and its environmental condition, and
the income, operating expenses and carrying charges affecting the Premises, (b)
except as expressly set forth in this Contract, neither Seller nor any agent,
officer, employee, or representative of Seller has made any representation
whatsoever regarding the subject matter of this Contract or any part thereof,
including (without limiting the generality of the foregoing) representations as
to the physical nature or environmental condition of the Premises, the existence
or non-existence of petroleum, asbestos, lead paint, fungi, including mold, or
other microbial contamination, hazardous substances or wastes, underground or
above ground storage tanks or any other environmental hazards on, under or about
the Property, the Space Leases, operating expenses or carrying charges affecting
the Premises, the compliance of the Premises or its operation with any laws,
rules, ordinances or regulations of any applicable governmental or
quasi-governmental authority or the habitability, merchantability,
marketability, profitability or fitness of the Premises for any purpose and (c)
except as expressly set forth in this Contract, Purchaser, in executing,
delivering and performing this Contract, does not rely upon any statement,
offering material, operating statement, historical budget, engineering
structural report, any environmental reports, information, or representation to
whomsoever made or given, whether to Purchaser or others, and whether directly
or indirectly, orally or in writing, made by any person, firm or corporation
except as expressly set forth herein, and Purchaser acknowledges that any such
statement, information, offering material, operating statement, historical
budget, report or representation, if any, does not represent or guarantee future
performance of the Premises. Without limiting the foregoing, but in addition
thereto, except as otherwise expressly set forth in Section 6.1 of this
Contract, Seller shall deliver, and Purchaser shall take, subject to Purchaser's
right to cancel this Contract on or before the Outside Termination Date as set
forth in Section 12.1, the Premises in its "as is" "where is" condition and with
all faults on the Closing Date, including without limitation, the Proceeding and
any notes or notices or violations of law or municipal ordinances, orders or
requirements imposed or issued by any governmental or quasi-governmental
authority having or asserting jurisdiction, against or affecting the Premises
and any conditions which may result in violations (collectively, "Violations").
The provisions of this Section shall survive the Closing or the earlier
termination of this Contract.
5.2 Except as set forth in this Contract and except for Claims
& Liabilities resulting solely from a misrepresentation by Seller under Section
6.1 of this Contract
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(to the extent same survives the Closing), Purchaser hereby waives, releases and
forever discharges Seller, its affiliates, subsidiaries, officers, directors,
shareholders, employees, independent contractors, partners, representatives,
agents, successors and assigns (collectively the "Released Parties"), and each
of them, from any and all causes of action, claims, assessments, losses, damages
(compensatory, punitive or other), liabilities, obligations, reimbursements,
costs and expenses of any kind or nature, actual contingent, present, future,
known or unknown, suspected or unsuspected, including, without limitation,
interest, penalties, fines, and attorneys' and experts' fees and expenses
(collectively, "Claims & Liabilities"), whether caused by, arising from, or
premised, in whole or in part, upon Seller's acts or omissions, and
notwithstanding that such acts or omissions are negligent or intentional, or
premised in whole or in part of any theory of strict or absolute liability,
which Purchaser, its successors or assigns or any subsequent purchaser of the
Premises may have or incur in any manner or way connected with, arising from, or
related to the Premises, including without limitation (i) the environmental
condition of the Premises, or (ii) actual or alleged violations of environmental
laws or regulations in connection with the Premises and/or any property
conditions. Purchaser agrees, represents and warrants that the matters released
herein are not limited to matters which are known, disclosed, suspected or
foreseeable, and Purchaser hereby waives any and all rights and benefits which
it now has, or in the future may have, conferred upon Purchaser by virtue of the
provisions of any law which would limit or detract from the foregoing general
release of known and unknown claims.
6. REPRESENTATIONS.
6.1 SELLER'S REPRESENTATIONS. Seller represents that as of the
date hereof:
(a) Seller is, and at the Closing shall be, a limited
partnership under the laws of the State of Texas. Seller has the right, power
and authority to make and perform its obligations under this Contract without
the need for governmental approval, consent or filing.
(b) (i)The execution, delivery and performance of this
Contract in accordance with its terms, do not violate the limited partnership
agreement of Seller, or any contract, agreement, commitment, order, judgment or
decree to which Seller is a party or by which it is bound; (ii) Seller has the
right, power and authority to make and perform its obligations under this
Contract; and (iii) this Contract is a valid and binding obligation of Seller
enforceable against Seller in accordance with its terms.
(c) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended.
(d) The leases described on Schedule C annexed hereto
(such leases are herein called the "EXISTING SPACE LEASES" and the lessees
thereunder are herein called the "EXISTING SPACE TENANTS"), true, correct and
complete copies of which have been delivered or made available to Purchaser,
constitute the only leases, licenses or other written agreements for the use or
occupancy of the Premises to which Seller is a party and which will be binding
on Purchaser following the Closing, except as may otherwise be set forth in the
Permitted
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Exceptions. Except as set may be forth in Schedule C annexed hereto, the
Existing Space Leases are in full force and effect.
(e) The information on the rent roll attached hereto as
Schedule C is true and correct in all material respects.
(f) Except as may be set forth in its Space Lease, no
Existing Space Tenant has made rent payments to Seller in advance for more than
one (1) month (exclusive of security deposits).
(g) Set forth on Schedule D is a true, correct and
complete list of the service contracts (the "SERVICE CONTRACTS") which may be
binding on Purchaser or the Property after the Closing. Seller does not
guarantee or undertake that any of the Service Contracts will be in effect as of
the Closing. Seller reserves the right to modify, terminate or enter into new
Service Contracts prior to Closing provided such new service contracts are
terminable on not more than thirty (30) days prior notice without payment of any
premium or penalty (unless Seller agrees to pay the premium or penalty).
Notwithstanding anything contained herein to the contrary, Purchaser hereby
agrees to accept and assume in accordance with Exhibit 3 all Service Contracts
which cannot be terminated by Seller (i) without cause, (ii) upon less than
thirty (30) days' notice, or (iii) without payment of a premium or penalty.
(h) There are no persons employed by Seller at the
Premises in connection with the operation or maintenance of the Premises who
will be binding upon Purchaser after the Closing.
(i) Except for the Proceeding, there is no pending or
overtly threatened condemnation proceeding against the Premises or any portion
thereof.
(j) Except as set forth on Schedule C or in the tenant
files delivered or made available to Purchaser, Seller has not sent to or
received a written notice of default from a Space Tenant under the Space Leases
in the past six (6) months which has not been cured or waived.
(k) Except as set forth on Schedule E annexed hereto or
matters fully covered (excluding deductibles) by one or more insurance policies,
there is no litigation pending against the Premises.
(l) Except in connection with the Proceeding, Seller has
not received written notice from a governmental authority of a Violation against
Seller within the past twelve (12) months which has not been cured or waived.
(m) Except as set forth in this Contract and except for
the Service Contracts, the Space Leases and the Permitted Exceptions, there are
no service contracts, management agreements or other written agreements relating
to the operation or use of the Premises to which Seller is a party and which
will be binding upon Purchaser after the Closing.
6.2 KNOWLEDGE. The representations of Seller set forth in
Section 6.1 are made to the actual knowledge of Xxxxx Xxxxxx. Any reference to
Seller's "receipt" or
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language similar thereto of notices or other written documents shall mean the
actual receipt of the same by Xxxxx Xxxxxx. In no event shall Purchaser be
entitled to assert any cause of action against Xxxxx Xxxxxx nor shall Xxxxx
Xxxxxx have any personal liability whatsoever for any matter under or related to
this Contract.
6.3 UPDATE AND SURVIVAL. At Closing, Seller shall update the
representations made in Section 6.1 above as the facts then exist. The
representations made in Section 6.1 and any update of such representations shall
survive the Closing through the period ending August 31, 2004; provided,
however, any representation which results in a reduction of the Purchase Price
pursuant to Section 6.4 shall not survive the Closing. In any event, except in
the case of fraud, Seller's maximum liability after Closing for representations
that survive Closing shall be equal to the Maximum Representation Expense.
6.4 LIABILITY FOR MISREPRESENTATIONS.
(a) Subject to the provisions of Section 6.4(b) below, if
any representation of Seller shall fail to be true in any adverse respect and
such failure is (i) not due to Seller's fraud, Purchaser's sole remedy prior to
Closing shall be to terminate this Contract and receive the return of the
Deposit (ii) due to Seller's fraud, Purchaser shall be permitted to terminate
this Contract and receive a return of the Deposit and Purchaser's actual
damages, and upon the receipt of same, this Contract shall be null and void and
of no further force or effect and, except for those provisions expressly stated
to survive the termination of this Contract, neither party shall have any rights
or obligations against or to the other. Seller shall have the option to rescind
Purchaser's termination of this Contract and adjourn the Closing for a period
not to exceed thirty (30) days beyond the date scheduled for the Closing in
order to make such representation true. If the Closing shall take place without
Purchaser making an objection to an untrue representation of which Purchaser
shall have knowledge, Purchaser shall be deemed to have waived all liability of
Seller by reason of such untrue representation. Upon delivery of any Estoppel
Certificates, Seller shall be entirely released from any liability under
Seller's representations (including, without limitation, any update of the
representations) concerning the information contained in such Estoppel
Certificates to the extent the same is consistent with, or more favorable than,
the information contained in Seller's representations. The provisions of this
Section 6.4 shall survive the Closing or termination of the Contract.
(b) The provisions of Section 6.4(a) above to the contrary
notwithstanding, if any representation(s) shall fail to be true and such
representation(s) can be made true by the payment of a liquidated sum of money
only, and if both (a) such representation(s) can reasonably be expected to be
made true within a period of thirty (30) days beyond the date scheduled for
Closing and (b) the sum of money required to make such representation(s) true
shall not exceed Seventy-five Thousand and 00/100 ($75,000.00) Dollars in the
aggregate (the "MAXIMUM REPRESENTATION EXPENSE"), in such event, Seller agrees
to adjourn the Closing for the period required to make such representation(s)
true, but not to exceed thirty (30) days beyond the date scheduled for the
Closing and to expend (or, at Seller's election, to obligate itself to expend by
indemnity agreement, bond or any other manner) an amount not to exceed the
Maximum Representation Expense. If there shall be any untrue representation(s)
which can be made true by the payment of a sum of money only which exceeds the
Maximum Representation Expense, or which can be made true by the payment of not
more than the Maximum Representation Expense but not within the available time,
and Seller notifies
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Purchaser that Seller elects not to, or cannot, make such representation(s) true
within the available time, Purchaser may elect to (i) cancel this Contract by
notice to Seller given within five (5) Business Days after receipt of Seller's
notice and receive the return of the Deposit or (ii) close with a credit from
Seller equal to the lesser of the amount required to make the representation
true or the Maximum Representation Expense. If Purchaser fails to timely cancel
this Contract as provided in the preceding sentence, Purchaser shall
nevertheless proceed to Closing and the Purchase Price shall be reduced by the
lesser of the sum of money required to make such representations true or the
Maximum Representation Expense. Anything in this Section to the contrary
notwithstanding, an attempt by Seller to make any untrue representation to be
true shall not be deemed to be or create an obligation of Seller to make the
same true.
6.5 PURCHASER'S REPRESENTATIONS. Purchaser represents that:
(a) Purchaser is an Illinois corporation. The execution,
delivery and performance of this Contract in accordance with its terms, do not
violate the partnership agreement, corporate charter, by-laws, certificate of
incorporation or operating agreement of Purchaser, or any contract, agreement,
commitment, order, judgment or decree to which Purchaser is a party or by which
it is bound;
(b) Purchaser has the right, power and authority to make
and perform its obligations under this Contract; and
(c) This Contract is a valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms. Purchaser
covenants and warrants that the representations in the preceding sentences of
this Section 6.5 will be true on the Closing with respect to Purchaser or any
permitted assignee of Purchaser and Purchaser or such assignee shall deliver to
Seller at Closing copies of Purchaser's organizational documents and resolutions
and/or consents and certificates as necessary to substantiate that such
representations of Purchaser are true as of the Closing.
7. ONGOING OPERATIONS.
7.1 LEASING PRACTICE.
(a) The Existing Space Leases, together with any
modifications, renewals and new leases made after the date hereof in accordance
with this Section 7.1 hereof are herein called the "SPACE LEASES" and the
tenants thereunder are herein called the "SPACE TENANTS". During the period
ending five (5) days before the Outside Termination Date (and provided Purchaser
receives a copy of the applicable New Lease on or prior to such date), Seller
may enter into new leases or renew and/or make modifications to the Space Leases
(collectively, "NEW LEASE(S)") without the approval of Purchaser. Beginning with
the fifth (5th) day before the Outside Termination Date, provided Purchaser is
not in default under this Contract, Seller shall not enter into New Leases
without the prior approval of Purchaser, which approval shall not be
unreasonably withheld, conditioned or delayed. Purchaser agrees to grant or deny
consent in writing (and provide, in reasonable detail, the reasons for any
denial) within three (3) Business Days after Purchaser's receipt of Seller's
request, which request shall contain copies of all material information related
to such request and a summary of the material terms of the proposed New Lease.
Purchaser's failure to timely
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respond in writing to Seller's request shall be deemed a consent to the proposed
New Lease. Seller shall, from time to time, inform (orally or in writing)
Purchaser of any new lease negotiations and promptly give notice to Purchaser of
any New Lease and a copy of any instruments executed and any material
information delivered in connection with the New Lease. Notwithstanding anything
contained in this Section 7.1(a) to the contrary, at any time on or before the
Closing Date, Seller may enter into New Leases without Purchaser's prior
approval provided such New Leases are on terms no less favorable than those set
forth on SCHEDULE F annexed hereto.
(b) Following the Outside Termination Date, Seller may
continue to grant consent or approval to a request made by a Space Tenant if
such consent or approval is required to be granted pursuant to the applicable
provisions of the Space Lease or if Seller is required to exercise reasonable
judgment or discretion in determining whether to grant the consent or approval.
(c) Following the Outside Termination Date, if Seller is
not obligated to grant, or exercise reasonable judgment or discretion in
determining whether to grant, consent or approval to a request made by a Space
Tenant, then, provided Purchaser is not in default under this Contract, Seller
shall, prior to granting such consent or approval, notify Purchaser of the
request made by a Space Tenant, which notice shall contain copies of all
documents, if any, submitted by such Space Tenant in connection with the
request. Purchaser agrees to advise Seller in writing, within five (5) Business
Days after Purchaser's receipt of Seller's notice, whether Purchaser elects that
the Space Tenant's request be granted or denied (and provide, in reasonable
detail, the reasons for any denial), which election shall be made in Purchaser's
reasonable judgment. Purchaser's failure to timely respond in writing to
Seller's notice shall be deemed an election to consent to the proposed request.
(d) Purchaser acknowledges and agrees that no
representation has been made and no responsibility has been assumed by Seller
with respect to the continued occupancy of the Premises, or any part thereof, by
the Space Tenants following Closing. Seller does not undertake or guarantee that
the Space Tenants will be in occupancy at the Closing. Prior to the Closing,
Seller shall have the right, but not the obligation, to enforce its rights
against the Space Tenants by summary proceeding, drawing down or application of
security deposits or in any other manner. Except as provided in this Section 7.1
above and provided Purchaser is not in default under this Contract, Seller shall
not terminate any Space Lease without the prior consent of Purchaser except in
the event of a default by a Space Tenant under its Space Lease. Notwithstanding
anything contained herein to the contrary, it shall be a condition to
Purchaser's obligation to close title to the Premises if at any time after the
Outside Termination Date any of the following shall have occurred with respect
to a Space Tenant occupying space equal to or greater than 12,000 square feet at
the Premises: (i) the commencement of a case under Title 11 USC section 101, et.
sec., as now constituted and hereafter amended which is not dismissed prior to
the date scheduled for Closing; (ii) (A) a default by a Space Tenant under its
Space Lease for nonpayment of rent (which default continues beyond any
applicable grace period) and (B) the vacation of its premises or (iii) the
termination of its Space Lease; provided, however, that Purchaser shall be
deemed to have waived the provisions in this subsection 7.1(d) if Purchaser
expressly consents to or causes any such Space Tenant's vacation or termination
in accordance with this Section 7.1. If on the date scheduled for Closing the
foregoing condition is not
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satisfied, Purchaser's sole remedy shall be to terminate this Contract and
receive the return of the Deposit and upon the receipt of same, this Contract
shall be null and void and of no further force or effect and, except for those
provisions expressly stated to survive the termination of this Contract, neither
party shall have any rights or obligations against or to the other.
7.2 PERSONAL PROPERTY AND EQUIPMENT. During the pendency of
this Contract, Seller agrees not to transfer to any third party or remove any
personal property or equipment owned by Seller used in connection with the
operation or maintenance of the Premises and located in the Premises unless such
personal property or equipment is obsolete or replaced with a substantially
similar item.
7.3 EMPLOYEES. During the pendency of this Contract, Seller
shall not hire any employees for whom Purchaser will have liability following
the Closing.
7.4 DEVELOPMENT RIGHTS. Except in connection with the
Proceeding, during the pendency of this Contract, Seller shall not sell, lease,
transfer or otherwise encumber any development rights appurtenant to the
Premises that would materially and adversely affect the Premises.
7.5 TAX PROTEST PROCEEDINGS. Seller shall have sole authority
to prosecute, settle and withdraw proceedings to review any real estate tax
assessment for the Premises covering the fiscal years prior to and in which the
Closing occurs. Purchaser acknowledges that it has no interest in any
proceedings or refunds applicable to any fiscal tax year prior to the year in
which the Closing occurs. The provisions of this Section shall survive the
Closing.
7.6 OPERATION AND MAINTENANCE. From and after the date hereof
until the date and time of the Closing, Seller shall operate and maintain the
Premises in the usual course of business and consistent with past practices,
excepting normal wear and tear and loss or Casualty, except that Seller shall
have no obligation whatsoever to make any capital expenditures.
7.7 ACCOUNTING. Subject to the provisions of Section 13.6,
during the pendency of this Contract, Seller, at Purchaser's sole cost and
expense, shall reasonably cooperate with the public accounting firm KPMG in its
audit of the Premises' books and records, provided, that, such reasonable
cooperation does not increase Seller's liability in any manner. Purchaser
acknowledges and agrees that Seller shall not be obligated to devote (other than
de minimus) time and resources to KPMG's audit.
8. TITLE.
8.1 TITLE COMMITMENT. Seller has (i) caused to be issued and
delivered to Purchaser a title commitment (the "TITLE COMMITMENT") issued by
Heritage Title Company (the "TITLE COMPANY"), accompanied by a copy of all
recorded documents affecting the Property and listed as exceptions in Schedule B
of the Title Commitment and (ii) delivered to Purchaser a copy of the existing
ALTA survey of the Premises prepared by Xxxx Xxxxxx Engineers, dated September
16, 2003 as updated on November 19, 2003 (the "Survey"). At least ten (10) days
prior to the Outside Termination Date, Purchaser shall furnish Seller with
notice of any
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objections Purchaser has to the Title Commitment and Survey (collectively, the
"TITLE OBJECTION DATE"); provided, however, Seller shall have no obligation to
cure any such objections. Any matters existing as of the Title Objection Date to
which Purchaser does not object, shall be deemed Permitted Exceptions. All
defects, encumbrances, encroachments or other objections to title that exist as
of the Outside Termination Date and which Seller has not in this Contract or in
a separate writing expressly agreed to remove, shall be deemed Permitted
Exceptions. Following the Outside Termination Date, Purchaser shall notify
Seller within five (5) days of becoming aware of any other defects,
encumbrances, encroachments or other objections to title that are not Permitted
Exceptions. Any defects, encumbrances, encroachments or other objections to
title that are not Permitted Exceptions that are not timely objected to in
accordance with this Section 8.1 shall be deemed Permitted Exceptions.
8.2 STATUS OF TITLE. Subject to the terms of this Contract,
Seller shall deliver and Purchaser shall accept title to the Premises and
consummate the transaction contemplated by this Contract subject to (a) the
title exceptions set forth in Schedule B to this Contract and (b) title
exceptions created or suffered by Purchaser or mechanics' liens created or
suffered by Purchaser and (c) the title exceptions deemed Permitted Exceptions
under Section 8.1 above and (d) any items or exceptions to title set forth on
the Survey and (e) such other title exceptions which Seller may, in accordance
with the provisions of this Contract, cause the Title Company to omit from
Purchaser's title policy or affirmatively insure, without additional premium
(unless paid by Seller) (the title exceptions [whether liens, encumbrances,
defects, encroachments or other objections] described in (a), (b), (c), (d) and
(e) herein sometimes referred to collectively as "PERMITTED EXCEPTIONS").
8.3 NON-PERMITTED TITLE OBJECTIONS.
(a) If on the Closing it should appear that the Premises
is affected by any lien, encumbrance, defect, encroachment or objection which is
not a Permitted Exception (collectively, "NON-PERMITTED TITLE OBJECTIONS"), then
in such event, Seller, at Seller's election, shall have the privilege to remove
or satisfy the same, and shall, for that purpose, be entitled to one or more
adjournments of the Closing for a period not to exceed (in the aggregate) thirty
(30) days beyond the date scheduled for Closing.
(b) Seller shall not be required to bring any action or
proceeding or to otherwise incur any expense to remove or discharge any
Non-Permitted Title Objection unless such Non-Permitted Title Objection(s) can
be removed or discharged by payment of a liquidated sum of money only, and if
both (1) such removal or discharge can reasonably be expected to be accomplished
within a period of thirty (30) days beyond the date scheduled for the Closing
and (2) the sum of money required to accomplish such removal or discharge does
not exceed Seventy-five Thousand and 00/100 ($75,000.00) Dollars in the
aggregate (the "MAXIMUM TITLE EXPENSE"). In such event, Seller agrees to adjourn
the Closing for the period required to remove or discharge such Non-Permitted
Title Objections, but not to exceed thirty (30) days beyond the date scheduled
for the Closing, and to expend (or at Seller's election, to obligate itself to
expend by indemnity agreement, bond or any other manner) an amount not to exceed
the Maximum Title Expense to remove or discharge such Non-Permitted Title
Objections. If there shall be any Non-Permitted Title Objections that can be
removed or discharged by the payment of a sum of money only which exceeds the
Maximum Title Expense, or that can be removed by the payment of not more than
the Maximum Title Expense but not
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within thirty (30) days and Seller notifies Purchaser that Seller elects not to,
or cannot, remove or discharge such Non-Permitted Title Objections, Purchaser
may elect to (i) terminate this Contract by notice given within five (5)
Business Days after receipt of Seller's notice and receive the return of the
Deposit or (ii) close with a credit from Seller equal to the lesser of the
amount required to remove or discharge such Non-Permitted Title Objection or the
Maximum Title Expense. If Purchaser fails to timely cancel this Contract as
provided in the preceding sentence, Purchaser shall accept such title as Seller
can convey and the Purchase Price shall be reduced by the lesser of the Maximum
Title Expense or the amount required to remove or discharge said Non-Permitted
Title Objection. Anything in this Section to the contrary notwithstanding, an
attempt by Seller to remove or discharge any Non-Permitted Title Objection shall
not be deemed to be or create an obligation of Seller to remove or discharge the
same.
(c) The foregoing provisions of this Section to the
contrary notwithstanding, Seller agrees to remove or discharge any monetary lien
voluntarily created by Seller and any Non-Permitted Title Objections voluntarily
created by Seller after the date hereof; provided, however, that Seller shall in
no event be deemed to have voluntarily created (nor shall Seller be liable for)
any monetary lien or Non-Permitted Title Objections if caused or created by an
act or omission of Purchaser or by an act or omission of a Space Tenant.
9. CLOSING.
9.1 CLOSING DATE AND LOCATION. Subject to the adjournments
expressly allowed elsewhere in this Contract, the closing of title (the
"CLOSING") shall take place, time being of the essence at 9:30 AM, on January
15, 2004. The Closing shall take place by escrow deliveries to the Escrowee (the
actual date of closing is herein referred to as the "CLOSING DATE") pursuant to
reasonably acceptable escrow instructions that will provide, among other things,
that the transfer documents will be released only upon Escrowee, on behalf of
Seller, being unconditionally and irrevocably authorized to disburse the
Purchase Price to Seller or as Seller may direct.
9.2 CLOSING EXPENSES.
(a) SELLER'S EXPENSES. Seller shall pay (i) one-half of
any escrow or closing charge of the Title Company; (ii) the base premium for a
basic Standard Coverage Owner's Policy (without endorsements or extended
coverage (which includes, without limitation, shortage in area coverage)); (iii)
one-half of any real property transfer, conveyance, grantor, grantee or
recording taxes imposed by any applicable governmental authority by reason of
the transfer of the Premises ("TRANSFER TAX"); (iv) the Survey (for expenses
incurred through November 19, 2003); and (v) any sales tax payable on the sale
of any personal property to Purchaser. Seller and Purchaser shall each execute
(and swear to where required) any returns and statements required in connection
with the Transfer Tax, if any. Payment of the Transfer Tax shall be made to the
Title Company.
(b) PURCHASER'S EXPENSES. Purchaser shall pay (i) one-half
of any escrow or closing charge of the Title Company; (ii) one-half of the
Transfer Tax (if any); (iii) the per page cost of recording the deed; (iv) all
expenses relating to its inspection of the Premises including, but not limited
to, engineering, environmental and property condition surveys including the
costs of the Survey first incurred from and after November 20, 2003; (v)
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the cost of the premium for extended title policy coverage and the costs of any
endorsements (other than endorsements which Seller elects to obtain to cure any
Non-Permitted Title Exception); and (vi) any cost incurred in connection with
any financing obtained by Purchaser including, without limitation, mortgage
recording tax and title insurance premiums.
(c) The provisions of this Section 9.2 shall survive the
Closing.
9.3 CLOSING DELIVERIES.
(a) At Closing Seller shall deliver to Purchaser or
Escrowee:
(i) the Deed executed by Seller and acknowledged
in the form annexed hereto as Exhibit 1;
(ii) the Assignment of the Space Leases executed by
Seller in the form annexed hereto as Exhibit 2;
(iii) the Assignment of the Service Contracts (and
any permitted replacements or renewals thereof) executed by Seller in the form
annexed hereto as Exhibit 3;
(iv) the Assignment of Licenses, Permits,
Guarantees and Warranties executed by Seller in the form annexed hereto as
Exhibit 4;
(v) notice to the Space Tenants executed by Seller
in the form annexed hereto as Exhibit 5 (which will be delivered to the Space
Tenants by Seller or its property manager unless otherwise mutually agreed to by
Seller and Purchaser);
(vi) originals, or if originals are not available,
copies of the Space Leases;
(vii) notice to the service contractors executed by
Seller in the form annexed hereto as Exhibit 6;
(viii) originals, or if originals are not available,
copies of the Service Contracts;
(ix) to the extent in Seller's possession, the real
estate tax bills for the Premises for the then current real estate tax year;
(x) to the extent they are in Seller's possession
(a) unless posted at the Property, all licenses and permits, authorizations and
approvals pertaining to the Premises and (b) all guarantees and warranties which
Seller has received in connection with any work or services performed or
equipment installed in and improvements erected on the Premises (Seller agrees
to use commercially reasonable efforts to obtain an acknowledgment from the roof
warranty material and/or service provider of the assignment of the roof warranty
to Purchaser (at the sole cost and expense of Seller) but failure to obtain same
shall not be a condition to Purchaser's obligation to complete Closing not give
rise to any liability or obligation on the part of Seller to Purchaser or
otherwise);
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(xi) duly executed certificate of Seller in the
applicable form set forth in Treasury Regulations Section 1.1445-2(b)(2); and
(xii) estoppel certificates (each an "ESTOPPEL
CERTIFICATE" and collectively the "ESTOPPEL CERTIFICATES") from Space Tenants
representing ninety-five (95%) percent of the leased area of the Premises,
provided that Seller shall deliver estoppel certificates from one hundred (100%)
percent of Space Tenants equal to or greater than 8,000 square feet occupying
space at the Premises (collectively, "ESTOPPEL TENANTS"), in form and substance
which do not vary materially from the form annexed hereto as Exhibit 7 (unless
such variance benefits Purchaser), provided, however, that any Space Tenant may
delete or modify paragraphs m, n and o of the Estoppel Certificate, or, as to
any Space Tenant and/or Space Lease providing for or allowing a different form
of estoppel certificate, the form provided or allowed by such Space Tenant
and/or Space Lease. Seller will request, where appropriate, an estoppel
certificate, in the form annexed hereto as EXHIBIT 13, from all guarantors
("GUARANTOR ESTOPPEL CERTIFICATE") of Space Leases at the Premises but failure
to obtain an executed Guarantor Estoppel Certificate shall not be a condition to
Purchaser's obligation to complete Closing nor give rise to any liability or
obligation on the part of Seller to Purchaser or otherwise. Notwithstanding the
foregoing to the contrary, if the Estoppel Certificates cannot be timely
delivered, Seller may, but shall not be obligated to, adjourn the Closing for a
period not to exceed thirty (30) days, to (i) obtain the Estoppel Certificates
or (ii) for Space Tenants occupying less than 8,000 square feet at the Premises,
elect to deliver Seller's Estoppels in lieu thereof if such estoppels are not
delivered, or as a supplement thereto, if such estoppels do not cover all of the
required matters as set forth on EXHIBIT 7 or in the form provided for or
allowed pursuant to such Space Tenant's Space Lease, as applicable, in the form
attached hereto as EXHIBIT 11 (each a "SELLER'S ESTOPPEL" and collectively
"SELLER'S ESTOPPELS") which Seller's Estoppels shall be deemed to comply with
this Section 9.3(a)(xii) and shall satisfy Seller's obligation with respect to
such Space Tenant. Seller shall be entirely released from liability under a
Seller Estoppel upon delivery to Purchaser of an Estoppel Certificate from the
corresponding Space Tenant to the extent such replacement Estoppel Certificate
is in a form and substance which complies with this Section 9.3(a)(xii). If
Seller, after exercising or waiving in writing its adjournment right set forth
in this Section 9.3(a)(xii), does not or cannot deliver the required Estoppel
Certificates, Purchaser's sole remedy shall be to terminate this Contract and
receive the return of the Deposit or to close notwithstanding the lack of the
Estoppel Certificate(s) without any reduction of the Purchase Price and without
any liability of Seller relative thereto. In the event any Estoppel Certificate
shall claim a default or other failure of an obligation (a claim of default or
failure of an obligation by Seller or a Space Tenant which arises out of or
results from information disclosed to or known by Purchaser prior to the Outside
Termination Date shall not be deemed an Estoppel Default) by Seller under a
Space Lease (such default or failure hereinafter being referred to as an
"ESTOPPEL DEFAULT"), then Seller may, but shall not be obligated to, elect to
cure any such Estoppel Default and shall, for that purpose, be entitled to
adjourn the Closing for a period not to exceed thirty (30) days, provided,
however, that in the event Seller elects not to cure such Estoppel Default or is
unable to cure such Estoppel Default within such period of time, Purchaser's
sole remedy shall be to terminate this Contract and receive the return of the
Deposit. In the event Purchaser is permitted to terminate this Contract pursuant
to the preceding sentence and if Purchaser fails to terminate this Contract as
provided for above then, the rights and obligations of the parties hereto shall
not be affected thereby, this Contract shall remain in full force and effect and
Purchaser shall, at the Closing, accept such Estoppel Certificate subject to
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such Estoppel Default without any reduction of the Purchase Price.
Notwithstanding anything contained herein to the contrary, Purchaser shall
notify Seller upon the date which is the earlier of (i) three (3) Business Days
following Purchaser's receipt of an executed Estoppel Certificate and (ii) one
(1) Business Day prior to Closing, of Purchaser's permitted objections to any
such Estoppel Certificate. Purchaser's failure to timely respond to Seller in
accordance with the preceding sentence shall be deemed its approval of the
Estoppel Certificate.
(xiii) the Xxxx of Sale, executed by Seller in the
form of Exhibit 8 annexed hereto;
(xiv) keys, combinations and codes to all locks and
security devices to the Premises in Seller's possession;
(xv) an update of Seller's representations executed
by Seller in accordance with Section 6.3 above;
(xvi) a Seller's non-resident withholding affidavit
executed by Seller;
(xvii) the Transfer Tax return(s) executed by Seller
(if applicable); and
(xviii) Seller shall request from BB Fonds
International 1 USA, L.P., as a party to certain easement agreements on SCHEDULE
B (items 10 (o) and (q)), an estoppel certificate in a form attached hereto as
EXHIBIT 12 and promptly upon receipt agrees to deliver the same to Purchaser,
but the failure to obtain an estoppel certificate from BB Fonds International 1
USA shall not be a condition to Purchaser's obligation to complete Closing nor
give rise to any liability or obligation on the part of Seller to Purchaser or
otherwise.
(xix) a title certificate in form attached hereto as
Exhibit 10; and
(xx) evidence of Seller's organizational authority.
(b) At Closing Purchaser shall deliver to Seller or
Escrowee:
(i) the balance of the Purchase Price as provided
in Section 3 hereof;
(ii) the Assignment of the Space Lease executed by
Purchaser in the form annexed hereto as Exhibit 2;
(iii) the Assignment of the Service Contracts (and
any replacements or renewals thereof) executed by Purchaser in the form annexed
hereto as Exhibit 3;
(iv) notice to the Space Tenants executed by
Purchaser in the form annexed hereto as Exhibit 5;
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(v) Transfer Tax return(s) executed by Purchaser
(if applicable);
(vi) notice to the service contractors executed by
Purchaser in the form annexed hereto as Exhibit 6; and
(vii) evidence of Purchaser's organizational
authority.
9.4. APPORTIONMENTS AND REIMBURSEMENTS. The following
adjustments shall be made with respect to the Premises, and the following
procedures shall be followed:
(a) General.
(i) PREPARATION OF PRORATIONS. At least five (5)
days before the Closing Date, Seller shall prepare and deliver, or cause
Escrowee to prepare and deliver, the Purchaser an unaudited statement for the
Premises (the "Preliminary Proration Statement") showing prorations for the
items set forth below, calculated as of 11:59 p.m. on the day preceding the
Closing Date, on the basis of a 365-day year. Notwithstanding the foregoing in
the event Seller (or its designee) does not receive the funds to be wired
pursuant to Section 3 above by 1:00 P.M. Eastern Time on the Closing Date, then
in such event, the items set forth in this Section shall be apportioned as of
11:59 P.M. on the Closing Date based upon the respective party's period of
ownership for the item being apportioned. Purchaser and its representatives
shall be afforded reasonable access to Seller's books and records with respect
to the Premises and Seller's work papers pertaining to the Preliminary Proration
Statement to confirm the accuracy of the Preliminary Proration Statement.
Purchaser and Seller shall agree upon any adjustments to be made to the
Preliminary Proration Statement before the Closing, and at the Closing,
Purchaser or Seller, as applicable, shall receive a credit equal to the net
amount due Purchaser or Seller, as applicable, pursuant to the Preliminary
Proration Statement as finally agreed upon by Purchaser and Seller. The items to
be covered by the Preliminary Proration Statement are as follows:
A. rents, including percentage rents,
escalation charges for real estate taxes, parking charges, marketing fund
charges, operating expense prepayments and reimbursements from Space Tenants,
maintenance escalation rents or charges, costs-of-living increases or other
charges of a similar nature, if any, and any additional charges, and expenses
(collectively, "ADDITIONAL RENTS") payable under the Space Leases for the month
in which Closing occurs; provided that if any of the foregoing are not finally
adjusted between Seller and a Space Tenant, as applicable until after the
preparation of the Preliminary Proration Statement then proration of such items
shall be subject to adjustment pursuant to Section 9.4(b);
B. non-delinquent real property taxes and
assessments except to the extent paid directly to the taxing authority by any
Space Tenants under its Space Leases (real property taxes and assessments due
and payable prior to the date of Closing shall be fully discharged and paid by
Seller); provided that if the real property tax assessment for the fiscal year
in which the Closing occurs has not been issued as of the Closing Date, real
property taxes shall be prorated based on the most recent assessed value of the
Premises, multiplied by the current tax rate, and such tax proration shall be
subject to adjustment pursuant to subparagraph (iv) of this Section 9.4(a);
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C. Intentionally Deleted;
D. water, sewer and utility charges not
payable by a Space Tenant;
E. amounts payable under the Service
Contracts;
F. permits, licenses and/or inspection fees
(calculated on the basis of the period covered), but only to the extent
transferred to Purchaser;
G. prior to Closing, if (i) any Existing Space
Tenant vacates the Premises and (ii) Seller replaces its Existing Space Lease
with a New Lease under which the replacement Space Tenant's net effective rent
payable after the Closing is greater than that of the vacating Space Tenant (the
difference between the replacement Space Tenant's net effective rent and the
vacating Space Tenant's net effective rent, the "EXCESS RENT"), Seller and
Purchaser shall apportion leasing commissions, landlord's work and tenant
improvement allowances incurred in connection with such New Lease made in
accordance with the provisions of Section 7.1 above (which shall be apportioned
based on the proportion of base rent payable over the initial lease term
occurring during each party's respective period of ownership); provided,
however, that the amount payable by Purchaser pursuant to this subsection
9.4(a)(i)(G) shall not be greater than the Excess Rent;
H. Intentionally Deleted; and
I. any other expenses normal to the operation
and maintenance of the Premises.
(ii) PRINCIPLES OF PRORATIONS; COLLECTIONS AND
PAYMENTS. Subject to the prorations to be made pursuant to this Section 9.4,
after the Closing Purchaser shall collect all revenues and pay all expenses with
respect to the Premises, even if such revenues and expenses relate to periods
before the Closing. Seller agrees to cooperate with Purchaser by endorsing
(without recourse) in favor of Purchaser any checks which may be received after
the Closing, but which are made payable to Seller (or its affiliates). Purchaser
shall use reasonable efforts consistent with prudent business practices to
collect rents or other amounts payable under the Space Leases that were
delinquent as of the Closing Date and that relate to a period before the
Closing. To the extent such delinquent rents and other amounts are collected by
Purchaser by judicial process, Purchaser may deduct from the amount owed to
Seller an amount equal to the attorneys' fees and costs actually incurred by
Purchaser in collecting such rents and other amounts due to Seller. Subject to
the foregoing sentence, any rent or other payment collected after the Closing
from any Space Tenant which owed a payment that was delinquent as of the Closing
Date shall be applied first, to the applicable party's unpaid monetary
obligations with respect to any periods from the Closing Date through the end of
the month in which such payment is made, in such order as Purchaser may elect,
until such monetary obligations have been paid in full; any remaining amount of
such payment shall be paid over to Seller, for application against such party's
delinquent monetary obligations with respect to any periods before the Closing
Date, in such order as Seller may elect, until such delinquent monetary
obligations have been paid in full; and any remaining amount of such payment
shall be retained
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by Purchaser for application against such party's future obligations.
Notwithstanding anything contained herein to the contrary, after the Closing
Date Seller shall retain the right to (i) bring or continue actions or
proceedings against Space Tenants to collect any delinquencies to which Seller
is entitled to receive and Purchaser shall be deemed to have assigned to Seller
the exclusive right to file proofs of claim and to commence or continue any
actions or proceedings to collect any pre-petition rent, pre-petition additional
rent, pre-petition rejection damages under Section 365 of the Bankruptcy Code,
and/or post petition administration expense claims, for any and all damages
which arise or accrue prior to the Closing Date, and to retain any sums
collected in connection therewith; provided, however, Seller shall not xxx to
terminate a Space Tenant's Space Lease or right to possession of its premises
and (ii) receive and Purchaser shall be deemed to have assigned to Seller the
exclusive right to collect any and all amounts due in connection with the
Proceeding. In addition, in calculating the prorations pursuant to this Section
9.4, Seller shall receive a credit in the amount of any utility, municipality or
other deposits relating to the Premises made by Seller and which are assigned to
Purchaser at the Closing. Seller shall be entitled to a refund of any deposits
not assigned to Purchaser.
(iii) SECURITY DEPOSITS. At the Closing, Seller
shall assign and deliver to Purchaser all prepaid rent, security deposits,
letters of credit and other collateral actually received by Seller pursuant to
any of the Space Leases.
(iv) POST-CLOSING ADJUSTMENTS. Notwithstanding
anything to the contrary contained in this Section 9.4, (A) if the amount of the
real property taxes and assessments payable with respect to the Premises for any
period before Closing is determined to be more than the amount of such real
property taxes and assessments that is prorated herein (in the case of the
current year) or that was paid by Seller (in the case of any prior year), due to
a reassessment of the value of the Premises or otherwise, Seller and Purchaser
shall promptly adjust the proration of such real property taxes and assessments
after the determination of such amounts, and Seller shall pay to Purchaser any
increase in the amount of such real property taxes and assessments applicable to
any period before Closing; provided, however, that Seller shall not be required
to pay to Purchaser any portion of such increase that is payable by Space
Tenants; and (B) if the amount of the real property taxes and assessments
payable with respect to the Premises for any period before Closing is determined
to be less than the amount of such real property taxes and assessments that is
prorated herein (in the case of the current year) or that was paid by Seller (in
the case of any prior year), due to an appeal of the taxes by Seller, a
reassessment of the value of the Premises or otherwise, Seller and Purchaser
shall promptly adjust the proration of such real property taxes and assessments
after the determination of such amounts, and (1) Purchaser shall pay to Seller
any refund received by Purchaser representing such a decrease in the amount of
such real property taxes and assessments applicable to any period before
Closing; provided, however, the Purchaser shall not be required to pay to Seller
any portion of such refund which is payable to Space Tenants; and (2) Seller
shall be entitled to retain any refund received by Seller representing such a
decrease in the amount of such real property taxes and assessments applicable to
any period before Closing; provided, however, that Seller shall pay to Purchaser
that portion of any such refund that is payable to Space Tenants. Each party
shall give notice to the other party of any adjustment of the amount of the real
property taxes and assessments payable with respect to the Premises for any
period before Closing within thirty (30) days after receiving notice of any such
adjustment.
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(b) POST CLOSING RECONCILIATION.
(i) CERTAIN DELAYED PRORATIONS. If any Space
Tenants are required to pay Additional Rents, then, with respect to those
Additional Rents which are not finally adjusted until after the preparation of
the Preliminary Proration Statement pursuant to Section 9.4(a) above, Purchaser
shall submit to Seller, no later than March 31, 2005, an unaudited statement for
the Premises (a "SUPPLEMENTAL PRORATION STATEMENT") covering any such Additional
Rents or any other items which have been finally adjusted between Purchaser and
the applicable party for the 2004 calendar year (or if the applicable fiscal
year is other than a calendar year, within ninety (90) days after the end of the
applicable fiscal year), containing a calculation of the prorations of such
Additional Rents and such other items, prepared based on the principles set
forth in Section 9.4(a) above, provided that in making such adjustment, the
parties shall exclude any Additional Rents arising from increased real property
taxes for the Premises to the extent such increase results from Purchaser's
purchase of the Premises. In order to enable Purchaser to make any year-end
reconciliations of Additional Rents, within ninety (90) days after the Closing,
Seller shall deliver to Purchaser a final statement of (i) all operating
expenses for the Premises which are actually paid by Seller and permitted to be
passed through to Space Tenants, as applicable, with respect to the portion of
the 2004 calendar year occurring prior to the Closing ("SELLER'S 2004 ACTUAL
OPERATING EXPENSES"), together with copies of all documentation evidencing
Seller's 2004 Actual Operating Expenses, including copies of third-party
invoices and copies of Seller's books and records applicable thereto, and (ii)
all estimated payments of Additional Rents received by Seller with respect to
the portion of the 2004 calendar year occurring prior to the Closing. If
Additional Rents for the 2003 calendar year have not been finally adjusted
between Seller and a Space Tenant, as applicable, as of the Closing, Seller
shall retain all rights and obligations with respect to the adjustment thereof
directly with the applicable party following the Closing, subject to the
provisions of Section 9.4(a)(iv) above. Without limiting the generality of the
foregoing, but subject to the provisions of Section 9.4(a)(iv) above, Seller
shall retain all rights to xxxx and collect any additional amounts owing with
respect to Additional Rents for the 2003 calendar year, and shall remain
obligated to pay any refund owing to any party for overpayment of Additional
Rents for the 2003 calendar year.
(ii) AUDIT RIGHTS FOR SUPPLEMENTAL PRORATION
STATEMENTS. Seller and its representatives shall be afforded the opportunity to
review all underlying financial records and work papers pertaining to the
preparation of all Supplemental Proration Statements, and Purchaser shall permit
Seller and its representatives to have full access to the books and records in
the possession of Purchaser or any party to whom Purchaser has given custody of
the same relating to the Premises to permit Seller to review the Supplemental
Proration Statements. Any Supplemental Proration Statement prepared by Purchaser
shall be final and binding for purposes of this Agreement unless Seller shall
give written notice to Purchaser of disagreement with the prorations contained
therein within sixty (60) days following Seller's receipt of such Supplemental
Proration Statement, specifying in reasonable detail the nature and extent of
such disagreement. If Purchaser and Seller are unable to resolve any
disagreement with respect to any Supplemental Proration Statement within ten
(10) Business Days following receipt by Purchaser of the notice referred to
above, either party may pursue any remedy available for the resolution of such
dispute.
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(iii) PAYMENTS FOR ADJUSTMENTS. Any net credit due
Seller or Purchaser, as the case may be, shall be paid to Seller or Purchaser,
as the case may be, within seventy-five (75) days after the delivery of a
Supplemental Proration Statement to Seller, or unless Seller notifies Purchaser
of a disagreement with respect to any such statement as provided in Section
9.4(b)(ii) above, in which case such payment (less a hold back sufficient to
cover the amount of the disagreement) shall be made within fifteen (15) days
after Seller notifies Purchaser of such disagreement, and any further payment
due after such disagreement is resolved shall be paid within fifteen (15) days
after the resolution of such disagreement.
(c) SURVIVAL. The obligations of Seller and Purchaser
under this Section 9.4 shall survive the Closing.
9.5 CLOSING CONDITION. This Contract and all obligations of
Purchaser hereunder are expressly conditioned on the following condition
precedent being complied with as of the Closing Date: Seller shall (i) have
delivered to Purchaser all written notices of Violations from governmental
authorities which Seller receives from and after the date hereof which have not
been cured or waived and (ii) not have received any written notices of
Violations which would materially and adversely affect the Premises other than
written notices of Violations (A) of which Seller notifies Purchaser no later
than two (2) days prior to the Outside Termination Date, (B) which arise out of
conditions known to Purchaser as of the Outside Termination Date, including,
without limitation, those arising out of the Proceeding, (C) which are
specifically disclosed in Purchaser's engineering reports as of the Outside
Termination Date, (D) which are caused by Purchaser's acts or omissions or (E)
which a Space Tenant is obligated to cure pursuant to its Space Lease. If Seller
notifies Purchaser that the condition set forth in this Section 9.5 cannot be
met, Purchaser shall have five (5) days from receipt of Seller's notice to elect
to (i) cancel this Contract and receive the return of the Deposit or (ii) waive
compliance with the aforesaid condition. If Purchaser elects to cancel this
Contract pursuant to the preceding sentence, Seller shall have the option to
rescind Purchaser's cancellation of this Contract and adjourn the Closing for a
period not to exceed thirty (30) days beyond the date scheduled for Closing in
order to cure the condition causing such Violations, provided Seller notifies
Purchaser of such election within five (5) days after receipt of Purchaser's
cancellation notice. In the event Purchaser is permitted to cancel this Contract
in accordance with the foregoing, if Purchaser fails to cancel this Contract as
provided for above, then, the rights and obligations of the parties hereto shall
not be affected thereby, this Contract shall remain in full force and effect and
Purchaser shall, at the Closing, accept the Premises subject to any such written
notices of Violations without any reduction of the Purchase Price.
10. DEFAULT.
10.1 PURCHASER'S DEFAULT. If Purchaser should default under
this Contract, the parties hereto agree that the damages that Seller will
sustain as a result thereof will be substantial but will be difficult to
ascertain. Accordingly, the parties agree that in the event of such default,
Escrowee is hereby directed to pay the Deposit to Seller, who shall retain the
Deposit as and for its liquidated damages and sole remedy hereunder, in which
event this Contract shall be null and void and of no further force and effect
except for those provisions expressly stated to survive the termination of the
Contract.
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10.2 SELLER'S DEFAULT. If, for any reason whatsoever other than
upon Seller's willful (i) default or (ii) wrongful failure or refusal to adhere
to the terms of this Contract, Seller shall be unable to convey title subject
to, and in accordance with, the terms of this Contract, the sole obligation of
Seller shall be to cause the refund of the Deposit to Purchaser and upon the
making of such refund, this Contract shall be null and void and of no further
force or effect except for those provisions expressly stated to survive the
termination of this Contract and the lien, if any, of Purchaser against the
Premises shall wholly cease. Purchaser's sole remedy for Seller's willful (i)
default and (ii) wrongful failure or refusal to adhere to the terms of this
Contract, shall be to elect to cancel this Contract and receive the Deposit, or
to commence an action for specific performance. Purchaser hereby waives all
other rights and remedies that it might have, including but not limited to, the
right to xxx for damages.
11. RISK OF LOSS.
11.1 CONDEMNATION.
(a) If, at any time prior to the Closing Date, all or
a Substantial Portion of the Property shall be taken in the exercise of the
power of condemnation or eminent domain by any sovereign, municipality or other
public or private authority or shall be the subject of a duly noticed hearing
held by any such authority relating to a pending taking in the exercise of the
power of condemnation or eminent domain (a "TAKING"), then this Contract shall
be deemed cancelled and of no force and effect and neither party shall have any
further obligations or liabilities against or to the other, except that Seller
shall cause the return of the Deposit to Purchaser. In case of a Taking of less
than a Substantial Portion of the Property or if Purchaser or Seller do not
elect to terminate this Contract, however, then this Contract shall remain in
full force and effect and on the Closing either (A) Purchaser shall be entitled
to any condemnation award to be granted and Seller shall assign all of its
right, title and interest to such award to Purchaser, less such sums, if any,
actually and reasonably expended by Seller to prosecute such claim and restore
the Premises, or (B) if such award shall have been paid to Seller, the Purchase
Price shall be reduced by the amount thereof, less such sums, if any, actually
and reasonably expended by Seller to prosecute such claim and restore the
Premises. Seller agrees to deliver promptly after receipt thereof any and all
written notices of a Taking received by Seller after the date hereof.
(b) As used herein, a Taking of a "SUBSTANTIAL PORTION" of
the Property shall mean a Taking, which (i) materially and adversely affects
access to or from the Premises on a permanent basis or (ii) will result in the
termination of any Space Lease in excess of 15,000 leaseable square feet or
(iii) results in the permanent loss of parking spaces such that the Premises
then fail to comply with applicable zoning or any parking requirement contained
in a Space Lease or recorded reciprocal easement agreement affecting the
Premises and such non-compliance is not cured prior to the Closing. Subject to
Purchaser's right to cancel this Contract on or before the Outside Termination
Date as set forth in Section 12.1, Purchaser acknowledges and agrees that the
Proceeding shall not constitute a Taking under this Contract.
11.2 DESTRUCTION OR DAMAGE. In the event that the Property, or
any part thereof, shall be damaged or destroyed by fire or any other casualty
("CASUALTY") prior to the Closing Date, Seller shall give Purchaser prompt
written notice of such event together with an estimate of the cost and time to
restore prepared by an independent insurance examiner or
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engineer selected by Seller. If the Casualty will (a) require more than
$500,000.00 to repair, or (b) result in the termination of any Space Lease (each
event described in (a) or (b) herein called a "CASUALTY TERMINATION EVENT"),
Purchaser may cancel this Contract by notice to Seller within ten (10) days
after receipt of notice from Seller (i) of the cost and time to restore or (ii)
that a Space Tenant has terminated its Space Lease pursuant to its terms, in
which event this Contract shall be deemed terminated and of no force and effect
and neither party shall have any further rights or liabilities against or to the
other except for those provisions expressly stated to survive the termination of
this Contract and Seller shall cause the return of the Deposit to Purchaser.
Notwithstanding anything contained herein to the contrary, in the event of a
Casualty Termination Event, Seller may cancel this Contract by notice to
Purchaser, in which event this Contract shall be deemed terminated and of no
force and effect and neither party shall have any further rights or liabilities
against or to the other except for those provisions expressly stated to survive
the termination of this Contract and Seller shall cause the return of the
Deposit to Purchaser. If there is no Casualty Termination Event or if Purchaser
or Seller do not timely elect to cancel the Contract in the event of a Casualty
Termination Event, this Contract shall remain in full force and effect and, on
the Closing, Seller shall transfer and/or assign to Purchaser any and all monies
and claims received by and/or accrued to Seller on account of such Casualty (and
shall pay Purchaser the amount of any deductible payable under Seller's
insurance policy), less such sums, if any, as shall have been actually and
reasonably expended by Seller in connection with the repair or restoration of
such Casualty or the prosecution of such claim.
12. PURCHASER'S REVIEW PERIOD.
12.1 Purchaser shall have the right to cancel this Contract for
any reason in Purchaser's sole discretion, or for no reason, on or before
December 29, 2003 (the "OUTSIDE TERMINATION DATE") by notice to Seller to be
received by Seller on or before 3:00 P.M. EASTERN TIME on the Outside
Termination Date (the period of time from the date hereof through and including
the Outside Termination Date is herein referred to as "PURCHASER'S REVIEW
PERIOD"). If Purchaser duly cancels this Contract in accordance with this
Section 12.1, this Contract shall be deemed terminated and of no further force
or effect, except for the provisions expressly stated to survive the Closing,
and the Deposit shall be returned to Purchaser. If Purchaser does not duly
cancel this Contract in accordance with this subparagraph or if Purchaser waives
its right to cancel this Contract, (i) this Contract shall remain in full force
and effect and Purchaser shall have no further right to cancel this Contract
under this Section and (ii) Purchaser shall be deemed to have waived any
liability of Seller and any right to refuse to consummate the Closing by reason
of a misrepresentation, Non-Permitted Title Objection, the Proceeding or other
condition actually known to Purchaser as of the Outside Termination Date. During
Purchaser's Review Period, Purchaser may perform non-intrusive inspections of
the Premises at reasonable times (at least two (2) Business Days prior written
notice to Seller), subject to the rights of the Space Tenants and Seller's prior
consent, which consent shall not be unreasonably withheld. At least two (2)
Business Days prior to performing such inspections, Purchaser shall comply with
the applicable requirements of the Access Agreement dated December 3, 2003
executed by and between Seller and Purchaser (the "Access Agreement"). After
making such inspections, Purchaser, at Purchaser's sole expense, shall restore
the Premises to its condition prior to such inspections. Purchaser may not
conduct any intrusive inspections or borings without the prior written approval
of Seller, which approval may be withheld, granted or granted upon conditions,
in Seller's sole and absolute discretion. Purchaser may only
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communicate with the Space Tenants or employees of Seller or its property
manager in the presence of an agent or representative of Seller. Purchaser
acknowledges and agrees that Seller (but not Seller's property manager) shall be
the only party authorized to furnish Purchaser with any documents reasonably
requested by Purchaser in connection with the performance of its inspections
pursuant to this Section 12.1. Purchaser shall indemnify and hold Seller and
Seller's property manager free and harmless from and against any and all costs,
expenses, claims, losses or damages, liabilities and judgments (including
reasonable attorneys' fees and disbursements) arising out of Purchaser's
inspection of the Premises, including without limitation with respect to the
Premises, whether caused by Purchaser or its contractors, agents or employees or
anyone acting by, through, under, or at the direction, of the foregoing. Without
limiting the generality of the foregoing indemnity, Purchaser shall (i) remove
any mechanics' or other lien which may be recorded against the Premises by any
party providing labor, materials or services at the request of Purchaser and
(ii) not file or cause to be filed any application or make any request with any
governmental or quasi-governmental agency prior to Closing which would or could
lead to a hearing before any governmental or quasi-governmental agency or which
would or could lead to a Violation or any change in zoning, parcelization,
licenses, permits or other entitlements or any investigation or restriction on
the use of the Property, or any part thereof.
12.2 Time shall be of the essence with respect to the dates in
this Article 12 for the Outside Termination Date and the giving of Purchaser's
cancellation notice. The provisions of this Article 12 shall survive the Closing
or termination of this Contract.
13. MISCELLANEOUS.
13.1 BROKER. Seller and Purchaser represent to each other that
neither party has dealt with any broker or real estate consultant other than
Xxxxxxxx Xxxxxxxx Xxxxxx, X.X. ("Broker") in connection with the transaction
contemplated by this Contract. Seller agrees to pay all fees, commissions or
other charges due to Broker, if, as and when there is a Closing hereunder,
pursuant to Seller's separate agreement with Broker. Seller and Purchaser shall
indemnify and hold the other free and harmless from and against any liabilities,
damages, costs or expenses (including, but not limited to, reasonable attorneys'
fees and disbursements) suffered by the indemnified party arising from a
misrepresentation or a breach of any covenant made by the Indemnifying party
pursuant to this Section. The provisions of this Section shall survive the
Closing or termination of this Contract.
13.2 ASSIGNMENT OF THIS CONTRACT. This Contract may not be
assigned by Purchaser without the consent of Seller. A direct or indirect
transfer, sale or assignment of the majority stock interest in a corporate
purchaser or the majority membership interest in a limited liability company
purchaser or the majority or any general partnership interest of a partnership
purchaser shall constitute an assignment of this Contract, which assignment or
attempted assignment shall be void if made without the written consent of
Seller. Notwithstanding the foregoing, Purchaser may assign its rights under
this Contract, without the consent of Seller, to an affiliate, corporation,
partnership or other entity in which either Inland Retail Real Estate Trust,
Inc. or Inland Western Retail Real Estate Trust, Inc. owns and controls a
greater than 50% economic and managerial interest, provided assignee assumes in
writing all of the obligations of Purchaser to be performed under this Contract
in a form reasonably acceptable to Seller and an original of such fully executed
assignment and assumption agreement is delivered to Seller at least five (5)
Business Days prior to the Closing. No assignment of this Contract shall relieve
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Purchaser from any of its obligations set forth herein arising prior to or after
the effective date of the assignment.
13.3 ATTORNEYS' FEES. If either party institutes a legal
proceeding against the other party in connection with this Contract, the losing
party in such proceeding shall reimburse the prevailing party all reasonable
attorneys' fees and court costs paid by the prevailing party in connection with
such proceeding.
13.4 NOTICES. All notices hereunder to Seller or Purchaser
shall be sent by Federal Express or other overnight courier which obtains a
signature upon delivery, or may be sent via facsimile, or may be delivered by
hand delivery addressed to such party at the address of such party set forth
below or at such other address as such party shall designate from time to time
by notice:
SELLER:
DDRA Community Centers Four, L.P.
c/o DRA Advisors LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
and:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
and:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
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PURCHASER:
Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx, President
Facsimile: (000) 000-0000
with a copy to:
Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, General Counsel
Facsimile: (000) 000-0000 and (000) 000-0000
Notices shall be deemed served in the case of overnight courier or
hand delivery, on the date actually delivered to or rejected by the intended
recipient, except for notice(s) which advise the other party of a change of
address of the party sending such notice or of such party's attorney, which
notice shall not be deemed served until actually received by the party to whom
such notice is addressed or delivery is refused by such party. Notices on behalf
of the respective parties may be given by their attorneys and such notices shall
have the same effect as if in fact subscribed by the party on whose behalf it is
given. Notwithstanding the foregoing provisions of this Section, notices served
by hand delivery shall be deemed served on the date of delivery if delivered at
or prior to 5:00 P.M. Eastern Time on a Business Day and on the next Business
Day if delivered after 5:00 P.M. Eastern Time on a Business Day or at any time
on a non-Business Day. Notwithstanding the foregoing provisions of this Section,
notices served by facsimile shall be deemed given upon receipt if received at or
prior to 4:00 P.M. Eastern Time on a Business Day and on the next Business Day
if received after 4:00 P.M. Eastern Time on a Business Day or at any time on a
non-Business Day.
13.5 FURTHER ASSURANCES. The parties each agree to do such
other and further acts and things, and to execute and deliver such instruments
and documents (not creating any obligations additional to those otherwise
imposed by this Contract), as either may reasonably request from time to time,
whether at or after the Closing, in furtherance of the purposes of this
Contract, including, without limitation in connection with the Proceeding. The
provisions of this Section shall survive the Closing through the period ending
August 31, 2004.
13.6 CONFIDENTIALITY.
(a) Purchaser agrees that all written documentation
furnished to Purchaser by Seller concerning the Premises, including, without
limitation, the Space Leases, Service Contracts and rent roll (all of the
aforementioned information is collectively referred to as "EVALUATION MATERIAL")
shall be treated confidentially as hereinafter provided.
(b) All Evaluation Material shall not be used or
duplicated by Purchaser in any way detrimental to Seller, or for any purpose
other than evaluating a possible
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purchase of the Premises by Purchaser. Purchaser agrees to keep all Evaluation
Material (other than information which is a matter of public record or is
provided in other sources readily available to the public other than as a result
of disclosure thereof by Purchaser or Related Parties) strictly confidential;
provided, however, that the Evaluation Material may be disclosed to the
directors, officers, employees and partners of Purchaser, and to Purchaser's
lender, attorneys and accounting firm (all of whom are collectively referred to
as "RELATED PARTIES") who need to know such information for the purpose of
evaluating a possible purchase of the Premises. The Related Parties shall be
informed of the confidential nature of the Evaluation Material and shall be
directed in writing to keep all such information in the strictest confidence and
use such information only for the purpose of evaluating a possible purchase by
Purchaser. Purchaser will promptly, upon request of Seller following the
termination of this Contract, deliver to Seller all Evaluation Material
furnished by Seller, whether furnished before or after the date hereof, without
retaining copies thereof. Purchaser will direct Related Parties to whom
Evaluation Material is made available not to make similar disclosures and any
such disclosure shall be deemed made by and be the responsibility of Purchaser.
(c) Prior to the Closing, Purchaser shall keep strictly
confidential and shall cause the Related Parties to keep strictly confidential
the provisions of this Contract and the transactions contemplated thereunder.
After the Closing Purchaser shall not make any public disclosures and shall
cause the Related Parties not to make any public disclosures mentioning Seller
or regarding the provisions of this Contract or the transactions accomplished at
the Closing without the prior written consent of Seller.
(d) The provisions of this Section 13.6 shall survive the
Closing or termination of this Contract.
13.7 SURVIVAL AND MERGER. The acceptance of the Deed by
Purchaser shall be deemed to be a full performance and discharge of every
agreement and obligation on the part of the Seller to be performed pursuant to
the provisions of this Contract, except those which are herein specifically
stated to survive the Closing, and Seller shall have no further liability with
respect to any such agreement or obligation of Seller.
13.8 RECORDING. Purchaser shall not record this Contract or any
memorandum thereof and any such recording shall be null and void and shall
constitute a default hereunder.
13.9 SUCCESSORS AND ASSIGNS. This Contract shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors and permitted assigns, if any, but
nothing contained herein shall be deemed a waiver of the provisions of Section
13.2 hereof.
13.10 ENTIRE AGREEMENT. This Contract and the Schedules and
Exhibits annexed hereto, together with the Access Agreement, constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof, and all understandings and agreements heretofore or simultaneously had
between the parties hereto are merged in and are contained in this Contract and
said Schedules and Exhibits.
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13.11 WAIVER AND MODIFICATIONS. The provisions of this Contract
may not be waived, changed, modified or discharged orally, but only by an
agreement in writing signed by the party against which any waiver, change,
modification or discharge is sought.
13.12 CAPTIONS AND TITLES. The captions or section titles
contained in this Contract and the Index, if any, are for convenience and
reference only and shall not be deemed a part of the text of this Contract.
13.13 CONSTRUCTION. The terms "hereof," "herein," and
"hereunder," and words of similar import, shall be construed to refer to this
Contract as a whole, and not to any particular article or provision, unless
expressly so stated. All words or terms used in this Contract, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require.
13.14 NON-BUSINESS DAYS. If a party is required to perform an
act or give a notice on a date that is a Saturday, Sunday or national holiday,
the date such performance or notice is due shall be deemed to be the next
Business Day.
13.15 GOVERNING LAW AND JURISDICTION. This Contract is to be
governed and construed in accordance with the laws of the State of Texas.
Purchaser and Seller hereby submit to the jurisdiction of the State and United
States District courts located within Texas in respect of any suit or other
proceeding brought in connection with or arising out of this Contract. The
provisions of this subsection shall survive the Closing or earlier termination
of this Contract.
13.16 COUNTERPARTS. This Contract may be executed in two or more
counterparts and each of such counterparts, for all purposes, shall be deemed to
be an original but all of such counterparts together shall constitute but one
and the same instrument, binding upon all parties hereto, notwithstanding that
all of such parties may not have executed the same counterpart.
13.17 NO THIRD PARTY BENEFITS. This Contract is made for the
sole benefit of Seller and Purchaser and their respective successors and assigns
(subject to Section 13.2 above) and no other person shall have any right, remedy
or legal interest of any kind by reason of this Contract.
13.18 SUBMISSION NOT AN OFFER. The submission of this Contract
to any party by Seller shall not be construed as an offer, nor shall Purchaser
have any rights with respect thereto, unless and until Seller shall execute a
copy of this Contract and deliver the same to Purchaser.
13.19 SEVERABILITY. If any provision of this Contract is
determined by a court of competent jurisdiction to be invalid or unenforceable,
such determination will not effect the remaining provisions of this Contract,
all of which will remain in full force and effect.
14. MASTER LEASE.
14.1 From and after the Closing, Seller (the "MASTER LEASE
TENANT") and Purchaser (the "MASTER LEASE LANDLORD") shall master lease ( each,
a "MASTER LEASE" and
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collectively, the "MASTER LEASES") each space identified on SCHEDULE F annexed
hereto ("CURRENT MASTER LEASE SPACE") and any Future Master Lease Space as
reduced pursuant to Section 14.4 below (Current Master Lease Space and Future
Master Lease Space, as reduced, is herein referred to collectively as, the
"MASTER LEASED SPACES" and individually, the "MASTER LEASED SPACE") pursuant to
the terms and conditions set forth in this Article 14 and on SCHEDULE F for a
(i) twenty-four (24) month term for the Current Master Lease Space and (ii) a
twelve (12) month term for the Future Master Lease Space, commencing on the
Closing Date.
14.2 Except as set forth in Section 14.4, at the Closing,
Master Lease Tenant shall deposit in escrow with Escrowee the (i) aggregate rent
(including expense recovery charges) payable by the Master Lease Tenant to
Master Lease Landlord during the term of the Master Leases for the Master Leased
Spaces (the "MASTER LEASE RENT ESCROW") set forth in SCHEDULE F, (ii) leasing
commissions ("LEASING ESCROW") set forth in SCHEDULE F and (iii) an amount for
tenant improvement allowances ("TENANT IMPROVEMENT ESCROW") set forth on
SCHEDULE F (the Master Lease Rent Escrow, Leasing Escrow and Tenant Improvement
Escrow are herein collectively referred to as the "MASTER LEASE ESCROWS"). The
Master Lease Escrows shall be held in an interest bearing account pursuant to
mutually agreeable escrow instructions set forth on EXHIBIT 14. Subject to
Section 14.3 and 14.4, commencing on the Closing Date (in a prorated amount) and
on the first day of each successive month thereafter (the final month being
prorated) occurring during the term of the Master Leases, Master Lease Landlord
shall be entitled to withdraw from the Master Lease Rent Escrow the monthly
rental payment for each Master Leased Space in accordance with SCHEDULE F
annexed hereto (each such amount is herein referred to as a "MASTER LEASE RENT
PAYMENT") less any amounts received by Purchaser from Space Tenants allocable to
Master Lease Space (and if Purchaser receives any rent from Space Tenants
allocable to the Master Lease Space after the expiration of the Master Lease
term attributable to the Master Lease term, Purchaser shall promptly remit such
amounts to Seller). If, on the expiration of the term of a Master Lease,
Purchaser had not (subject to Section 14.3(ii) below) previously entered into a
lease with a tenant for the applicable Master Leased Space, Purchaser shall be
entitled to withdraw the unapplied Master Lease Escrows (for the applicable
Master Leased Space). If, on or prior to the expiration of the term of a Master
Lease, Purchaser does enter into a lease with a tenant for the applicable Master
Leased Space, Purchaser shall be entitled to withdraw from the Leasing Escrow
and the Tenant Improvement Escrow an amount equal to the bona-fide costs
incurred by Purchaser for tenant improvements and leasing commissions with
respect to the tenant lease at the applicable Master Lease Space (not to exceed
the amounts allocated to such space set forth in SCHEDULE F). Provided, that,
any Master Lease Escrows allocable to a Master Lease Space that is leased to a
tenant during the term of the Master Lease but not utilized by Purchaser in
accordance with the preceding sentence shall be released to Seller upon a Master
Lease Termination Event.
14.3 Except as set forth in Section 14.4, the Master Lease term
(with respect to the Master Leased Space) shall terminate on the earliest to
occur of the date that (i)(A) Purchaser shall have entered into a lease with a
tenant for the applicable Master Lease Space and (B) such tenant's rental
obligations under its space lease have commenced, (ii) is thirty (30) days
following the date on which Seller delivers to Purchaser a term sheet executed
by a tenant containing terms at least as favorable to Purchaser as those set
forth on SCHEDULES F AND G if Purchaser fails to enter into a lease with such
tenant due to its refusal or failure, at any time, to conduct good faith
negotiations with such tenant or (iii) is, (A) for Future Master Lease Space,
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the earlier of (I) twelve (12) months following the date of Closing or (II) the
date a Space Tenant assumes its Space Lease in a bankruptcy proceeding and (B)
for Current Master Lease Space, twenty four (24) months following the date of
Closing (each such event in this Section 14.3(i)-(iii) is referred to as a
"MASTER LEASE RENT TERMINATION EVENT"). Upon the occurrence of a Master Lease
Rent Termination Event (A) the Escrowee shall distribute to Seller from the
Master Lease Escrows an amount equal to the Master Lease Escrows allocable to
the applicable Master Lease Space which exceeds the amount to which Purchaser is
entitled pursuant to Section 14.2 and (B) Master Lease Landlord's right to
withdraw the Master Lease Rent Payment for the applicable Master Leased Space as
set forth in Section 14.2 shall terminate and (C) Master Lease Tenant shall be
released from all liability to Master Lease Landlord under the Master Lease with
respect to such Master Leased Space.
14.4 If, prior to the Closing, Seller enters into a New Lease
in accordance with the provisions of Section 7.1 for any of the space set forth
on SCHEDULE F and the tenant's rental obligations under such New Lease have
commenced, then Seller shall have no obligation to Master Lease such space nor
any obligation to post the Master Lease Escrows set forth on SCHEDULE F for the
applicable space. In the event that the tenant's rental obligations under such
New Lease have not commenced as of the Closing Date (i) the premises demised
pursuant to the New Lease will be deemed Master Lease Space, (ii) the Master
Lease Rent Termination Event shall occur upon such tenant's rent commencement
date and (iii) any amounts incurred by Seller prior to Closing for tenant
improvements and leasing commissions in connection with such New Lease shall
reduce Seller's escrow obligations set forth on SCHEDULE F and pursuant to
Section 14.2 (with Seller being entitled to receive the balance of any Master
Lease Escrows allocable to the premises demised pursuant to such New Lease upon
the Master Lease Rent Termination Event).
14.5 Notwithstanding anything contained in this Section 14 to
the contrary, following the Closing, Purchaser shall use best efforts to enter
into tenant leases consistent with market standards for the Master Lease Spaces
and, for the Future Master Lease Space, Purchaser shall enforce any applicable
Space Leases and its remedies thereunder. Purchaser shall deliver to Seller
bi-monthly updates on the status of leasing the Master Lease Spaces and
Purchaser shall promptly respond to all written requests by Seller regarding the
leasing activity of same. Purchaser agrees to market and show the Master Leased
Spaces to proposed tenants, provided same is at a cost to Purchaser which is not
materially greater than the marketing costs of other landlords similarly
situated. Master Lease Landlord shall (i) promptly notify Master Lease Tenant of
its negotiations with a tenant for any of the Master Leased Space and (ii)
provide Master Lease Tenant with at lease five (5) Business Days prior written
notice before executing a lease for any of the Master Leased Space.
14.6 Notwithstanding anything contained in herein to the
contrary, Seller or Master Lease Tenant shall have no obligation or liability to
Purchaser or Master Lease Landlord or otherwise, pursuant to this Section 14, in
excess of the amounts set forth on SCHEDULE F.
14.7 The provisions of this Article 14 shall survive the
Closing.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Contract the day and year first above written.
I.D. No: 00-0000000 DDRA COMMUNITY CENTERS FOUR, L.P., a Texas limited
partnership
By: DRDISAN ANTONIO LLC, a Delaware limited liability
company, its general partner
By: DD SAN XXXXX CORP., a Texas corporation, its
member
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Person
I.D. No.: ________ INLAND REAL ESTATE ACQUISITIONS, INC.
By: /s/ G. Xxxxxx Xxxxxxx
----------------------------
Name: G. Xxxxxx Xxxxxxx
Title: President
As to Sections 4 and 14:
HERITAGE TITLE COMPANY, Escrowee
/s/ Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
----------------------------------------------------
Senior Vice President
As to Section 4:
CHICAGO TITLE INSURANCE COMPANY, Initial Escrowee
/s/ Xxxxx Xx Xxxxxx
--------------------------------------------
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SCHEDULE A
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
DESCRIPTION OF PROPERTY
Tract I
A 26.260 acre tract of land comprised of the remaining portion of Xxx 00 x
xxxxxxx xx Xxx 00, X.X.X. 00000, Xxx X. Xxxxxxx Subdivision as recorded in
Volume 5700, Pages 150-152, and Xxxx 00 xxx 00, X.X.X. 00000, Xxx X. Xxxxxxx
Subdivision as recorded in Volume 6800, Page 250. Said 26.260 acres being more
particularly described as follows:
BEGINNING: At a found 1/2" iron rod in the north right-of-way line of Interstate
Highway Loop 410 at the southwest corner of said Lot 22 of said Xxx
X. Xxxxxxx Subdivision and the southeast corner of Lot 21 of San
Xxxxx/Loop 410 Subdivision as recorded in Volume 4400, Pages 187-190
of the Plat Records of Bexar County, Texas for the southwest corner
of this tract:
THENCE: N 00 DEG. 00'00" E, along the west line of said Barshop Subdivision
and the east line of said San Xxxxx/Loop 410 Subdivision a distance
of 1556.13 feet to a found 1/2" iron rod with an MBC cap in the
southeasterly right-of-way line of Xxxx Road, from which a found "+"
in concrete at the northeast corner of San Xxxxx/Loop 410 Subdivision
bears N 00 DEG. 00'00" E, 7.66 feet;
THENCE: N 42 DEG. 33'39" E, along the southeasterly right-of-way line of
Xxxx Road, a distance of 422.73 feet to a set 1/2" iron rod with
yellow cap market "Xxxx Xxxxxx";
THENCE: N 42 DEG. 49' 52" E, continuing along said right-of-way, a distance
of 41.92 feet to a set 1/2" iron rod with yellow cap marked "Xxxx
Xxxxxx" at the west corner of a City of San Antonio Drainage
right-of-way, recorded in Volume 4910, Page 2024;
THENCE: Departing said right-of-way line S 44 DEG. 31'23" E, a distance of
20.02 feet to a set 1/2" iron rod with yellow cap marked "Xxxx
Xxxxxx" at the south corner of said drainage right-of-way, on a
southwest line of a 3.187 acre tract, the remaining north portion of
the said Lot 23;
THENCE: S 47 DEG. 26'21" E, along and with the southwest line of said 3.187
acre tract a distance of 485.96 feet to a set 1/2" iron rod with
yellow cap marked "Xxxx Xxxxxx" in the west line of Crownhill Park
Subdivision, Unit 6, Volume 4700, Page 62;
THENCE: S 00 DEG. 03'59" W, along the east line of Xxx 00 xxx xxxx xxxx
xxxx xx Xxxxxxxxx Xxxx Subdivision and the west line of Lot 28 The
Pavilions Subdivision, Volume 9521, Page 221, a distance of 1565.67
feet to a found 1/2" iron rod with an MBC cap in the
north right-of-way line of Interstate Highway Loop 410 at the
southeast corner of Lot 27 of said Barshop Subdivision and the
southwest corner of said Lot 28;
THENCE: N 89 DEG. 07'50" W, along the north right-of-way Loop 410, a distance
of 464.26 feet to a found 1/2" iron rod at the southwest corner of
Lot 26 and the southeast corner of Lot 24, Texaco Subdivision as
recorded in Volume 4960, Page 122;
THENCE: N 00 DEG. 01' 41" W, along the east time of said Lot 24 and along
the west line of Lot 26, a distance of 218.41 feet to a set "+" in
concrete at the northeast corner of Lot 24;
THENCE: N 89 DEG. 50' 48" W, along the north line of said Lot 24, a distance
of 200.01 feet to a set 1/2" iron rod with yellow cap marked "Xxxx
Xxxxxx" in asphalt at the northwest corner of Lot 24;
THENCE: S 00 DEG. 01' 40" E, along the west line of Lot 24, a distance of
215.91 feet to a found 1/2" iron rod in the north right-of-way line
of Interstate Highway Loop 410;
THENCE: N 89 DEG. 07' 50" W, along said right-of-way line, a distance of
20.37 feet to the POINT OF BEGINNING and containing 26.260 acres of
land in the City of San Antonio, Bexar County, Texas. Said tract
being described in accordance with a survey prepared by Xxxx-Xxxxxx
Consulting Engineers Inc.
EXCEPTING THEREFROM ALL THAT PART THEREOF DESCRIBED AS FOLLOWS:
FIELD NOTES FOR PARCEL 6
BEING 543.3 square meters (5847 square feet) of land, more or lees,
in the City of San Antonio, Bexar County, Texas. Said 543.3 square
meters (5847 square feet) of land lying in the Xxxxxx Xxxxxxx Xxxxxx
xx. 000, Xxxxxxxx 000, Xxxxxx Xxxxx no. 5009, Bexar County, Texas,
same being a portion of Xxx 00, Xxx Xxxx Xxxxx 00000, of the Xxx X.
Xxxxxxx Subdivision as recorded in volume 5700, page 150, and a
portion of Lots 26 and 27 of the Xxx X. Xxxxxxx Subdivision as
recorded in volume 6800, page 2.50, Map and Plat Records of Bexar
County, Texas, same also being a portion of a 26.260 acre tract of
land as described in an instrument to DDRA Community Centers Four,
L.P., recorded January 27, 1997 in volume 6989, page 1554, Real
Property Records of Bexar County, Texas, which 543.3 square meters
(5847 square feet) of land, more or less, being more particularly
described by metes and bounds as follows:
PART 1
Being 48.9 square meters (526 square feet) of land, more or less;
BEGINNING at a 1/2" iron rod found marking the most westerly
southwest center of the aforementioned 26.260 acres and the southeast
corner of Xxx 00 xx xxx Xxx Xxxxx Xxxx Subdivision as recorded in
volume 4400, page 187, Map and Plat Records of Bexar County, Texas,
same being the southeast corner of a 17.74 acre tract of land as
described in volume 7107, page 1096,
Real Property Records of Bexar County, Texas, same also lying in the
existing north right-of-way line (91.440 meters (300.00 feet) wide
right-of-way) of Xxxxxxxxxx Xxxxxxx 000;
(1) THENCE NORTH 00 DEG. 13' 52" West, along the west line of the
aforementioned 26.260 acres and the east line of the aforementioned
17.74 acres, a distance of 8.091 meters (26.54 feet) to a 1/2" iron
rod set with plastic cap stamped "CDS- SA, TX." for the northwest
corner of this parcel, same lying 53.810 meters (176.54 feet) left of
and at right angle to Interstate Highway 410 centerline station
81+051.568, from which a 1/2" iron rod found marking the northwest
angle corner of the said 26.260 acres bears NORTH 00 DEG. 13' 52"
West a distance of 466.318 meters (1529.91 feet);
(2) THENCE SOUTH 85 DEG. 46' 44" East a distance at 6.213 meters
(20.38 feet) to a 1/2" iron rod set with plastic cap stamped "CDS -
SA, TX." in an interior line of the aforementioned 26.260 acres for
the northeast corner of this parcel, same lying in the west line of
Lot 24 of the Texaco Subdivision as recorded in volume 4960, Page
122, Map and Plat Records of Bexar County, Texas, and the west line
of a 0.999 acre tract of land as described in volume 4153, page 2060,
Real Property Records of Bexar County, Texas, same also lying 53.420
meters (175.26 feet) left of and at right angle to Interstate Highway
410 centerline station 81+057.769;
(3) THENCE SOUTH 00 DEG. 14' 31" East, along an interior line of
the aforementioned 26.260 acres and the west line of the
aforementioned 0.999 acres, a distance of 7.700 meters (25.26 feet)
to a 1/2" iron rod found in the existing north right-of-way line of
Interstate Highway 410 for the southeast corner of this parcel;
(4) THENCE NORTH 89 DEG. 22'51" West, along the existing north
right-of-way line at the aforementioned Interstate Highway 410 and a
south line of the aforementioned 26.260 acres, a distance of 6.197
meters (20.33 feet) to the PLACE OF BEGINNING containing 48.9 square
meters (526 square feet) of land, more or less.
PART 2
Being 494.4 square meters (5321 square feet) of land, more or less;
BEGINNING at a 1/2" iron rod found marking the southeast corner of
the aforementioned Lot 27 and the southwest corner of Lot 28 of The
Pavilions subdivision as recorded in volume 9521, page 221, Map and
Plat Records of Bexar County, Texas, same lying in the existing north
right-of-way line (91.440 meters (300.00 feet) wide right-of-way) of
Interstate Highway 410, same also being the most easterly southeast
corner of the aforementioned 26.260 acres and the southwest corner of
a 13.089 acre tract of land as described in volume 6544, page 1311,
Real Property Records of Bexar County, Texas;
(5) THENCE NORTH 89 DEG. 22'51" West, along the existing north
right-of-way line of the aforementioned Interstate Highway 410 and a
south line of the aforementioned 26.260 acres, a distance of 141.498
meters (464.23 feet) to a 1/2" iron rod found for the southwest
corner of this parcel, same being the southeast corner of Lot 24 of
the Texaco Subdivision as recorded in volume 4960, page 122, Map and
Plat Records of Bexar County, Texas, same also
being the southeast corner of a 0.999 acre tract of land as described
in volume 4153, page 2060, Real Property Records of Bexar County,
Texas;
(6) THENCE NORTH 00 DEG. 14'31" West, along an interior line of the
aforementioned 26.260 acres, the west line of the aforementioned Lot
26, and the east line of the aforementioned 0.999 acres, a distance
of 4.991 meters (16.37 feet) to a 1/2" iron rod set with Texas
Department of Transportation cap for the northwest corner of this
parcel, same lying 50.710 meters (166.37 feet) left of and at right
angle to Interstate Highway 410 centerline station 81+118.800, from
which a 1/2" iron rod found marking an interior corner of the
aforementioned 26.260 acres and the northeast corner of the said
0.999 acres bears NORTH 00 DEG. 14'31" West a distance of 61.614
meters (202.15 feet);
(7) THENCE SOUTH 88 DEG. 08'13" East a distance of 85.824 meters
(281.57 feet) to a 1/2" iron rod set with Texas Department of
Transportation cap for an angle corner of this parcel, same lying
48.847 meters (160.26 feet) left of and at right angle to Interstate
Highway 410 centerline station 81+204.604;
(8) THENCE SOUTH 88 DEG. 20'45" East a distance of 55.752 meters
(182.91 feet) to a 1/2" iron rod set with plastic cap stamped
"CDS - SA, TX." in an east line of the aforementioned 26.260 acres,
and the west line of the aforementioned 13.089 acres for the
northeast corner of this parcel, from which a 1/2" iron rod found
marking the northwest corner of the said 13.089 acres bears NORTH
00 DEG. 06'08" West a distance of 236.600 meters (776.25 feet), same
also lying 47.840 meters (156.96 feet) left of and at right angle to
Interstate Highway 410 centerline station 81+260.346;
(9) THENCE SOUTH 00 DEG. 06'08" East, along an east line of the
aforementioned 26.260 acres and the west line of the aforementioned
13.089 acres, a distance of 2.120 meters (6.96 feet) to the PLACE OF
BEGINNING containing 494.4 square meters (5321 square feet) of land,
more or less;
Note: 1/2" iron rod with Texas Department of Transportation cap set
at proposed right-of-way angle points to be replaced at conveyance
with type II monuments (disc set in concrete).
Together with all of Seller's right, title and interest in and to the:
EASEMENT TRACT
Tract II
A 0.190 acre, or 8,273 square feet, tract of land out of (i) Xxx 00, X.X.X.
00000 of the San Xxxxx Loop Subdivision recorded in Volume 4400, Pages 187-190
(ii) and a replat of a portion of the said Lot 21 in the San Xxxxx/Loop 410
Subdivision recorded in Volume 9532, Pages 166-167 of the Deed and Plat Records
of Bexar County, Texas, consisting of a 26-foot easement and a 25.50-foot
drainage easement, being a joint driveway easement agreement as shown on exhibit
C-1 of an Amendment to Easement Agreement as recorded in Volume 6256, Page
1984-1998 and further described in Volume 6665, Page 892-909 of the Real
Property Records of Bexar County, Texas. Said 0.190 acre tract being more
particularly described as follows:
COMMENCING: At a found 1/2" iron rod at the southwest corner of the
Xxx X. Xxxxxxx Subdivision as recorded in Volume 5700, Pages 150, and
the southeast corner of the said remainder of Xxx 00 xx xxx Xxx Xxxxx
Xxxx Subdivision and being on the north right-of-way line of Interstate
Highway Loop 410, a 300-foot right-of-way,
THENCE: N 89 DEG. 07' 50" W, along said right-of-way a distance of 20.97 feet
to the POINT OF BEGINNING;
THENCE: N 89 DEG. 07' 50" W, continuing along said right-of-way a distance of
31.50 feet to a point;
THENCE: Generally along a curb and the west side of a driveway:
Along a nontangent curve with a central angle of 28 DEG. 45' 17", a
radius of 30.00 feet, a chord that bears N 14 DEG. 22' 33" E 14.90
feet, a total arc length of 15.06 feet to the point of tangency,
N 00 DEG. 00'00" E, continuing with said curb and drive a distance
of 185.47 feet to the beginning of a curve to the right;
THENCE: Along the arc of the said curve, with a central angle of
90 DEG. 00'00" a radius of 40.00 feet, a chord that bears N
45 DEG. 00'00" E 56.57 feet, a total arc length of 62.83 feet to a
point;
THENCE: S 90 DEG. 0'00" E 8.76 feet to a point in the east line of the said
San Xxxxx Loop Subdivision and the west line of the said Xxx X. Xxxxxxx
Subdivision;
THENCE: S 00 DEG. 00'00" W along the east line of the said San Xxxxx Loop
Subdivision a distance of 26.77 feet to a point in a curve to the left,
from which the POINT OF COMMENCING bears S 00 DEG. 00'00" W 213.92
feet;
THENCE: Along the arc of the said curve, and the east side of a curb and
driveway with a central angle of 65 DEG. 40' 58", a radius of 20.00
feet, a chord that bears S 32 DEG. 50' 25" W 21.69 feet, a total arc
length of 22.93 feet;
THENCE: Generally along a concrete curb:
SCHEDULE A: PAGE 1
S 00 DEG. 00'00" W a distance of 105.00 feet to the beginning of a
curve to the right,
Along the arc of the said curve, with a central angle of 19 DEG. 56'
56", a radius of 100.00 feet, a chord that bears S 09 DEG. 58' 27" W
34.64 feet, a total arc length of 34.82 feet to a point of reverse
curve,
Along the arc of the said curve, with a central angle of 19 DEG. 56'
54", a radius of 100.00 feet, a chord that bears S 09 DEG. 58' 28" W
34.64 feet, a total arc length of 34.82 feet to the point of tangency,
S 00 DEG. 00'00" W a distance of 12.35 feet to the beginning of a curve
to the left,
Along the arc of the said curve, with a central angle of 19 DEG. 32'
06", a radius of 30.00 feet, a chord that bears S 15 DEG. 56' 57" E
10.18 feet, a total arc length of 10.23 feet to the POINT OF BEGINNING
and containing 0.190 acres in the City of San Antonio, Bexar County,
Texas. Said tract being described in accordance with a survey prepared
by Xxxx-Xxxxxx Consulting Engineers Inc..
TRACT III: (Easement)
Appurtenant non-exclusive easements, for the benefit of Tract I, for ingress,
egress, utilities, parking and other matters as identified in the Mutual Cross
Access Easement Agreement described below, over, upon, across and under the land
described above as Tract I, as granted and/or purported to be granted in Mutual
Cross Access Easement Agreement executed by Circuit City Store, Inc., dated June
22, 1996, filed for record June 22, 1996, and recorded in Volume 6821, Page 1457
of the Real Property Records of Bexar County, Texas.
SCHEDULE A: PAGE 2
SCHEDULE B
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
"SUBJECT TO" PROVISIONS
SUBJECT TO PURCHASER'S RIGHT TO CANCEL THIS CONTRACT ON OR
BEFORE THE OUTSIDE TERMINATION DATE AS SET FORTH IN SECTION 12.1
1. Any laws, regulations or ordinances presently in effect or which will be in
effect on the Closing (including, but not limited to, zoning, building and
environmental protection) as to the use, occupancy, subdivision or
improvement of the Premises adopted or imposed by any governmental body or
the effect of any noncompliance with or any violation thereof.
2. State of facts a physical inspection of the Property would reveal.
3. State of facts shown on survey prepared by Xxxx Xxxxxx Engineers dated
September 16, 2003 and as updated on November 19, 2003, and any subsequent
state of facts a survey or inspection may reveal.
4. Water rights, claims or title to water, whether or not shown by the public
records.
5. Rights or claims of parties in actual possession of any or all of the
property.
6. Any discrepancies, conflicts, or shortages in area or boundary lines, or
any encroachments, or protrusions or any overlapping of improvements.
7. Homestead or community property or survivorship rights, if any, of any
spouse of any insured.
8. Any titles or rights asserted by anyone, including, but not limited to,
persons, the public, corporations, governments or other entities,
a. to tidelands, or lands comprising the shores or beds of navigable or
perennial rivers and streams, lakes, bays, gulfs or oceans, or
b. to lands beyond the line of the harbor or bulkhead lines as established
or changed by any government, or
c. to filled-in lands, or artificial islands, or
d. to statutory water rights, including riparian rights, or
e. to the area extending from the line of mean low tide to the line
vegetation, or the right of access to that area or easement along and
across the area.
SCHEDULE C: PAGE 1
9. Standby fees, taxes and assessments by any taxing authority for the year
2003, and subsequent years, and subsequent taxes and assessments by any
taxing authority for prior years due to change in land usage or ownership.
10. The following matters and all terms of the documents creating or offering
evidence of the matters:
a. The following easements, rights-of-way and setback lines established
by and shown on plat recorded in Volume 5700, Pages 150-152, Deed and Plat
Records of Bexar County, Texas. (Affects Tract I):
1. Twenty (20) foot utility easement along the westerly property line;
2. Sixteen (16) foot utility easement along western portion of south
property line; 3. Dedicated drainage right-of-way traversing southern
portion of property; 4. Dedicated drainage right-of-way traversing
northeasterly portion of property; 5. portion of a fifty (50) foot
building setback line; and 6. Twenty-five (25) foot building setback
line along northerly property line.
b. The following easements and setback lines established by and shown on
plat recorded in Volume 6800, Page 250 Deed and Plat Records of Bexar County,
Texas. (Affects Tract I):
1. Fifty (50) foot roadway (ingress-egress) easement; 2. Ten (10) foot
sanitary sewer easement along southerly property line; 3. Twenty-five
(25) foot building setback line along southerly property line; 4.
Twenty (20) foot drainage easement traversing southerly portion of
property; and 5. Sixteen (16) foot utility easement along southerly
property line.
c. The following easements as established by and shown on plat recorded in
Volume 9542, Page 30, Deed and Plat Records of Bexar County, Texas.
(Affects Tract I)
1. Thirty (30) foot water, gas, electric, telephone, cable TV and
sanitary sewer easement; 2. Eight (8) foot by fifteen and fifty-six
hundredths (15.56) water easement; 3. Sixteen (16) foot water, gas,
electric, telephone, cable TV and sanitary sewer easement; 4. Eighteen
(18) foot water and drainage easement; and 5. Variable width water and
drainage easement.
d. The following easement as established by and shown on plat recorded in
Volume 4400, Pages 187-190, Deed and Plat Records of Bexar County,
Texas. (Affects Tract 1):
1. Twenty (20) foot utility easement; and 2. Sixteen (16) foot utility
easement.
e. The following easements as established by and shown on plat recorded in
Volume 9536, Pages 3-4, Deed and Plat Records of Bexar County, Texas.
(Affects Tract I).
SCHEDULE C: PAGE 2
1. Variable width drainage, water, gas, electric, telephone, sanitary
sewer and cable TV easement; 2. Variable width water, gas,
electric, telephone, sanitary sewer and cable TV easement; 3.
variable width drainage, water, gas, electric, telephone and cable
TV easement; 4. Variable width drainage easements; 5. Fourteen (14)
foot electric and gas easement; 6. Proposed twenty-four (24) foot
sanitary sewer and telephone easement; and 7. Eighteen (18) foot
drainage easement.
f. The following easement as established by and shown on plat recorded in
Volume 4960, Page 122, Deed and Plat Records of Bexar County, Texas. (Affects
Tract I).
1. Sixteen (16) foot utility easement.
g. Water Line Easement, 20 feet wide, along the south 870 feet of the
west property line, as granted by instrument recorded in Volume 4477, Page 280,
Deed Records of Bexar County, Texas. (Affects Tract I).
h. Sanitary Sewer Easement, 10 feet wide, as granted by instruments
recorded in Volume 5455, Page 509 and Volume 7367, Page 236, Deed Records of
Bexar County, Texas. (Affects Tract I)
i. Electric Line Right-of-Way Agreement, 14 feet wide, as granted by
instrument recorded in Volume 6618, Page 1904, Real Property Records of Bexar
County, Texas. (Affects Tract I).
j. Sewer Line Easement Agreement recorded in Volume 4919, Page 1223, Real
Property Records of Bexar County, Texas. (Affects Tract I).
k. Electric Line Right-of-Way Agreement, adjacent to fifty (50) foot
roadway easement, granted by instrument recorded in Volume 7513, Page 446, Deed
Records of Bexar County, Texas. (Affects Tract I).
l. Lease Agreement by and between S.A.P. Associates, LLC, Landlord, and
Xxxx Stores, Inc., Tenant, as evidenced by that Memorandum of Lease dated June
4, 1996, recorded in Volume 6866, Page 2052, Real Property Records of Bexar
County, Texas. (Affects Tract I).
m. Lease Agreement by and between S.A.P. Associates, LLC, Landlord, and
Cost Plus, Inc., Tenant, as evidenced by that certain Memorandum of Lease dated
November 6, 1995, recorded in Volume 6772, Page 568, Real Property Records of
Bexar County, Texas. (Affects Tract I).
n. The following easements as established by and shown on plat recorded
in Volume 9532, Pages 166-167, Deed and Plat Records of Bexar County, Texas.
(Affects Tract II):
1. Twenty-six (26) foot water, sewer, electric, gas, telephone and
cable TV
SCHEDULE C: PAGE 3
easement; and
2. Twenty-five and one-half (25.5) foot drainage easement.
o. Terms, conditions, stipulations and provisions of Easement Agreement
created in instrument recorded in Volume 5335, Page 709, amended by instrument
recorded in Volume 6256, Page 1984, Volume 6665, Page 892 and Volume 7445, Page
724, Real Property Records of Bexar County, Texas. (Affects Tract II).
p. All easements affecting access drive and common areas as established
by and shown on plat recorded in Volume 9532, Pages 166-167, Deed and Plat
Records of Bexar County, Texas. (Affects Tract III).
q. Terms, conditions, stipulations and provisions of Mutual Cross Access
Agreement recorded in Volume 6821, Page 1457, Real Property Records of Bexar
County, Texas, as amended and recorded in Volume 7445, Page 717, Real Property
Records of Bexar County, Texas. (Affects Tract III).
r. Lis pendens notices filed in Volume 9263, Page 112, Volume 9413, Page
1456 and Volume 9558, Page 2082, Real Property Records of Bexar County, Texas,
by the State of Texas, which deal with pending condemnation suits under Cause
Numbers 2002ED0005, 2002ED0028 and 2002ED0053, involving the possible widening
of Loop 410 along parts of subject property.
SCHEDULE C: PAGE 4
SCHEDULE C
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
SPACE LEASES AS OF DECEMBER 22, 2003
SQUARE SECURITY
TENANT FEET START EXPIRE BASE RENT DEPOSIT NOTES
------ ---- ----- ------ --------- ------- -----
Half Price Books 8,000 10/22/99 10/31/04 $ 84,000
Game Stop 2,006 01/01/99 12/31/08 $ 46,640
PT's 9,875 12/14/73 12/31/12 $ 161,600
Cost Plus 18,900 09/11/96 01/31/12 $ 302,400
Xxxx Dress for Less 28,438 01/12/97 01/31/07 $ 288,640
Designer Shoe Warehouse 22,000 04/24/97 04/30/07 $ 374,000
Best Buy 58,000 09/16/96 01/31/12 $ 855,500
Xxxxxx'x 65,017 09/21/96 01/31/17 $ 754,650
OfficeMax 23,229 11/17/02 11/30/12 $ 261,326
Beall's 29,847 03/20/03 01/31/14 $ 194,006
Lifeway Christian 6,000 11/14/96 11/13/06 $ 132,000
Petco 13,650 11/10/96 11/30/11 $ 278,187
Pearle Vision 3,500 12/16/96 12/31/06 $ 120,750
All Battery Center 1,600 05/08/02 05/31/07 $ 36,800
Successories of Texas 1,200 09/02/03 09/30/08 $ 26,400 $ 2,800.00 See #4 on Schedule E Tenant Estoppel dated
December 19, 2003 contains handwritten
comments from Supercuts that Supercuts plans
to vacate its premises in January 2004.
Supercuts 1,295 11/22/96 11/30/06 $ 33,670
David's Bridal 12,000 11/04/99 11/30/09 $ 186,240
SCHEDULE D: PAGE 1
SCHEDULE D
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
SERVICE CONTRACTS AS OF DECEMBER ____, 2003
SUBJECT TO PURCHASER'S RIGHT TO CANCEL THIS CONTRACT ON OR
BEFORE THE OUTSIDE TERMINATION DATE AS SET FORTH IN SECTION 12.1
1. Service/Material Agreement dated March 28, 2003 with JSMA Enterprises,
Inc. for pressure washing services which expires 3/31/04. This Agreement
can be terminated with 1 day notice.
2. Service/Material Agreement dated March 4, 2003 with MLC Landscaping Co.,
Inc. for landscaping maintenance and service which expires February 29,
2004. This Agreement can be terminated with 1 day notice.
3. Service/Material Agreement dated October 1, 2003 with Price Protective
Services, Inc. for security services which expires September 30, 2004.
This Agreement can be terminated with 1 day notice.
SCHEDULE D: PAGE 1
SCHEDULE E
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
PENDING LITIGATION
SUBJECT TO PURCHASER'S RIGHT TO CANCEL THIS CONTRACT ON OR
BEFORE THE OUTSIDE TERMINATION DATE AS SET FORTH IN SECTION 12.1
1. The Proceeding
2. Xxxxx XxXxx as claimant pursuant to a incident on November 5,
2000 (covered by insurance).
3. Proceeding by Seller against Tri-R LLC (doing business as
Jazzy Beans Cafe) to gain legal possession of premises and for
collection of delinquencies.
4. Letter from ISO Group, Inc. d/b/a Successories dated December
10, 2003 regarding its pylon sign. Seller does not believe
this letter has merit. See notice to Successories from
Landlord dated December 19, 2003.
SCHEDULE D: PAGE 1
SCHEDULE F
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
MASTER LEASE GUIDELINES
MASTER LEASE
SPACE: 530 520 426 440
SQUARE FEET: 7,200 4,800 1,200 2,605 TOTAL
---------------------------------------------------------
BASE RENT/SQ. FT. $ 18.00 $ 23.00 $ 23.00 $ 20.00
EXPENSE RECOVERY/SQ. FT. $ 5.76 $ 5.76 $ 5.76 $ 5.76
---------------------------------------------
TOTAL RENT/SQ. FT. $ 23.76 $ 28.76 $ 28.76 $ 25.76
ANNUAL MASTERLEASE PAYMENT $ 171,072 $ 138,048 $ 34,512 $ 67,105
---------------------------------------------------------
2 YEAR MASTERLEASE PAYMENT $ 342,144 $ 276,096 $ 69,024 $ 134,210 $ 821,474
=========================================================
---------------------------------------------------------
MONTHLY MASTERLEASE PAYMENT $ 14,256 $ 11,504 $ 2,876 $ 5,592 $ 34,228
=========================================================
TENANT IMPROVEMENTS ($15.00/SF) $ 108,000 $ 72,000 $ 18,000 $ 39,075 $ 237,075
=========================================================
LEASING COMMISSIONS ($3.00/SF) $ 21,600 $ 14,400 $ 3,600 $ 7,815 $ 47,415
=========================================================
Pro forma rents for the Future Master Lease Space shall be equal to the
minimum annual base rent payable (as set forth on Schedule C) for the
applicable Future Master Lease Space as of the date hereof.
SCHEDULE D: PAGE 1
SCHEDULE G
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
LEASING PARAMETERS
1. The proposed use shall be a use typically found in retail centers of this
type.
2. The proposed use does not violate any exclusions or restrictions existing in
any other Space Tenant's lease or covenants existing in any other documents
of record unless such use is consented to by the appropriate Space Tenant.
3. The lease is for an original term of not less than 3 years, nor more than 10
years.
4. Tenant will not be provided concessions which exceed current market
standards for same.
5. All leases shall be prepared substantially in accordance with the small shop
Space Tenant lease form reviewed by Purchaser prior to the Outside
Termination Date subject to commercially reasonable variances and prevailing
market parameters, provided, that, for tenants occupying 7,000 square feet
or greater of space at the Premises, Seller shall be permitted to use such
tenant's lease form.
6. The proposed tenant (or its principals) has successful retail and/or
business operating experience including, but not limited to, three years in
the type of business to be operated at the leased premises. In the absence
of three years experience, the prospective tenant must be an approved
franchisee or a recognized franchisor.
7. The proposed tenant (or the franchisor, if applicable) shall have at least
one other location.
8. The proposed tenant and/or lease guarantor has an aggregate net worth of at
least two years of the total aggregate annualized rent, including all
expenses, for any tenant of the leased premises up to 7,000 square feet.
9. The leases for tenants occupying less than 7,000 square feet of space at the
Premises will not include rent reductions, co-tenancies, or early
termination clauses of any kind. The leases for tenants occupying 7,000
square feet or greater of space at the Premises may, at Seller's sole
election, include co-tenancies but will not include rent reductions or early
termination clauses without Purchaser's prior consent to such reductions or
termination clauses.
10. In addition to tenant's base rent, the leases will include 100%
reimbursement for taxes,
SCHEDULE D: PAGE 1
insurance and common area maintenance, including a 10% administrative charge
for CAM (or, in the alternative, providing for a 2-1/2% management fee).
11. Purchaser shall act in a commercially reasonable manner and in good faith
during its review and determination of the credit worthiness of any tenant
and/or guarantor. Also, Purchaser agrees to respond to Seller deliveries of
tenant/guarantor credit information within 5 business days after its receipt
by Purchaser, otherwise said tenant/guarantor credit worthiness shall be
deemed approved by Purchaser.
12. Any lease renewals will be at rental rates greater than the current market
rate.
SCHEDULE D: PAGE 2
EXHIBIT 1
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
FORM OF DEED TO THE PREMISES
SPECIAL WARRANTY DEED
THAT THE UNDERSIGNED, _______________________, a __________________
("Grantor"), for and in consideration of the sum of TEN DOLLARS ($10.00) cash,
and other good and valuable consideration in hand paid by the Grantee, herein
named, the receipt and sufficiency of which is hereby fully acknowledged and
confessed, has GRANTED, SOLD and CONVEYED, and by these presents does hereby
GRANT, SELL and CONVEY unto ______________________ ("Grantee") whose current
address is ________________________, all of that certain real property situated
in _______ County, Texas, more particularly described in EXHIBIT A attached
hereto and incorporated herein by reference, together with all buildings,
improvements and fixtures located thereon, and all rights, ways, privileges and
appurtenances pertaining thereto (collectively, the "Property")
This conveyance, however, is made and accepted subject to all matters of
record (the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances belonging in any way to the Property, subject to the Permitted
Exceptions and other provisions expressly stated herein, unto Grantee and
Grantees successors and assigns, forever, and Grantor does hereby bind Grantor
and Grantor's successors and/or assigns, to WARRANT and FOREVER DEFEND all and
singular the Property unto Grantee, and Grantee's successors and/or assigns,
against every person whomsoever claiming or to claim the same or any part
thereof, by, through or under Grantor, but not otherwise.
Current ad valorem taxes on the Property having been prorated, the payment
thereof is assumed by Grantee.
EXECUTED this day of ____, 20____.
-------------------------,
By:
--------------------,
its
-------
EXHIBIT 1: PAGE 3
By:
--------------------------
Name:
Title:
State of_____________ Section
Section
County of____________ Section
The foregoing was acknowledged before me on the ____ day of ___________,
200___, by ______________________, of _______________________, the
_____________________ of ___________________, a _____________________on behalf
of said ________________________.
Given under my hand and seal of office on ______________, 20______.
---------------------------
NOTARY PUBLIC, STATE OF____
---------------------------
PRINTED NAME OF NOTARY
MY COMMISSION EXPIRES:
----------------------
EXHIBIT 1: PAGE 4
EXHIBIT 2
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
FORM OF ASSIGNMENT OF THE SPACE LEASES
KNOW ALL MEN that DDRA COMMUNITY CENTERS FOUR, L.P. ("Assignor"), in
consideration of Ten ($10.00) Dollars and other good and valuable consideration,
received from [_________________]("Assignee"), does hereby assign, transfer and
deliver unto Assignee, all of its right, title and interest in and to those
certain leases for space at the premises known as La Plaza del Norte Shopping
Center, San Antonio, Texas (the "Leases") listed on Schedule A annexed hereto
including any security deposits held by Assignor as of the date hereof, subject
to the rights Assignor has retained under Section 9.4 of that certain Contract
of Sale (the "Contract") dated _______, 2003, between Assignor and Assignee for
the Premises.
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of the Leases and subject as aforesaid.
AND Assignee does hereby acknowledge receipt of the Leases and
security deposits so delivered, and does hereby (a) accept the within assignment
and (b) assume the performance of all the terms, covenants and conditions of the
Leases on the part of the lessor which are to be performed or which arise from
and after the date hereof.
This assignment and assumption agreement shall inure to the benefit of
Assignee and Assignor and their respective successors and assigns, and shall be
governed by the laws of the State of Texas. This assignment and assumption
agreement may not be modified, altered or amended, or its terms waived, except
by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be, nor
shall they be construed to be, for the benefit of any third party.
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT 2: PAGE 1
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement
this ________ day of _____________2003.
ASSIGNOR
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By:
-------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC.,
an Ohio corporation, its general partner
By:
------------------
Name:
Title:
ASSIGNEE:
[_______________________________]
By:
-----------------------------------------
Name:
Title:
EXHIBIT 2: PAGE 2
EXHIBIT 3
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
FORM OF ASSIGNMENT OF SERVICE CONTRACTS
KNOW ALL MEN that DDRA COMMUNITY CENTERS FOUR, L.P. ("Assignor"), in
consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable
consideration, received from [_________________________________] ("Assignee"),
does hereby assign, transfer and deliver onto Assignee, all of its right, title
and interest in and to those certain service contracts relating to the operation
or maintenance of the premises known as La Plaza del Norte Shopping Center, San
Antonio, Texas, which service contracts are listed in Schedule A annexed hereto
(the "Contracts").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions contained.
AND Assignee does hereby acknowledge receipt of the Contracts so
delivered, and does hereby (a) accept the within assignment and (b) assume the
performance of all the terms, covenants and conditions of the Contracts on the
Assignor's part to be performed thereunder from and after the date hereof.
This assignment is made without warranty or representation by Assignor
and without recourse to assignor in any manner whatsoever, express or implied.
This assignment and assumption agreement shall inure to the benefit of
Assignee and Assignor and their respective successors and assigns, and shall be
governed by the laws of the State of Texas. This assignment and assumption
agreement may not be modified, altered or amended, or its terms waived, except
by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be, nor
shall they be construed to be, for the benefit of any third party.
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT 3: PAGE 1
IN WITNESS WHEREOF, Assignor and Assignee have executed this agreement this
_______day of ________________2003.
ASSIGNOR
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By:
-------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC.,
an Ohio corporation, its general partner
By:
-----------------
Name:
Title:
ASSIGNEE:
[_______________________________]
By:
-----------------------------------------
Name:
Title:
EXHIBIT 3: PAGE 2
EXHIBIT 4
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
FORM OF ASSIGNMENT OF LICENSES, PERMITS,
GUARANTEES AND WARRANTIES
KNOW ALL MEN that DDRA COMMUNITY CENTERS FOUR, L.P. ("Assignor"), in
consideration of Ten ($10.00) Dollars and other good and valuable consideration,
receipt whereof is hereby acknowledged from [_________________________________]
("Assignee"), does hereby assign, transfer and deliver unto Assignee, all of its
right, title and interest in and to any and all existing licenses and permits
presently held by Assignor affecting the premises known as La Plaza del Norte
Shopping Center, San Antonio, Texas (the "Premises") and any and all guarantees
and warranties in connection with any work or services performed or equipment
installed in and improvements erected on the Premises (collectively, the
"Licenses and Guarantees").
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, forever, from and after the date hereof, subject to the terms,
covenants, conditions and provisions of the Licenses and Guarantees.
This assignment is made without warranty or representation by the
Assignor, including, without limitation, any warranty or representation that
Assignor has any right in the Licenses and Guarantees or that the Licenses and
Guarantees are transferable, and without recourse to Assignor in any manner
whatsoever.
This assignment agreement shall inure to the benefit of Assignee and
its successors and assigns and shall be governed by the laws of the State of
Texas. This assignment agreement may not be modified, altered or amended, or its
terms waived, except by an instrument in writing signed by the parties hereto.
None of the provisions of this instrument are intended to be, nor
shall they be construed to be, for the benefit of any third party.
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT 4: PAGE 1
IN WITNESS WHEREOF, Assignor has executed this agreement this _______ day of
________________ 2003.
ASSIGNOR:
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas
limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By:
-------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC.,
an Ohio corporation, its general partner
By:
--------------------
Name:
Title:
EXHIBIT 4: PAGE 2
EXHIBIT 5
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
NOTICE TO TENANTS
OF
LA PLAZA DEL NORTE SHOPPING CENTER
(THE "PREMISES")
Dear Tenant:
Please be advised that the Premises have this day been conveyed and
your lease (the "Lease") has been assigned by DDRA COMMUNITY CENTERS FOUR, L.P.
("Prior Owner"), to [________________________________________] a [_________]
("New Owner").
New Owner has assumed all of the obligations under your Lease accruing
from and after this day, including any obligations to return your security
deposit (in the amount of $________) in accordance with the terms of your Lease.
Notwithstanding anything contained herein to the contrary, Seller retains the
right to collect any delinquent rents pertaining to the period prior to
________________________ [CLOSING DATE] as well as the right to collect rent and
reconcile operating expenses (and percentage rent) under your Lease for the 2003
calendar year and prior periods.
Until further notice, all correspondence and notices shall be
directed, and all rents, additional rents and other charges under the Lease
shall be paid to New Owner at the addresses attached hereto as Exhibit A.
You are hereby requested to have the insurance policies required under
the Lease amended to add New Owner, as additional insured thereunder, and have
the certificate of insurance indicating such amendment forwarded to the New
Owner.
EXHIBIT 5: PAGE 1
Your security deposit, if any, under the Lease has been transferred to
New Owner.
Dated:_________, 2003.
PRIOR OWNER: DDRA COMMUNITY CENTERS FOUR, L.P.,
a Texas limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware
limited liability company, its general partner
By: DD SAN XXXXX CORP., a Texas
corporation, its member
By:
-------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC.,
an Ohio corporation, its
general partner
By:
--------------------
Name:
Title:
NEW OWNER: [_________________________________]
By:
--------------------------------
Name:
Title:
EXHIBIT 5: PAGE 2
EXHIBIT A
ADDRESSES
For All Notices:
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________
With a copy to:
______________________________
C/O [PROPERTY MANAGER]
______________________________
______________________________
______________________________
Attention: Property Manager - La Plaza del Norte Shopping
Center
Telephone: ____-_____-_____
Telecopy: ____- ____-_____
Payment Address:
______________________________
c/o___________________________
______________________________
______________________________
EXHIBIT 5: PAGE 3
EXHIBIT 6
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
NOTICE TO CONTRACTORS
UNDER SERVICE XXXXXXXXX
XX
XX XXXXX XXX XXXXX XXXXXXXX XXXXXX
(THE "PREMISES")
Dear Contractor:
Please be advised that the Premises have this day been conveyed and
your service contract has been assigned from DDRA COMMUNITY CENTERS FOUR, L.P.
("Prior Owner"), to [___________________________________] a
[______________________] ("New Owner").
Until further notice, all correspondence, notices and invoices shall
be directed to the New Owner at the following address:
______________________________
______________________________
______________________________
______________________________
Dated: ________, 2003
EXHIBIT 6: PAGE 1
PRIOR OWNER: DDRA COMMUNITY CENTERS FOUR, L.P.,
a Texas limited partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited
liability company, its general partner
By: DD SAN XXXXX CORP., a Texas corporation, its
member
By:
-----------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By:
----------------
Name:
Title:
NEW OWNER: [___________________________________]
By:
-------------------------
Name:
Title:
EXHIBIT 6: PAGE 2
EXHIBIT 7
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC. AS PURCHASER
TENANT ESTOPPEL CERTIFICATE
TO:
_____________________
___________________
_____________________
("Lender")
Inland (entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
DDRA Community Centers Four, L.P.
c/o DRA Advisors LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Re: Lease Agreement dated _____________________ as amended pursuant to Section
1(a) below ("Lease"), between _________ as "Landlord", and _________, as
"Tenant", guaranteed by ("Guarantor") for leased premises known as
____________ (the "Premises") of the property commonly known
as (the "Property").
1. Tenant hereby certifies that the following information with respect to the
Lease is accurate and complete as of the date hereof.
a. Dates of all amendments, letter
EXHIBIT 7: PAGE 1
agreements, modifications and
waivers related to the Lease
b. Lease Commencement Date
c. Expiration Date
d. Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases _______________
_______________
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options _______Additional Terms for _______
years at $___________ per year
i. Termination Options (excluding Termination Date ________________
any right of Tenant to terminate Fees Payable ________________
pursuant to a casualty or
condemnation)
2. Tenant further certifies that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been sublet by
Tenant except as otherwise stated in Section 1(a) above;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Landlord pursuant to the Lease has been completed and
any payments, credits or abatements required to be given by Landlord to
Tenant have been given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears for more than 30 days on any base rent
payments, except ___________________;
f. To Tenant's knowledge, Landlord is not in default under the Lease and no
event has occurred which, with the giving of notice or passage of time,
or both, could result in a default by Landlord;
g. To Tenant's knowledge, Tenant has no existing defenses, offsets, liens,
claims or credits against the payment obligations under the Lease;
h. Tenant has not been granted any options or rights to terminate the Lease
earlier than the Expiration Date (except as stated in paragraph 1(i));
i. Tenant has not been granted any options or rights of first refusal to
purchase the
EXHIBIT 7: PAGE 2
Premises or the Property;
j. Tenant has not received written notice of violation of any federal,
state, county or municipal laws, regulations, ordinances, orders or
directives relating to the use or condition of the Premises or the
Property, except in connection with the condemnation affecting the
Property and except: ______________;
k. the Tenant has not been granted any operating exclusives for the
Property except as set forth in the Lease; and
l. Rent has been paid through __________, 2003.
m. No hazardous waste or toxic substances, as defined by all applicable
federal, state or local statutes, rules or regulations have been
disposed, stored or treated on or about the Premises or the Property by
Tenant;
n. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein except in connection with the
existing loan with Xxxxx Fargo Bank, National Association; and
o. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws, except:
___________________.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and Lender is about to provide Purchaser with
financing which shall be secured by a Deed of Trust (or Mortgage), Security
Agreement and Assignment of Rents, Leases and Contracts ("Mortgage") upon
the Property. Tenant acknowledges that Purchaser's interest in the Lease
(as landlord) will be duly assigned to Lender as security for Lender's loan
to Purchaser (as new landlord). From and after the date Tenant receives
written notice from Landlord and Purchaser of the sale of the Property, all
rent payments under the Lease shall be paid to Purchaser (as new landlord)
and shall continue to be paid to Purchaser (as new landlord) in accordance
with the terms of the Lease until Tenant is notified otherwise in writing
by Lender or its successors and assigns. In the event that Lender succeeds
to Purchaser's (as new landlord) interest under the Lease, Tenant agrees to
attorn to Lender at Lender's request provided Lender agrees that unless
Tenant is in default under the Lease (and any cure periods have expired
after notice), the Lease will remain in full force and effect. Tenant
further acknowledges and agrees that Landlord, Purchaser, Lender and their
respective successors and assigns shall have the right to rely on the
information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
Its:
--------------------------
Date:___________, 2003
EXHIBIT 7: PAGE 3
EXHIBIT 8
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
FORM OF XXXX OF SALE
DDRA COMMUNITY CENTERS FOUR, L.P. ("Grantor") for good and valuable
consideration, the receipt and the sufficiency of which is hereby acknowledged,
by these presents, does, without representation by, or warranty or recourse
against, Grantor, convey, assign, transfer, sell, deliver and set over unto
____________________, its successors and assigns, all of Grantor's right, title
and interest in and to the personal property transferred pursuant to that
certain Contract of Sale between Grantor and [____________________________ ]
dated __________________, 2003 used in connection with the operation of the
shopping center known as La Plaza del Norte Shopping Center, San Antonio, Texas.
IN WITNESS WHEREOF, Grantor has caused this Xxxx of Sale to be signed as of
this _____ day of ___________, 2003.
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas limited
partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited liability
company, its general partner
By: DD SAN XXXXX CORP., a Texas corporation, its
member
By:
--------------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By:
----------------------
Name:
Title:
EXHIBIT 9
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
ACCESS AGREEMENT
INTENTIONALLY DELETED
EXHIBIT 10
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
TITLE CERTIFICATE
The undersigned, a Delaware limited liability company, hereby certifies to
[____________] (the "Insurer") the following:
1. The undersigned is the owner ("Owner") of certain property (the
"Property") situated in the City of San Antonio, State of Texas, described in
title commitment No._________ (the "Title Commitment") issued by Insurer.
2. The only tenants of the undersigned are tenants under the leases
(the "Leases") set forth on the rent roll annexed hereto as Exhibit A (or
subleases thereunder).
3. During the period of 120 days immediately preceding the date of
this certification no improvements or alterations have been made (other than
minor repairs) to the Property by or on behalf of Owner that have not been paid
for and that no claims against Owner of laborers or materialmen remain unpaid
(or if unpaid will be paid in the ordinary course of business) for work
performed by or on behalf of Owner and that no material incorporated into the
Property by Owner is subject to a security interest (other than in connection
with any mortgage described in the Title Commitment).
4. No proceedings in bankruptcy or receivership have been instituted
by or against Owner which are now pending, nor has the Owner made any assignment
for the benefit of creditors which is in effect as to the Property.
5. Owner agrees not to cause any lien or encumbrance to be filed
against the Property between the date hereof and the earlier of (a) the date the
documents creating the interest being insured pursuant to the Title Commitment
have been filed of record and (b) three (3) days following the date hereof.
6. This certification is made for the purpose of inducing Insurer to
issue its title policy insuring the Property.
Dated this ____ day of _______, 2003.
[SIGNATURES ON THE FOLLOWING PAGE]
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas limited
partnership
By: DRDI SAN ANTONIO LLC, a Delaware limited liability
company, its general partner
By: DD SAN XXXXX CORP., a Texas corporation, its
member
By:
--------------------------
Name:
Title:
By: XXXXX COMMUNITY CENTERS, INC., an Ohio
corporation, its general partner
By:
------------------
Name:
Title:
SCHEDULE A
LIST OF LEASES
EXHIBIT 11
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
SELLER'S ESTOPPEL CERTIFICATE
TO:
_____________________
___________________
_____________________
("Lender")
Inland (entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Re: Lease Agreement dated ______________ as amended pursuant to Section 1(a)
below ("Lease"), between ______________________ as "Landlord", and, as
"Tenant", guaranteed by _____________________________ ("Guarantor") for
leased premises known as (the "Premises") of the property commonly known as
(the "Property").
1. Landlord hereby certifies that the following information with respect to
the Lease is accurate and complete as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and waivers
related to the Lease
b. Lease Commencement Date
c. Expiration Date
d. Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases _______________
_______________
f. Square Footage of Premises
g. Security Deposit Received by
Landlord
h. Renewal Options ______ Additional Terms for ______
years at $_______ per year
i. Termination Options (excluding Termination Date ____________
any right of Tenant to terminate Fees Payable ____________
pursuant to a casualty or
condemnation)
2. Landlord further certifies that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. to Landlord's knowledge, the Lease has not been assigned and the
Premises have not been sublet by Tenant except as otherwise stated in
Section 1(a) above;
c. to Landlord's knowledge, Tenant has accepted and is occupying the
Premises, all construction required by the Landlord pursuant to the
Lease has been completed and any payments, credits or abatements
required to be given by Landlord to Tenant have been given;
d. To Landlord's knowledge, Tenant is [or is not] open for business or is
operating its business at the Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance;
f. To Landlord's knowledge, Landlord is not in default under the Lease and
no event has occurred which, with the giving of notice or passage of
time, or both, could result in a default by Landlord;
g. To Landlord's knowledge, Tenant has no existing defenses, offsets,
liens, claims or credits against the payment obligations under the
Lease;
h. Tenant has not been granted any options or rights to terminate the Lease
earlier than the Expiration Date (except as stated in paragraph 1(i));
i. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
j. To Landlord's knowledge, Tenant has not received written notice of
violation of any federal, state, county or municipal laws, regulations,
ordinances, orders or directives relating to the use or condition of the
Premises or the Property, except in connection with the condemnation
affecting the Property and except: ______________;
k. the Tenant has not been granted any operating exclusives for the
Property except as set forth in the Lease; and
l. Rent has been paid through _________, 2003.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and Lender is about to provide Purchaser with
financing which shall be secured by a Deed of Trust (or Mortgage), Security
Agreement and Assignment of Rents, Leases and Contracts ("Mortgage") upon
the Property. Landlord acknowledges and agrees that Purchaser and Lender
and their respective successors and assigns shall have the right to rely
on the information contained in this Certificate. The undersigned is
authorized to execute this Estoppel Certificate on behalf of Landlord.
[LANDLORD]
By:
Its:
------------------
Date:_________, 2003
EXHIBIT 12
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
REA ESTOPPEL CERTIFICATE
The undersigned _________________, a ____________ corporation
("_________"), is a party to the ________________ (REA) recorded on
_______________________, _______ in Book _____, Page _____ of the Public Records
of ________ County, _____ (the "REA"), between and among _____,
___________________, ___________________, a ______________ ("Developer"), and
_____________________, a _____________ (corporation) ("___________"), with
respect to the ___________________ Shopping Center in _______, _______ (the
"Shopping Center"). ____________ has been advised that Developer is in process
of selling Developer's interest in the Shopping Center to INLAND (entity) having
a notice address of 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention:
Vice Chairman (together with its lender, and successors and assigns,
collectively referred to herein as "Purchaser"). _________________ hereby states
to Purchaser and Developer as follows (without undertaking any investigation to
verify the accuracy of the statements made):
1. The REA has not been amended except: ________________.
2. The REA is presently in full force and effect according to its terms.
3. ________ has neither given nor received any written notice of default
with respect to the REA. To the best of ________ 's knowledge (whereby
knowledge shall be limited to the party signing this REA Estoppel
Agreement on behalf of ________), neither _______ nor any other party
is in default under the REA.
This Statement does not (a) constitute a waiver of any rights ___________
may have under the REA, or (b) modify, alter, or change any of the terms or
conditions of the REA.
No officer or employee signing this Statement on behalf of ___________
shall have any liability as a result of having given this statement.
The statements contained in this Statement are not affirmative
representations, warranties, covenants or waivers, and _______ shall not be
liable to Developer, Purchaser or any third party on account of any information
herein contained, notwithstanding the failure, for any reason, to disclose
and/or correct relevant information. This Statement is given for Purchaser's and
Developer's information and may not be relied upon by anyone other than
Purchaser and Developer, or in connection with any transaction other than the
transaction described above. Capitalized terms used in this Statement, unless
otherwise defined, will have the meanings ascribed to such terms in the REA.
-12-
Dated as of ______________, 2003.
------------------------------
a _________(CORPORATION)
By:
-----------------------------------
As Its:
-13-
EXHIBIT 13
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
GUARANTOR ESTOPPEL CERTIFICATE
Date: _________________, 2003
To: ___________
_________________________
_________________________
_________________________
("Lender")
Inland Real Estate Acquisitions, Inc., and
Inland Southeast _______, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Re: Guaranty Agreement dated ___________ ("Guaranty of Lease") pertaining
to that certain Lease dated _____________________ between as Landlord and
_______________________________ as Tenant for leased premises known as
______________________________ (the "Premises") located at the property
commonly known as (the "Property").
1. Guarantor certifies to Lender and Purchaser that: (a) the Guaranty of
Lease has been properly executed by Guarantor and is presently in full
force and effect without amendment or modification except as noted
above; (b) Guarantor has no existing defenses, offsets, liens, claims
or credits against the obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Purchaser is about
to acquire title to the Property and a lender is about to provide
Purchaser with financing which shall be secured by a deed of trust (or
mortgage), security agreement and assignment of rents, leases and
contracts upon the Property. Guarantor further acknowledges and agrees
that Purchaser and its lender and their respective successors and
assigns shall have the right to rely on the information contained in
this Certificate.
3. The undersigned is authorized to execute this Guarantor Estoppel
Certificate on behalf of Guarantor.
[GUARANTOR]
By:
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EXHIBIT 14
ATTACHED TO AND FORMING PART OF THE CONTRACT BETWEEN
DDRA COMMUNITY CENTERS FOUR, L.P., AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC., AS PURCHASER
ESCROW AGREEMENT
This Escrow Agreement (this "AGREEMENT") is entered into as of January
___, 2004 by and between DDRA Community Centers Four, L.P. ("DDRA"),
[___________] ("Purchaser") and Heritage Title Company ("ESCROWEE").
RECITALS:
A. DDRA and Purchaser entered into a contract of sale (the
"CONTRACT") dated as of [______________] with respect to the sale of La Plaza
Del Norte located in San Antonio, Texas (the "PARCEL").
B. Pursuant to Section 14 of the Contract, at Closing (as defined in
the Contract), DDRA has agreed to enter into master leases (each a "MASTER
LEASE" and collectively, the "MASTER LEASES") with Purchaser for the space set
forth on Exhibit A annexed hereto existing at the Parcel.
NOW THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
1. All capitalized terms set forth herein shall have the meanings
ascribed to such terms in the Contract unless otherwise defined herein.
2. To fund DDRA's Master Lease obligations as to rent, leasing
commissions and tenant improvements, all as set forth in Section 14 of the
Contract, DDRA has on the date hereof deposited in escrow (the "MASTER LEASE
ESCROW") with Escrowee the amount (the "MASTER LEASE ESCROW AMOUNT") set forth
on Exhibit A annexed hereto. The Master Lease Escrow Amount shall be disbursed
by Escrowee subject to, and in accordance with, the terms and provisions of this
Paragraph 2.
A. The portion of the Master Lease Escrow Amount identified as
the sum of [_________________] ($__________ ) is hereby referred to as the
Master Lease Rent Escrow. Purchaser shall receive a prorated credit from the
Master Lease Rent Escrow on the date of Closing for the rent attributable to the
Master Lease Space from the date of Closing through the end of the month in
which Closing occurs. Thereafter, Purchaser shall receive (and Escrow Agent is
hereby authorized to pay to Purchaser ( subject to the terms of this Section
2(A) without further direction from DDRA) monthly payments, on the fifth (5th)
day of each month (the "MONTHLY PAYMENT DATE"), for the applicable month's rent,
from the Master Lease Rent Escrow, in the sum of [________] (prorated for any
partial months) (the "Rent Escrow Monthly Payment"). DDRA shall have the right
to object to any Rent Escrow Monthly Payment provided that DDRA sends written
notice of such objection to Purchaser and Escrowee on or
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before the third (3rd) day prior to the applicable Monthly Payment Date ("RENTAL
PAYMENT OBJECTION"). If Escrowee does receive such Rental Payment Objection on
or before the third (3rd) day prior to the applicable Monthly Payment Date or if
for any other reason Escrowee in good faith shall elect not to make such
payment, Escrowee shall forward a copy of the Rental Payment Objection, if any,
to Purchaser, and continue to hold the applicable Rent Escrow Monthly Payment
unless otherwise directed by written instructions from the parties to this
Agreement or by a judgment of a court of competent jurisdiction In any event,
Escrowee shall have the right to refrain from taking any further action with
respect to the Master Lease Rent Escrow until it is reasonably satisfied that
such dispute is resolved or action by Escrowee is required by an order or
judgment of a court of competent jurisdiction. Escrowee, by signing this
Agreement at the end hereof where indicated, signifies its agreement to hold the
Master Lease Rent Escrow for the purposes as provided in this Agreement.
B. (I) Beginning on the date hereof and continuing through and
including the date on which the term of the Master Leases expire pursuant to
Section 14 of the Contract (such period is hereinafter referred to as the
"MASTER LEASE ESCROW PERIOD"), Purchaser and/or DDRA may request (each such
request, a "DISBURSEMENT REQUEST", each such requesting party the "REQUESTING
PARTY" and each such non-requesting party, the "NON-REQUESTING PARTY") by
written notice to Escrowee (with a copy of such request to the Non-Requesting
Party), that Escrowee disburse (each a "DISBURSEMENT") a portion of the Master
Lease Escrow Amount to the Requesting Party. Each such Disbursement Request
shall certify that the amount being requested is due to the Requested Party and
shall include a reasonably detailed description for which the Disbursement
Request is being made, including a stipulation as to the specific purpose of the
Disbursement, being either rent, leasing commissions or tenant improvements. On
each Master Lease Rent Termination Event, after receiving DDRA's Disbursement
Request and subject to Sections 2(B)(II) and (C)below, Escrowee is authorized
and directed to deliver to DDRA any unused portion of the Master Lease Escrow
Amount (including any interest earned thereon) allocable to the applicable
space. Notwithstanding anything contained herein to the contrary, Purchaser
shall not be permitted to make a Disbursement Request (pursuant to this Section
2 (B)) with respect to the Master Lease Rent Escrow; Section A above shall
govern Purchaser's rights with respect to same.
(II) If Escrowee does not receive a written objection from
the Non Requesting party to the proposed Disbursement within five (5) business
days after such demand is received by Escrowee and the Non-Requesting Party,
Escrowee is hereby authorized and directed to pay such Disbursement to the
Requesting Party. If Escrowee does receive such written objection within such
five (5) business day period or if for any other reason Escrowee in good faith
shall elect not to make such payment, Escrowee shall forward a copy of the
objections, if any, to the Requesting Party, and continue to hold the
Disbursement unless otherwise directed by written instructions from the parties
to this Agreement or by a judgment of a court of competent jurisdiction. In any
event, Escrowee shall have the right to refrain from taking any further action
with respect to the Master Lease Escrow until it is reasonably satisfied that
such dispute is resolved or action by Escrowee is required by an order or
judgment of a court of competent jurisdiction. Escrowee, by signing this
Agreement at the end hereof where indicated, signifies its agreement to hold the
Master Lease Escrow Amount for the purposes as provided in this Agreement.
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C. In the event of any dispute, Escrowee shall have the right
to deposit the Master Lease Escrow Amount in court to await the resolution of
such dispute. Escrowee shall not incur any liability by reason of any action or
non-action taken by it in good faith or pursuant to the judgment or order of a
court of competent jurisdiction. Escrowee shall have the right to rely upon the
genuineness of all certificates, notices and instruments delivered to it
pursuant hereto, and all the signatures thereto or to any other writing received
by Escrowee purporting to be signed by any party hereto, and upon the truth of
the contents thereof.
D. On or before the tenth (10th)day of each calendar month
during the Master Lease Escrow Period, Escrowee shall provide Purchaser and DDRA
with a written report of the Master Lease Escrow, showing (i) Disbursements and
Rent Escrow Monthly Payments from the Master Lease Escrow made in the prior
calendar month, (ii) the balance remaining in the Master Lease Escrow as of the
date of the report, and (iii) interest accrued on the Master Lease Escrow Amount
during the prior calendar month.
E. Escrowee shall invest and reinvest the proceeds of the
Master Lease Escrow Amount and any interest earned thereon, in United States
Government Treasury Bills or Certificate(s) of Deposit or bank money market
account(s) as Purchaser shall direct and as is reasonably acceptable to DDRA.
The Master Lease Escrow Amount shall be held with the national bank of either
X.X. Xxxxxx Xxxxx Bank of America.
F. Escrowee shall be entitled to consult with counsel in
connection with its duties hereunder. Purchaser and DDRA, jointly and severally,
agree to reimburse Escrowee, upon demand, for the reasonable costs and expenses,
and in the event of a dispute, attorneys' fees incurred by Escrowee in
connection with its acting in its capacity as Escrowee. Escrowee shall not be
liable for its actions that may result in errors except for its own gross
negligence or willful misconduct. This Agreement shall terminate and be of no
further force or effect upon the full and final disbursement of the funds held
hereby.
3. In the event of a breach by Purchaser or DDRA of any of the
provisions of this Agreement, the non-breaching party shall have all remedies
available to it at all law or in equity based on such default other than
consequential or punitive damages.
4. All notices hereunder shall be sent by certified or registered
mail, return receipt requested, or may be sent by Federal Express or other
national overnight courier which obtains a signature upon delivery, or may be
delivered by hand delivery addressed to the notice parties identified below for
such party or at such other addresses as such party shall designate from time to
time by notice:
DDRA:
c/o DRA Advisors LLC
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
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with a copy to:
Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
with a copy to:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: [____________________]
with a copy to:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx 0' Xxxxxx, Esq.
PURCHASER:
__________________
__________________
__________________
Attention:_____________
with a copy to:
__________________
__________________
__________________
Attention:_____________
ESCROWEE:
Heritage Title Company
__________________
__________________
__________________
Attention:_____________
Notices shall be deemed served three (3) days after mailing, and
in the case of overnight courier on the date actually delivered to or rejected
by the rejected by the intended recipient, except
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for notice(s) which advise the other party of a change of address of the party
sending such notice, which notice shall not be deemed served until actually
received by the party to whom such notice is addressed or delivery is refused by
such party. Notices served by hand delivery shall be deemed served on the date
actually delivered to or rejected by the intended recipient if delivered or
rejected at or prior to 5:00 P.M. Eastern Time on a business day and on the next
business day if delivered or rejected after 5:00 P.M. Eastern Time on a business
day or at any time on a non-business day. Notices on behalf of the respective
parties may be given by their attorneys and such notices shall have the same
effect as if in fact subscribed by the party on whose behalf it is given.
5. This Agreement may not be assigned by either party without the
written consent of the other party. Any purported assignment of this Agreement
in violation of this paragraph shall be null and void.
6. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. None of the provisions of this
Agreement are intended to be, nor shall they construed to be, for the benefit of
any third party.
7. This Agreement, the Exhibit annexed hereto and the Contract shall
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof, and all understandings and agreements heretofore or
simultaneously had between the parties hereto are merged in and are contained in
this Agreement, the Exhibit annexed hereto and the Contract.
8. The provisions of this Agreement may not be waived, changed,
modified or discharged orally, but only by an agreement in writing signed by the
party against which any waiver, change, modification or discharge is sought.
9. If a party is required to perform an act or give a notice on a
date that is a Saturday, Sunday or national holiday, the date such performance
or notice is due shall be deemed to be the next business day.
10. This Agreement is to be governed and construed in accordance with
the laws of the State of New York. Purchaser, DDRA and Escrowee hereby submit to
the jurisdiction of the State and United States District courts located within
New York in respect of any suit or other proceeding brought in connection with
or arising out of this Agreement. Any legal suit, action or proceeding arising
out of or relating to this Agreement may be instituted in any federal or state
court in the City of New York, County of New York pursuant to Section 5-1402 of
the New York General Obligations Law and Purchaser, DDRA and Escrowee waive any
objection which they may now or hereafter have based on venue and/or forum non
conveniens of any such suit action or proceeding, and Purchaser, DDRA and
Escrowee hereby irrevocably submit to the jurisdiction of any such court in any
suit, action or proceeding.
11. This Agreement may be executed in two or more counterparts and
each of such counterparts, for all purposes, shall be deemed to be an original
but all of such counterparts
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together shall constitute but one and the same instrument, binding upon all
parties hereto, notwithstanding that all of such parties may not have executed
the same counterpart.
12. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination will
not effect the remaining provisions of this Agreement, all of which will remain
in full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement the day and year first above written.
DDRA:
DDRA COMMUNITY CENTERS FOUR, L.P., a Texas limited
partnership
BY: DRDI SAN ANTONIO LLC, a Delaware limited liability
company, its general partner
By: DD SAN XXXXX CORP., a Texas corporation, its
member
By:
------------------------------
Name:
Title:
PURCHASER:
By:
--------------------------
Name:
Title:
ESCROWEE:
HERITAGE TITLE COMPANY, as agent for CHICAGO
TITLE INSURANCE COMPANY
By:
---------------------
Name:
Title:
EXHIBIT A
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