Exhibit 10.14
SALE-PURCHASE AGREEMENT
THIS SALE-PURCHASE AGREEMENT (this "AGREEMENT"), is made as of this 5th
day of SEPTEMBER, 2003, between CDG (Park Place) LLC, a Texas limited liability
company having an office at Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx
Xxxxx, Xxxxxxx 00000 ("SELLER"), and Inland Real Estate Acquisitions, Inc., a
corporation organized under the laws of the State of Illinois, having an office
at 0000 Xxxxxxxxxxx Xxxx, Xx Xxxxx, Xxxxxxxx, 00000 ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller is the owner of the Shopping Center (as hereinafter
defined) known as the Shops at Park Place, 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx,
Xxxxx; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the
Shopping Center, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the mutual
receipt and legal sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
1. SALE-PURCHASE.
Seller agrees to sell and convey to Purchaser, and Purchaser
agrees to purchase from Seller, upon the terms and conditions hereinafter set
forth, the following (the "SHOPPING CENTER"):
(i) all that certain plot, piece and parcel of land, consisting
of approximately 13.24 acres, including an approximately 3 acre vacant parcel,
located in the County of Collin in the State of Texas, described in EXHIBIT "A"
annexed hereto and made a part hereof, together with all easements, rights of
way, privileges, appurtenances and other rights, if any, pertaining thereto
(collectively, the "LANDS");
(ii) all buildings and improvements located on the Lands and all
of Seller's right, title and interest in and to any and all fixtures attached
thereto (collectively, the "IMPROVEMENTS") comprising approximately 000,000
xxxxxx xxxx xx xxxxx xxxx;
(iii) all equipment, machinery, apparatus and other articles of
personal property, to the extent same is owned by Seller, located on the Lands
and used in connection with the operation of the Improvements (collectively, the
"PERSONAL PROPERTY");
(iv) to the extent assignable, and subject to the terms thereof,
the Service Contracts (as hereinafter defined), except those Service Contracts
which Purchaser shall elect not to assume, such election to be made by written
notice delivered by Purchaser to Seller not later than the last day of the Due
Diligence Period (as hereinafter defined), it being understood and agreed,
anything in the foregoing to the contrary notwithstanding, that Purchaser shall
be obligated at the Closing (as hereinafter defined) to accept an assignment of,
and to assume, those Service Contracts, if any, more particularly described in
PART 2 of Exhibit "E" annexed hereto and made a part hereof;
(vii) to the extent assignable, and subject to the terms thereof,
all licenses, franchises, permits, certificates of occupancy, authorizations and
approvals used in or relating to the ownership, occupancy or operation of any
part of the Improvements (the "PERMITS");
(viii) the Leases (as hereinafter defined); and
(ix) to the extent assignable and subject to the terms thereof,
all of the interest of Seller in any and all contracts, rights, warranties,
guaranties and trade names (including the name "The Shops at Park Place")
(collectively the "INTANGIBLE PROPERTY").
2. PURCHASE PRICE.
The purchase price for the Shopping Center (the "PURCHASE PRICE")
is Twenty Three Million Eight Hundred Sixty Eight Thousand Two Hundred Fifty and
No/100 Dollars (U.S.$23,868,250.00).
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The Purchase Price shall be payable as follows:
2.1. Three Hundred Thousand and No/100 Dollars (U.S.$300,000.00)
(the "INITIAL DEPOSIT"), by wire transfer of immediately available federal funds
to the order of Chicago Title Insurance Company, Chicago, Illinois office) (in
such capacity, the "ESCROW AGENT") not later than two (2) business days
following the execution and delivery of this Agreement by Purchaser, which
Initial Deposit shall be held by Escrow Agent in escrow pursuant to the
provisions of SECTION 15 hereof. The Initial Deposit shall automatically become
nonrefundable upon the expiration of the Due Diligence Period, unless Purchaser
terminates (or is deemed to have terminated) this Agreement in accordance with
the provisions of SECTIONS 5, 8, 11, 14, 20, or 36.
2.2. Two Hundred Thousand and No/100 Dollars (U.S.$200,000.00)
(the "ADDITIONAL DEPOSIT"; together with the Initial Deposit, the "DEPOSIT"), by
wire transfer of immediately available federal funds to the order of the Escrow
Agent on the first Business Day following the expiration of the Due Diligence
Period, which Additional Deposit, together with the Initial Deposit, shall be
held by Escrow Agent in escrow pursuant to the provisions of SECTION 15 hereof.
The Deposit together with accrued interest thereon, is hereinafter referred to
collectively as the "DOWNPAYMENT." Time shall be of the essence with respect to
the obligation of Purchaser to deliver the Additional Deposit to the Escrow
Agent and the failure of Purchaser to so deliver the Additional Deposit to the
Escrow Agent by the aforesaid date shall be deemed a default by Purchaser under
this Agreement which shall entitle Seller to exercise its remedies under SECTION
10 hereof. The parties agree that the Downpayment is nonrefundable, other than
as specifically set forth herein.
2.3. [intentionally deleted].
2.4. The balance of the Purchase Price, as adjusted for
prorations, adjustments and apportionments as herein provided, by wire transfer
on the Closing Date of immediately available federal funds to the Escrow Agent,
for further transfer, upon Closing, to an account or accounts designated by
Seller (such funds, the "CLOSING FUNDS"). At Purchaser's option, Purchaser may
wire the full amount of the Purchase Price to the Escrow Agent on the Closing
Date, and upon disbursement of the full amount of the Purchase Price to Seller
upon Closing, the entire Down payment shall be refunded to Purchaser.
3. PERMITTED EXCEPTIONS.
3.1. The Shopping Center shall be sold, and title thereto
conveyed, subject to: (i) [intentionally deleted]; (ii) the leases and occupancy
agreements described on EXHIBIT "D" attached hereto and made a part hereof (as
amended, modified, renewed or extended as of the date hereof, the "EXISTING
LEASES"), all amendments, modifications, renewals and extensions of the Existing
Leases approved in writing (or deemed approved) by Purchaser in accordance with
the provisions of SECTION 18 of this Agreement (collectively, the "APPROVED
LEASE AMENDMENTS"), and all other leases and occupancy agreements approved in
writing (or deemed approved) by Purchaser in accordance with the provisions of
SECTION 18 of this Agreement (collectively, the "APPROVED NEW LEASES"; together
with the Existing Leases and the Approved Lease Amendments, the "LEASES"), (iii)
all Violations (as hereinafter defined), (iv) to the extent assignable, Seller's
right, title and interest in and to the service contracts described on EXHIBIT
"E" attached hereto and made a part hereof (as amended, modified, renewed or
extended as of the date hereof, the "EXISTING SERVICE CONTRACTS"), all
amendments, modifications, renewals and extensions of the Existing Service
Contracts approved in writing (or deemed approved) by Purchaser in accordance
with the provisions of SECTION 18 of this Agreement (collectively, the "APPROVED
SERVICE CONTRACT AMENDMENTS"), and all other service contracts approved in
writing (or deemed approved) by Purchaser in accordance with the provisions of
SECTION 18 of this Agreement (collectively, the "APPROVED NEW SERVICE
CONTRACTS"; together with the Existing Service Contracts and the Approved
Service Contract Amendments, the "SERVICE CONTRACTS"), it being acknowledged
that if any Service Contract is not assignable by its terms and a consent to the
assignment thereof is not obtained by the Closing Date, then the transaction
shall nevertheless proceed to Closing and Seller shall terminate such Service
Contract at Closing at Seller's expense, it being agreed that the failure to
obtain any such consent to assignment shall not constitute a default by any
party hereunder, constitute a failure of condition precedent in favor of any
party or grant any party hereunder any right or remedy, and (v) the Permitted
Title Exceptions and the Permitted Survey Conditions (as such terms are
hereinafter defined) (the Leases, the Violations, the Service Contracts, the
Permitted Title Exceptions and the Permitted Survey Conditions being hereinafter
collectively referred to as the "PERMITTED EXCEPTIONS").
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3.2. Seller shall give and Purchaser shall accept such fee
simple title to the Shopping Center as the Title Company (as hereinafter
defined) shall approve and insure as provided in SECTION 8 hereof, without
material exceptions other than the Permitted Exceptions and standard preprinted
exceptions.
4. CLOSING DATE.
The consummation of the transactions contemplated hereby (the
"CLOSING"), shall take place at the offices of the Escrow Agent, at 000 Xxxxx
Xxxxx Xxxxxx, Division II Escrow, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx
Xxxxxx, on the 17th day of September, 2003 (the "INITIAL SCHEDULED CLOSING
DATE"). Notwithstanding the foregoing, Seller shall have the right, by
delivering notice to Purchaser not later than three (3) Business Days before the
Initial Scheduled Closing Date, as applicable, to adjourn such closing date to a
date (the "SELLER ADJOURNED CLOSING DATE") not later than thirty (30) days after
the Initial Scheduled Closing Date, such right being in addition to any other
right provided for in this Agreement for Seller to extend or adjourn the Closing
Date (as hereinafter defined). As used herein, the term "CLOSING DATE" shall
mean the Initial Scheduled Closing Date, the Seller Adjourned Closing Date or
any other Closing Date adjourned by Seller pursuant to the provisions hereof, as
applicable. It is expressly agreed by Seller and Purchaser that time is of the
essence with respect to Purchaser's obligation to close this transaction on the
Closing Date. For the avoidance of doubt, Purchaser acknowledges that if Seller
adjourns the Closing Date pursuant to any right of adjournment granted
hereunder, then time shall be of the essence with respect to Purchaser's
obligation to close this transaction on such adjourned Closing Date. The Closing
shall be conducted through a New York style escrow (i.e., the concurrent [aa]
execution and delivery of the Closing Documents by the parties, [bb] payment by
Purchaser of the Purchase Price, plus or minus adjustments and/or prorations as
provided herein, and [cc] delivery to the Purchaser of an owners title insurance
policy with respect to the Lands [or a xxxx-up of the Title Commitment] in the
amount of the Purchase Price and subject to no exceptions other than the
Permitted Title Exceptions and the Permitted Survey Conditions), such escrow to
be established conducted by the Escrow Agent in accordance with its usual form
of deed and money escrow agreement then in use by the Escrow Agent, with such
special provisions inserted therein as may be required to conform with this
Agreement. The cost of the escrow shall be divided equally between the parties.
The escrow shall supplement and not supersede this Agreement. Each party shall
execute and deliver to the Escrow Agent at Closing such additional documents as
are required to be provided by each party in order to satisfy its respective
responsibilities as to the "Requirements" set forth in the Title Commitment.
This Agreement shall not be merged into the escrow instructions but as between
the parties hereto, the provisions of this Agreement, shall govern and control.
Seller agrees to reasonably cooperate with Purchaser's lender, if any, and with
the lender's money lender escrow, provided that such cooperation does not (x)
impose any cost or liability upon Seller, (y) purport to involve any change in
any of the terms or provisions of this Agreement, or (z) purport to require any
postponement of the Closing or any other time period set forth herein.
Anything herein to the contrary notwithstanding,
Closing shall occur seven (7) days after Purchaser's
5. VIOLATIONS. receipt of the last of the Tenant and Seller
Estoppel Certificates required by this Agreement,
but not earlier than September 30, 2003 and not
later than December 31, 2003.
Purchaser shall accept title to the Shopping Center subject to any
and all violations of law or municipal ordinances, orders or requirements issued
by the departments of buildings, fire, labor, health or other Federal, State,
County, Municipal or other departments and governmental agencies having
jurisdiction against or affecting the Shopping Center, and any outstanding work
orders, whether outstanding as of the date hereof or noticed at any time during
the Due Diligence Period (each, an "EXISTING VIOLATION"). Any such violation
that is noticed (i.e., issued by the applicable governmental authority) after
the expiration of the Due Diligence Period is referred to herein as a "NEW
VIOLATION". The Existing Violations and the New Violations are referred to
herein, collectively, as the "VIOLATIONS". Purchaser and Seller agree that the
following shall apply in respect of any Violations:
(a) In respect of Existing Violations, Seller shall have no
restoration, repair or other obligation or liability of any kind or nature with
respect thereto and Purchaser shall be required to take title to the Shopping
Center without adjustment of the Purchase Price.
(b) In respect of New Violations:
(i) Purchaser shall deliver notice thereof to Seller
("PURCHASER'S VIOLATIONS NOTICE") by the earlier of one (1) day prior to the
Closing Date or five (5) days after it becomes aware of the existence of any New
Violation and Purchaser's failure to deliver Purchaser's Violations Notice
within such time period shall be deemed to be Purchaser's waiver of any rights
under this SECTION 5(b) and agreement to take title to the Shopping Center
without adjustment of the Purchase Price.
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(ii) Within five (5) Business Days after Seller receives
Purchaser's Violations Notice (and if the expiration of such five (5) Business
Day period is after the Closing Date, then at the option of Seller the Closing
shall be adjourned to the date three (3) Business Days after the expiration of
such five (5) Business Day period). Seller shall deliver notice to Purchaser
("SELLER'S VIOLATIONS RESPONSE NOTICE") stating either (x) that Seller agrees to
either cure such Violation prior to the Closing or to grant Purchaser a credit
at Closing against the Purchase Price, such credit to be in an amount equal to
the reasonably estimated cost of curing same or (y) that Seller does not elect
to cure such Violation or grant Purchaser such credit against the Purchase
Price. Seller's failure to deliver Seller's Violations Response Notice within
such five (5) Business Day period shall be deemed to be Seller's election under
CLAUSE (y) on the last day of such five (5) Business Day period. In the event
that the reasonably estimated aggregate cost of curing all such Violations is
less than $5,000, then Seller shall be required to make its election under
CLAUSE (x)
(iii) In the event that Seller in Seller's Violations
Response Notice makes (or is deemed to have made) the election under CLAUSE (x)
of SECTION 5(b)(ii) above, then Seller shall either cause the applicable
Violation to be cured prior to the Closing (and shall be entitled to adjourn the
Closing for up to sixty [60] days to effectuate such cure) or grant Purchaser a
credit at Closing against the Purchase Price, such credit to be in an amount
equal to the reasonably estimated cost of curing same, as set forth in an cost
estimate obtained by Seller from an unrelated licensed contractor. In the event
that Seller in Seller's Violations Response Notice makes (or is deemed to have
made) the election under CLAUSE (y) of SECTION 5(b)(ii) above, then by the
earlier of one (1) day prior to the Closing Date (as it may have been adjourned
by Seller pursuant to SECTION 5(b)(ii) or five (5) days after Purchaser receives
Seller's Violations Response Notice making such election, Purchaser shall
deliver notice to Seller ("PURCHASER'S VIOLATIONS RESPONSE NOTICE") stating
either (x) that Purchaser elects to accept title to the Shopping Center subject
to the applicable Violation without adjustment of the Purchase Price, in which
event the Closing hereunder shall occur without any further obligation of Seller
under this SECTION 5 or (y) that Purchaser elects to terminate this Agreement,
in which event Seller and Purchaser shall direct the Escrow Agent to return the
Downpayment to Purchaser, this Agreement shall terminate and neither party shall
have any further obligation under this Agreement, except that the obligations of
the parties under SECTIONS 13, 31, 32, 34, 35.2 and 35.3 shall survive.
Purchaser's failure to deliver Purchaser's Violation Response Notice to Seller
within the time period referred to in the preceding sentence shall be deemed to
be Purchaser's election under CLAUSE y of the preceding sentence.
(iv) Without limiting the generality of the foregoing
provisions of this Section 5, in the event that Purchaser takes title to the
Shopping Center without raising any objection to any Violation in accordance
with the provisions of this SECTION 5, same shall constitute a complete waiver
of any right Purchaser may have to object to such Violation or to make any claim
against Seller on account thereof and any such claim is hereby waived by
Purchaser.
(c) Purchaser shall not, without first obtaining the prior
written consent of Seller, request that any governmental authority inspect or
otherwise evaluate the condition of the Shopping Center in respect of the
existence of Violations, provided that the foregoing shall not prohibit
Purchaser from making customary inquiries of governmental authorities as to
whether Violations have been noticed by any such governmental authorities.
(d) Purchaser (i) acknowledges that it is aware of the
existence of the matters (if any) listed on EXHIBIT "F", (ii) agrees that same
constitute Existing Violations for purposes of this SECTION 5, and (iii)
acknowledges that Seller has not made any representation regarding such
Violations nor made any representation that such matters constitute all Existing
Violations.
6. APPORTIONMENTS.
6.1. The following are to be apportioned as of the Closing Date:
(i) Real property taxes and assessments (including,
without limitation, any assessments relating to Permitted Exceptions,
improvement district assessments or similar charges), personal property taxes,
water and other utility charges and sewer taxes not otherwise payable directly
to the taxing authority by any tenant under a Lease. Seller and Purchaser each
agree to deliver to the other, as appropriate, the required portion of any funds
received by Seller or Purchaser, as the case may be, in order to effectuate the
foregoing. Anything in the foregoing or elsewhere in this Agreement to the
contrary notwithstanding, it is understood and agreed that if the Closing shall
take place prior to the date upon which Seller shall have paid the real property
taxes and/or assessment for the calendar year in which the Initial Scheduled
Closing Date (or, if applicable, the Seller Adjourned Closing Date) falls, then,
in lieu of any other sums which, pursuant to any provision of this Agreement,
might otherwise be payable (or credited) by Seller to Purchaser on account or in
respect of the real property taxes and assessments allocable to the portion of
calendar year
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2003 ending at 11:59PM on the calendar day immediately preceding the Closing
Date, Seller shall (aa) pay (or credit) to Purchaser the amount of any and all
estimated tax payments theretofore received by Seller from tenants of the
Shopping Center, and (bb) pay (or credit) to Purchaser an amount equal to the
product computed by multiplying (x) $54.79 per day (i.e., $20,000 DIVIDED BY 365
days), by (y) the number of calendar days which shall have elapsed between
January 1, 2003 and the Closing Date, and (cc) assign to Purchaser any and all
rights which Seller may have to recover other payments on account of such taxes
and assessments from tenants of the Shopping Center. Seller and Purchaser
acknowledge that a fee in the approximate amount of $23,000.00 is payable to the
tax consultant (the "consultant") who secured a reduction in the Shopping
Center's 2003 assessed valuation for real property taxes. Fifty percent (50%) of
the consultant's fee (i.e., approximately $11,500.00) shall be paid by Seller
prior to Closing, and Seller shall provide Purchaser with proof of such payment
at or prior to Closing. Purchaser agrees that to the extent that Purchaser shall
receive payment for same from the tenants of the Shopping Center, Purchaser
shall reimburse Seller for the portion of the consultant's fee paid by Seller,
such reimbursement to be made by Purchaser to Seller on the earlier of March 15,
2004 or the date upon which Seller reconciles 2003 real property tax payments
with the tenants of the Shopping Center. Purchaser agrees to make commercially
reasonable efforts to collect said sum from those tenants of the Shopping Center
who are obligated by their respective leases to contribute to such tax
consultant's fee.
(ii) Fixed, additional and percentage rent, pylon and/or
sign rents or charges, escrows, impounds and/or prepaid expenses and all other
charges under the Leases, if, as and when collected in accordance with
SECTION 6.6 hereof (all of the foregoing being collectively referred to as
"RENTS").
(iii) Charges under the Service Contracts.
(iv) License, permit and inspection fees.
(v) Deposits, if any, on account with utility companies
servicing the Shopping Center (and Seller and Purchaser each agrees to cooperate
to effectuate the transfer of any such deposits), provided that, at Seller's
option, Seller will obtain a refund of any such utility deposits in effect and
Purchaser shall provide its own utility deposits directly to the applicable
utility companies.
(vi) All other items customarily apportioned in
connection with the sale of similar properties similarly located.
6.2. Real estate taxes and assessments shall be prorated on and
as of the Closing Date based on the most current tax bills available, taking
into account the maximum available discounts and any and all other exemptions
available; PROVIDED, HOWEVER, in the event Seller is protesting or challenging
any real property taxes or assessments, the benefits of any such challenge or
protest shall be shared pro rata, in cash, after expenses, between the parties
for 2003 taxes provided a claim is made pursuant to this SECTION 6.2 by the
Seller or Purchaser within one (1) year from the Closing Date.
6.3. (i) If the Shopping Center or any part thereof shall be
or shall have been affected by any bond district, facilities district or special
assessment prior to the Closing Date, such portion of such bond district,
facilities district or special assessment due and relating to the period of time
prior to the Closing Date shall be paid by Seller and such portion of such bond
district, facilities district or special assessment due or relating to the
period of time from and after the Closing Date shall be paid by Purchaser. If
any bond district, facilities district or special assessment on the Shopping
Center is payable in installments, then the installment for the current period
shall be prorated (with Purchaser assuming the obligation to pay any
installments due from and after the Closing Date) (it being agreed that if there
is a dispute as to the amount or the obligations of the parties under this
CLAUSE (i) then at Seller's option the Closing shall nevertheless take place,
however there shall be withheld from Seller's portion of the Closing Funds an
amount equal to the amount in dispute as reasonably determined by Purchaser,
which amount shall be held by Escrow Agent in escrow pursuant to instructions of
the parties.
(ii) If the Shopping Center or any part thereof shall be
or shall have been affected by any bond district, facilities district or special
assessment on or subsequent to the Closing Date, whether or not payable in
annual installments, the entire amount of such assessment shall be paid by
Purchaser.
6.4. If there are any water meters on the Shopping Center (other
than meters measuring water consumption costs which are the obligation of
tenants to pay under Leases), Seller shall furnish readings, and the
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unfixed water and sewer charges, if any, based thereon for the intervening time,
shall be apportioned on the basis of such last readings.
6.5. The amount of any unpaid real property taxes, assessments,
personal property taxes, water charges and sewer charges which Seller is
obligated to pay and discharge, with interest and penalties thereon to the
Closing Date may, at the option of Seller, be allowed to Purchaser out of the
balance of the Purchase Price, provided that official bills therefor with
interest and penalties thereon are furnished by Seller at the Closing. If there
are any other liens or encumbrances which Seller is paying and discharging
pursuant to SECTION 8 hereof, Seller may use any portion of the Purchase Price
to satisfy the same, provided that the Title Company shall be willing to insure
Purchaser against collection of such liens and/or encumbrances, including
interest and penalties, in which event such liens and encumbrances shall not be
objections to title.
6.6. (i) To the extent that Purchaser receives Rents under
Leases (including monthly payments of percentage rents and "pass throughs")
after the Closing Date, Purchaser shall, within ten (10) Business Days
thereafter, render an accounting to Seller with respect thereto, and,
(x) if such Rents shall have been received on or
prior to the last calendar day of the month in which the Closing occurred, the
amount of such Rents (after deducting reasonable out-of-pocket cost of
collection, if any) shall be applied in the following order of priority: (a)
first, to the calendar month in which the Closing occurs, (b) second to any
calendar month or months following the calendar month in which the Closing
occurred until such tenant is current on post-Closing Rents, and (c) third, to
the calendar months preceding the Closing until such tenant is current on
pre-Closing Rents, or
(y) if such Rents shall have been received
following the last calendar day of the month in which the Closing occurred, the
amount of such Rents (after deducting reasonable out-of-pocket cost of
collection, if any) shall be applied in the following order of priority: (a)
first to any calendar month or months following the calendar month in which the
Closing occurred until such tenant is current on post-Closing Rents, (b) second,
to the calendar month in which the Closing occurs, and (c) third, to the
calendar months preceding the Closing until such tenant is current on
pre-Closing Rents.
Seller has advised Purchaser that certain sums are
due and owing to Seller from certain tenants of the Shopping Center in respect
of the calendar year 2002 reconciliation(s) of Shopping Center operating
expenses (the "Reconciliation Amounts"). Anything in this Agreement to the
contrary notwithstanding, it is understood and agreed that Seller shall be
entitled receive and retain any and all sums paid and/or payable by such tenants
on account of the Reconciliation Amounts, and if any such sums shall be received
by Purchaser following the Closing, Purchaser shall, within ten (10) days
following receipt thereof, render an accounting to Seller with respect thereto
and simultaneously pay the full amount thereof over to Seller.
(ii) Within sixty (60) days following the end of the
fiscal year in which the Closing occurs, with respect to which percentage rents
or other similar payments are payable under each Lease or other occupancy
arrangement, Purchaser shall calculate the portion of such rents or payments to
which Seller shall be entitled, which portion shall equal a fraction, the
numerator of which is the number of days in such fiscal year with respect to
such Lease that elapsed prior to the Closing Date and the denominator of which
is the total number of days in such fiscal year. Purchaser shall be entitled to
the remaining portion of such rents or payments. If Seller has received
percentage rents or other similar payments with respect to any Lease or other
occupancy arrangement for such fiscal year in excess of the amount to which it
is entitled pursuant to this Agreement, Seller shall pay such excess to
Purchaser within ten (10) Business Days after such calculation. If Purchaser has
received percentage rents or other similar payments with respect to any Lease or
other occupancy arrangement for such fiscal year in excess of the amount to
which it is entitled pursuant to this Agreement, such excess shall be paid by
Purchaser to Seller within ten (10) Business Days after the later of (a)
Purchaser's receipt of such excess percentage rents or other similar payments
and (b) the date of such calculation.
(iii) Purchaser shall make good faith reasonably diligent
efforts to collect any and all Rents due pursuant to the Leases. Notwithstanding
the foregoing, if Purchaser shall commence any legal action to collect any
amounts due from a tenant under a Lease and such tenant shall also owe amounts
which Seller shall be entitled to retain pursuant to the provisions of this
Agreement, then Purchaser shall include in its legal action the claim for
amounts due to Seller, and Seller shall reimburse Purchaser for a portion of the
reasonable and actual out-of-pocket legal fees and disbursements incurred by
Purchaser in prosecuting such action, such reimbursement to be in an amount
equal to
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the total amount of such fees and disbursements multiplied by a fraction, the
numerator of which is the total amount realized by Seller in such action and the
denominator of which is the combined total amount realized by Seller and
Purchaser in such action. If Seller is entitled, in accordance with the
provisions of this Agreement, to all or any portion of any Rents owed by any
tenant under a Lease and such tenant shall be in default of its obligation to
pay such Rents, Seller reserves the right to commence any and all appropriate
legal proceedings to collect such amounts (but Seller shall not commence any
action against a tenant to dispossess such tenant from possession of space in
the Shopping Center, and Purchaser agrees to cooperate with Seller in connection
with such proceedings, PROVIDED that, if under applicable law it is necessary to
use Purchaser's name in order to commence or maintain any such proceedings,
Purchaser shall, at Seller's request and sole cost and expense, commence and
maintain such proceedings at the direction of Seller and shall otherwise
cooperate with Seller in connection therewith, PROVIDED, FURTHER, that Seller
shall agree to indemnify Purchaser for any loss, cost, damage or reasonable
expense incurred by Purchaser in connection with such proceedings.
6.7. Prior to the Closing, Purchaser and Seller shall cooperate
to arrange for utility services to the Shopping Center to be discontinued in
Seller's name, as of the day immediately prior to the Closing Date, and to be
reinstated in Purchaser's name, as of the Closing Date. In the event that the
foregoing cannot be effectuated, then Seller shall furnish readings of the
applicable utility meters to a date not more than thirty (30) days prior to the
Closing Date, and the unfixed charges, if any, based thereon for the intervening
time, shall be apportioned on the basis of such last readings.
6.8. Purchaser agrees that it shall be responsible for the
payment of the commissions due to brokers, whether payable prior to or
subsequent to the Closing Date ("LEASING COMMISSIONS"), the costs to be incurred
for tenant improvements ("TENANT IMPROVEMENT COSTS"), and all other
out-of-pocket costs and expenses (including, without limitation, reasonable
legal fees, costs and disbursements and tenant relocation costs) arising out of,
under or in connection with, any Approved Lease Amendments or Approved New
Leases or any extension or renewal of an Existing Lease (collectively, "OTHER
LEASING COSTS"; together with any Leasing Commissions and Tenant Improvement
Costs, "LEASING COSTS"), and Purchaser hereby assumes, effective as of the
Closing Date, the obligation to pay all Leasing Costs with respect to Approved
New Leases and Approved Lease Amendments. In the event that (i) Seller becomes
obligated to pay any Leasing Costs with respect to an Approved Lease Amendment
or an Approved New Lease and (ii) Seller pays any such Leasing Costs prior to
the date of the Closing, then at Closing Purchaser shall reimburse Seller for
such Leasing Costs. In addition, Purchaser hereby assumes, effective as of the
Closing Date, the obligation to pay those commissions referred to on the list of
Lease Commissions Payable on EXHIBIT "D" attached hereto (the "SPECIAL
COMMISSIONS"). Purchaser hereby indemnifies Seller and holds Seller harmless
from and against any and all claims and liabilities (including, without
limitation, reasonable attorneys' fees, costs and disbursements and costs
incurred in the enforcement of the foregoing indemnity) arising out of
Purchaser's failure to comply with its obligations under this SECTION 6.8.
Without limiting any of the foregoing provisions, Purchaser hereby specifically
assumes the obligation to pay any and all leasing commissions that may be due to
third party brokers in connection with a future renewal of any Existing Lease,
and Purchaser hereby specifically indemnifies Seller against any liability
arising therefrom.
6.9. Seller shall transfer to Purchaser concurrently with the
Closing all security deposits of tenants under the Leases, together with any
interest accrued on such security deposits (the "SECURITY DEPOSITS") or grant
Purchaser a credit against the Purchase Price at Closing for the full amount of
the Security Deposits. To effectuate such intent, at or subsequent to the
Closing, Seller and Purchaser shall cooperate to notify any third party
institutions holding tenant security deposits of the transfer of title thereto
from Seller to Purchaser. In the event any security deposits are evidenced by
letters of credit, Seller and Purchaser shall cooperate (on a post-closing
basis, but with all transfer/assignment documentation completed on or before
Closing and, to the extent not payable by the corresponding tenant, with Seller
paying any and all transfer/assignment fees and costs) to transfer such letter
of credit to Purchaser.
6.10. With the exception of SECTIONS 6.2 AND 6.6(ii), the
provisions of this SECTION 6 shall survive for ninety (90) days and either party
shall have the right prior to expiration of ninety (90) day period to require
that errors related to computations and calculations under this SECTION 6 be
corrected and the parties agree that any errors not raised prior to the
expiration of such ninety (90) day period shall be deemed to be waived,
PROVIDED, HOWEVER, notwithstanding the foregoing, computations that cannot
reasonably be determined on or before the expiration of such ninety (90) day
period shall not be waived until the date that is the earlier to occur of (i)
nine (9) months after the Closing Date or (ii) sixty (60) days after the date
that such computations can reasonably be determined. For the avoidance of doubt,
the parties acknowledge that after the expiration of such ninety (90) day
period, the indemnification obligations of Seller, if any, contained in this
SECTION 6, shall expire, provided that the indemnification obligations of
Purchaser, if any, contained in this SECTION 6 shall survive indefinitely.
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7. CLOSING DOCUMENTS.
7.1. At the Closing, Seller shall deliver to Purchaser and
execute, where applicable, the following:
(i) a Special Warranty Deed with respect to the Shopping
Center in the form attached hereto as EXHIBIT "G" and made a part hereof (the
"DEED"), which Deed shall be in recordable form, duly executed and acknowledged;
(ii) a xxxx of sale with respect to the Personal
Property, in the form attached hereto as EXHIBIT "H" and made a part hereof (the
"XXXX OF SALE");
(iii) an assignment and assumption of the Leases,
substantially in the form attached hereto as EXHIBIT "I" and made a part hereof
(the "ASSIGNMENT AND ASSUMPTION OF LEASES");
(iv) an assignment and assumption of the Service
Contracts, substantially in the form attached hereto as EXHIBIT "J" and made a
part hereof (the "ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS");
(v) to the extent same are in the possession or
reasonable control of Seller, Seller's executed counterparts of all Leases and
any guarantees relating thereto;
(vi) a signed notice to the tenants of the Shopping
Center, in the form attached hereto as EXHIBIT "K" and made a part hereof (the
"NOTICE TO TENANTS"), advising them of the within sale and directing them to pay
rent and address all communications to Purchaser or, at Purchaser's option, to
Purchaser's managing agent;
(vii) to the extent the same are in the possession or
reasonable control of Seller and are transferable to Purchaser, all original
licenses, certificates and permits pertaining to the Shopping Center and
required for the use or occupancy thereof and an assignment and assumption
thereof, but only if and to the extent that the same are not assigned and
assumed pursuant to any of the other Closing Documents;
(viii) to the extent the same are in the possession or
reasonable control of Seller, any and all keys to entrance doors to, and
equipment and utility rooms located in, the Shopping Center;
(ix) a "non-foreign person affidavit" that meets the
requirements of Section 1445(b)(2) of the Internal Revenue Code of 1986, as
amended;
(x) such documents (such as corporate resolutions or
partnership authorizations and certified corporate or partnership organizational
documents) as are reasonably required by the Title Company to evidence the
authorization of the within sale of the Shopping Center by Seller and the
delivery by Seller of all of the Closing documents required by this Agreement;
(xi) the Tenant Estoppel Certificates (as hereinafter
defined) and/or Seller Estoppel Certificates (as hereinafter defined) to the
extent required to be delivered pursuant to SECTION 36;
(xii) an assignment and assumption of Intangible Property
with respect to the Shopping Center, in the form attached hereto as EXHIBIT "L"
and made a part hereof (the "ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY");
(xiii) an up-to-date rent roll as required by SECTION
11.1(iii) hereto;
(xiv) a duly executed termination of Seller's existing
property management agreement, if any;
(xv) such other documents as may reasonably be requested
by the Title Company to evidence Seller's authorization of the sale of the
Shopping Center; and
(xvi) such other documents, instruments and/or deliveries
as are required to be delivered by Seller pursuant to the terms of this
Agreement.
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7.2. At the Closing, Purchaser shall deliver to Seller and
execute, where applicable, the following:
(i) the Closing Funds (in addition to Escrow Agent's
delivery of the Downpayment);
(ii) the Assignment and Assumption of Leases;
(iii) the Assignment and Assumption of Service Contracts;
(iv) the Assignment and Assumption of Intangible
Property;
(v) such documents (such as limited liability company
resolutions, corporate resolutions or partnership authorizations and certified
limited liability company, corporate or partnership organizational documents) as
are reasonably required by Seller evidencing the authorization of the purchase
of the Shopping Center by Purchaser and the delivery by Purchaser of all of the
Closing documents required by this Agreement;
(vi) such other documents as may reasonably be requested
by the Title Company to evidence Purchaser's authorization of the acquisition of
the Shopping Center by Purchaser; and
(vii) such other documents, instruments and/or deliveries
as are required to be delivered by Purchaser pursuant to the terms of this
Agreement.
7.3. [intentionally deleted].
7.4. The acceptance of transfer of title to the Shopping Center
by Purchaser shall be deemed to be full performance and discharge of any and all
obligations on the part of Seller to be performed pursuant to the provisions of
this Agreement, except where such agreements and obligations are specifically
stated to survive the transfer of title.
8. TITLE INSURANCE.
8.1. Purchaser acknowledges that Seller has delivered to
Purchaser a copy of Seller's existing survey for the Shopping Center and a
commitment for title insurance dated not earlier than thirty (30) days prior to
the date of execution and delivery of this Agreement (the "TITLE COMMITMENT")
from Chicago Title Insurance Company (the "TITLE COMPANY"). Additionally, not
later than five (5) days prior to the end of the Due Diligence Period, Seller
shall deliver to Purchaser, at Seller's sole cost and expense, six (6) copies of
an ALTA/ACSM Land Title Survey plat of survey of the Lands (the "SURVEY"),
certified to Seller, Purchaser, the Title Company and Purchaser's lender, if
any, with a certification date subsequent to the date of this Agreement, as
being made in compliance with the then current ALTA/ASCM Minimum Standard Detail
Requirements for Land Title Surveys, including the following Table A Optional
Survey Responsibilities and Specifications: 1; 2; 3; 4; 6; 7(a), (b) and (c);
and 8 through 11 inclusive (with item 7[b][2] showing the tract area in both
square footage and acres), and in form sufficient for the Title Company to Issue
its owners title policy without survey exception (except for non-material
encroachments, and the like which do not affect any buildings on the Lands.
8.2. If the Title Commitment discloses exceptions to title which
are not acceptable to Purchaser in Purchaser's reasonable discretion (any such
exception being referred to herein as an "UNPERMITTED TITLE EXCEPTIONS"), then
Purchaser shall give Seller notice of any Unpermitted Title Exception on or
prior to the 7th day following Purchaser's receipt of the Title Commitment and
Survey (said 7th day being hereinafter sometimes referred to as the "Title and
Survey Objection Deadline"). Any matters not objected to by Purchaser on or
prior to the Title and Survey Objection Deadline shall be deemed "PERMITTED
TITLE EXCEPTIONS". Seller acknowledges that under letter dated July 16, 2003
issued by Purchaser's counsel (the "Title and Survey Comments Letter"), a copy
of which is attached hereto as Exhibit "R", Purchaser gave Seller timely notice
of Unpermitted Title Exceptions. Seller agrees to make commercially reasonable
efforts to resolve, to Purchaser's satisfaction, the Unpermitted Title
Exceptions referred to in the Title and Survey Comments Letter on or before
twelve (12) days prior to the Closing Date (and Seller shall have the right to
adjourn the Closing Date for up to sixty (60) days in order to effectuate same).
If Seller fails or is unable to resolve to Purchaser's satisfaction, the
Unpermitted Title Exceptions referred to in the Title and Survey Comments Letter
on or before twelve (12) days prior to the Closing Date, then either party shall
be entitled to terminate this Agreement. In such case, Seller and Purchaser
shall direct the Title Company to return the Downpayment to Purchaser, and
neither party
- 9 -
shall have any further obligation under this Agreement, except that the
obligations of the parties under SECTIONS 13, 31, 32, 34, 35.2 and 35.3 shall
survive.
8.3. If the Survey discloses conditions or exceptions to title
which are not acceptable to Purchaser in Purchaser's reasonable discretion (any
such exception being referred to herein as an "UNPERMITTED SURVEY CONDITION"),
then Purchaser shall give Seller notice of any Unpermitted Survey Condition on
or prior to the Title and Survey Objection Deadline. Any matters not objected to
by Purchaser on or prior to the Title and Survey Objection Deadline shall be
deemed "PERMITTED SURVEY CONDITIONS". Seller acknowledges that pursuant to the
Title and Survey Comments Letter, Purchaser gave Seller timely notice of
Unpermitted Survey Conditions. Seller agrees to make commercially reasonable
efforts to resolve, to Purchaser's satisfaction, the Unpermitted Survey
Conditions referred to in the Title and Survey Comments Letter on or before
twelve (12) days prior to the Closing Date (and Seller shall have the right to
adjourn the Closing Date for up to sixty (60) days in order to effectuate same).
If Seller falls or is unable to resolve to Purchaser's satisfaction, the
Unpermitted Survey Conditions referred to in the Title and Survey Comments
Letter on or before twelve (12) days prior to the Closing Date, then either
party shall be entitled to terminate this Agreement. In such case, Seller and
Purchaser shall direct the Title Company to return the Downpayment to Purchaser,
and neither party shall have any further obligation under this Agreement, except
that the obligations of the parties under SECTIONS 13, 31, 32, 34, 35.2 and 35.3
shall survive.
8.4. In the event that any update of the Title Commitment or the
Survey shows any new adverse matters or conditions to which Purchaser does not
desire to take subject. Purchaser shall deliver notice thereof to Seller not
later than five (5) days prior to the Closing Date (and if Purchaser fails to
deliver such notice within such five (5) day period, then Purchaser shall be
deemed to have accepted such matters or conditions as Permitted Title Exceptions
or Permitted Survey Conditions, as applicable). Seller shall have three (3)
Business Days following the receipt of any such notice in which to give
Purchaser notice that Seller will either (a) make commercially reasonable
efforts to cause such new matter or condition to be deleted from the Title
Commitment or removed from the Survey, as the case may be, or (b) not cause such
new matter or condition to be deleted from the Title Commitment or removed from
the Survey. If Seller gives notice pursuant to clause (a), then Seller will
cause same to occur prior to the Closing Date (and Seller shall have the right
to adjourn the Closing Date for up to sixty (60) days in order to effectuate
same). If Seller (i) fails to give any such notice within said three (3)
Business Day period, or (ii) fails, after having made commercially reasonable
efforts, to cause such new matter or condition to be deleted from the Title
Commitment or removed from the Survey, as the case may be, or (iii) gives
Purchaser notice that Seller will not cause such new matter or condition to be
deleted from the Title Commitment or the Survey or otherwise cured as requested
by Purchaser, as the case may be, then Purchaser will have until 5PM Central
Time on September 16, 2003 to elect either to terminate this Agreement, or to
waive the right to terminate this Agreement as a result of any such new matter
or condition, which election must be made by the giving of notice thereof to
Seller on or before 5PM Central Time on September 16, 2003. If Purchaser fails
to deliver such notice waiving Purchaser's right to terminate this Agreement as
a result of such new matter or condition on or before 5PM Central Time on
September 16, 2003, then Purchaser shall be deemed to have terminated this
Agreement. If Purchaser elects to waive the right to terminate this Agreement as
aforesaid, then any new matter or condition previously objected to by Purchaser
shall become Permitted Survey Conditions or Permitted Title Exceptions, as the
case may be. If Purchaser terminates this Agreement as aforesaid, then the
Seller and Purchaser shall direct the Title Company to return the Downpayment to
Purchaser, and neither party shall have any further obligation under this
Agreement, except that the obligations of the parties under SECTIONS 13, 31, 32,
34, 35.2 and 35.3 shall survive. Seller shall be entitled to deliver its notice
under (a) or (b) above in its sole and absolute discretion subject to the
provisions of SECTION 8.5 of this Agreement.
8.5. Notwithstanding anything contained herein to the contrary,
except as specified in this SECTION 8.5, Seller shall have no obligation to take
any steps, bring any action or proceeding or incur any effort or expense
whatsoever to cure any title or survey objection, PROVIDED, HOWEVER,
notwithstanding the foregoing, Seller shall cause to be removed as exceptions to
title (i) any mortgages, mechanic's or materialmen's liens filed against the
Shopping Center due to work performed at the Shopping Center by Seller at
Seller's direction (and Seller shall have the right to adjourn the Closing Date
for up to sixty (60) days in order to effectuate same) and (ii) any consensual
lien or encumbrance placed upon the Shopping Center by Seller subsequent to the
date of the Title Commitment and which can be removed as an exception to title
by the payment of a sum money, the amount of which is fixed or
readily-ascertainable.
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9. DISPOSITION OF DOWNPAYMENT.
If (x) Seller is unable to convey title in accordance with the
terms of this Agreement, or (y) in accordance with the provisions of SECTIONS 5,
8, 11, 20, 35 or 36 of this Agreement, Purchaser is entitled to and does elect
to terminate this Agreement, Seller and Purchaser shall direct the Escrow Agent
to refund to Purchaser the Downpayment (or such portion thereof as shall have
been deposited with the Escrow Agent together with all interest thereon, if
any). Upon such delivery of the Downpayment to Purchaser, this Agreement shall
terminate and neither party to this Agreement shall have any further rights or
obligations hereunder, except for obligations of the parties under SECTIONS 13,
31, 32, 34, 35.2 and 35.3.
10. PURCHASER'S DEFAULT.
If Purchaser shall default hereunder (including, without
limitation, a default hereunder based on breach by Purchaser of Purchaser's
Representations [as hereinafter defined] that is discovered prior to the
Closing) or shall fail or refuse to perform its obligation to purchase the
Shopping Center in accordance with this Agreement, Seller, as its sole and
exclusive remedy (except as provided in this SECTION 10), shall have the right
to cause Escrow Agent to deliver to Seller the Downpayment (with all interest
thereon, if any), as and for its liquidated damages (the parties hereto
acknowledging that it would be difficult or impossible to accurately ascertain
the amount of Seller's damages). Notwithstanding the foregoing, the liquidated
damages limitation set forth above shall have no application to any claim made
by Seller against Purchaser based on Purchaser's obligations under SECTIONS 13,
31, 32, 34, 35.2 or 35.3 herein, and in the event Seller has a claim against
Purchaser based on any such Section, Seller shall be entitled to recover damages
for such claim in addition to retention to the Downpayment. For example, if
under SECTION 35.2 Purchaser is obligated to indemnify Seller for damages of
$10,000 and Purchaser defaults under this Agreement, then Seller shall be
entitled to receive $10,000 plus the entire Downpayment plus accrued interest
thereon plus amounts under SECTION 32.
11. REPRESENTATIONS.
11.1. Seller hereby represents and warrants to Purchaser that, as
of the date hereof:
(i) Seller is a limited liability company duly organized
and in good standing under the laws of the State of Texas and qualified to do
business in, and in good standing under the laws of the State of Texas;
(ii) the execution, delivery and performance of this
Agreement by Seller (a) are within Seller's powers and (b) have been duly
authorized by all necessary corporate, partnership and/or other action;
(iii) attached hereto as EXHIBIT "D" is a rent roll for
the Shopping Center, which, to the actual knowledge of Seller, is accurate in
all material respects as of the date hereof. To Seller's actual knowledge, no
parties except the tenants identified in EXHIBIT "D" (and any permitted
assignees, sublessees, licensees and/or concessionaires thereof) has or shall
have on the Closing Date any right to occupy any portion of the Shopping Center.
A revised EXHIBIT "D", to be designated EXHIBIT "D-1", shall be certified by
Seller to its actual knowledge as being true and correct in all material
respects as of Closing, shall reflect those Leases and guarantees in effect on
the Closing Date and shall be delivered to Purchaser at Closing as provided in
SECTION 7.1 (xiii) hereof. As of the date hereof, and to the actual knowledge of
Seller, each of the Leases described in EXHIBIT "D" is valid and subsisting and
in full force and effect, has not been amended, modified or supplemented other
than as previously delivered to Purchaser. To Seller's actual knowledge, the
copies of the Leases and guarantees previously or hereafter delivered by Seller
to Purchaser for Purchaser's review were and will be, respectively, true and
complete copies thereof. Seller has received no written notice of default or
breach on the part of the landlord under any of the Leases which remains uncured
by the landlord. Except as set forth on EXHIBIT "D", AND EXCEPT AS PREVIOUSLY
DISCLOSED BY SELLER TO PURCHASER REGARDING CERTAIN RIGHTS GRANTED TO WALGREEN,
AS MORE FULLY SET FORTH IN THE WALGREEN LEASE, no tenant under any of the Leases
is entitled to any purchase option or right of first refusal regarding a sale of
the Shopping Center. To Seller's actual knowledge, no Lease extends beyond the
term and option terms stated therein. Except as set forth on EXHIBIT "D", and
except for those Leasing Commissions, etc. payable by Purchaser in accordance
with Section 6.8 above, to Seller's actual knowledge, no other Leasing
Commissions are now due and payable, or on the Closing Date shall be due and
payable, by Seller;
(iv) to the actual knowledge of Seller, EXHIBIT "E" sets
forth a true, correct and complete list of all material Existing Service
Contracts in effect as of the date hereof. Seller has no employees in connection
with the operation of the Shopping Center whose employment will not be lawfully
terminated, prior to Closing, without recourse to Purchaser. To the actual
knowledge of Seller, the Existing Service Contracts delivered by Seller to Buyer
are true and
- 11 -
complete copies of all Service Contracts now in effect. To the actual knowledge
of Seller, no person or entity bound by any Existing Service Contract has given
notice to Seller of any claim of default under any such Service Contract;
(v) to the actual knowledge of Seller and except as set
forth in the reports described in EXHIBIT "M" (the "ENVIRONMENTAL REPORTS"),
Seller has received no written notice from any Environmental Agency (as
hereinafter defined) to the effect that there has been a release of any
Hazardous Material (as hereinafter defined) on the Shopping Center. The term
"HAZARDOUS MATERIAL" shall mean asbestos, petroleum products, and any other
hazardous waste or substance which has, as of the date hereof, been determined
to be hazardous or a pollutant by the U.S. Environmental Protection Agency, the
U.S. Department of Transportation, or any instrumentality authorized to
regulate substances in the environment which has jurisdiction over the Shopping
Center ("ENVIRONMENTAL AGENCY") which substance causes the Shopping Center (or
any part thereof) to be in material violation of any applicable environmental
laws; PROVIDED, HOWEVER, that the term "Hazardous Material" shall not include
(x) motor oil, gasoline and other automotive fluids contained in or discharged
from vehicles not used primarily for the transport of motor oil or gasoline, or
(y) materials which are stored, used and/or sold in the ordinary course of a
tenant's occupancy at (or in the course of Seller's or Seller's managing agents'
operation of) the Shopping Center, including but not limited to cleaning
supplies, office supplies, Insecticides and other similar products stored, use
and/or sold in the ordinary course of business;
(vi) to the actual knowledge of Seller, except as set
forth on EXHIBIT "N", there is no material litigation pending or threatened with
respect to the Shopping Center (other than as is covered by insurance);
(vii) to the actual knowledge of Seller, except as set
forth on EXHIBIT "F", (aa) Seller has not received written notice of that Seller
is in material default under that certain Amended and Restated Declaration of
Restrictions for Park Place Shopping Center dated the 17th day of April, 2000,
and recorded in Volume 4469, Page 1005 Deed Records of the Collin County, Texas
real estate records [the "REA"], and (bb) Seller has not received written notice
from any governmental authority having jurisdiction over the Shopping Center (x)
to the effect that the Shopping Center is not in compliance in all material
respects with applicable laws and ordinances, or (y) of any pending or
threatened condemnation, eminent domain or similar proceeding with respect to
the Shopping Center;
(viii) neither the execution, delivery or performance by
Seller of this Agreement, the fulfillment of and compliance with the respective
terms and provisions hereof by Seller, nor the consummation of the transactions
contemplated hereby by Seller, will (aa) conflict with, or result in a breach
of, any of the terms, conditions or provisions of, or constitute a default
under, or give rise to any right of termination, acceleration, or cancellation
under any agreement or other instrument or other obligation to which Seller is a
party or is subject, (bb) to the actual knowledge of Seller, constitute a
material violation of any code, resolution, law, statute, regulation, ordinance,
rule, judgment, decree, determination, writ or order applicable to Seller, or
(iii) violate the terms of Seller's organizational documents;
(ix) None of the funds to be received by Seller under
this Agreement will be subject to 18 U.S.C. Sections 1956-1957 (Laundering
of Money Instruments), 18 U.S.C. Sections 981-986 (Federal Asset
Forfeiture), 21 U.S.C. Section 881 (Drug Property Seizure), Executive Order
Number 13224 on Terrorism Financing, effective September 24, 2001, or the United
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (the "USA
PATRIOT ACT");
(x) except as otherwise provided in this Agreement, all
bills and other payments due from Seller with respect to the ownership,
operation and maintenance of the Shopping Center have been, or on the Closing
Date shall be, paid in full by Seller or prorated by Seller and Purchaser.
As used herein, the term "to the actual knowledge of
Seller" and words of similar import, shall mean the actual, present cognitive
awareness (as differentiated from imputed or constructive knowledge) of Xxxxxxx
Xxxxxxx without any obligation to make inquiry of any kind. The Seller
represents that Xxxxxxx Xxxxxxx has been the Asset Manager of the Shopping
Center since April 2000.
11.2. Purchaser hereby represents and warrants to Seller that, as
of the date hereof:
(i) Purchaser is a corporation, validly existing, duly
organized and in good standing under the laws of the State of Illinois and, on
the Closing Date shall be duly qualified to do business in the State of Texas;
- 12 -
(ii) the execution, delivery and performance of this
Agreement by Purchaser (a) are within Purchaser's corporate, partnership,
limited liability or other applicable powers, and (b) have been duly authorized
by all necessary corporate, partnership, limited liability or other applicable
action;
(iii) neither the execution, delivery or performance by
Purchaser of this Agreement, the fulfillment of and compliance with the
respective terms and provisions hereof by Purchaser, nor the consummation of the
transactions contemplated hereby by Purchaser, will (aa) conflict with, or
result in a breach of, any of the terms, conditions or provisions of, or
constitute a default under, or give rise to any right of termination,
acceleration, or cancellation under, any agreement or other instrument or other
obligation to which Purchaser is a party or is subject, (bb) to Purchaser's
knowledge, constitute a material violation of any code, resolution, law,
statute, regulation, ordinance, rule, judgment, decree, determination, writ or
order applicable to Purchaser, or (iii) violate the terms of Purchaser's
organizational documents;
(iv) Purchaser is not acquiring the Shopping Center with
the assets of an employee benefit plan as defined in Section 3(3) of the
Employment Retirement Income Security Act of 1974, as amended ("ERISA") and the
transaction which is the subject of this Agreement is not a prohibited
transaction under Section 406 of ERISA;
(v) None of the funds to be used for payment by
Purchaser of the Purchase Price will be subject to 18 U.S.C. Sections 1956-1957
(Laundering of Money Instruments), 18 U.S.C. Sections 981-986 (Federal Asset
Forfeiture), 21 U.S.C. Section 881 (Drug Property Seizure), Executive Order
Number 13224 on Terrorism Financing, effective September 24, 2001, or the United
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (the "USA
PATRIOT ACT").
(vi) Purchaser is not, and will not become, a person or
entity with whom U.S. persons are restricted from doing business with under
regulations of the Office of Foreign Asset Contract ("OFAC") of the Department
of the Treasury (including those named on OFAC's Specially Designated and
Blocked Persons list) or under any statute, executive order (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action; and
(vii) This Agreement constitutes, and all other
agreements, documents and instruments to be executed by Purchaser pursuant
hereto, when duly executed and delivered by Purchaser, will each constitute,
valid and binding obligations of Purchaser, enforceable in accordance with their
respective terms.
11.3. Each of the representations and warranties set forth in
Section 11.1 (collectively, "Seller's Representations") shall be deemed to have
been remade at and as of the Closing Date with the same force and effect as if
first made on and as of such date; provided, that, at the Closing, Seller may
submit to Purchaser one (1) or more schedules, certified as true and correct as
of the Closing Date by Seller, which modify or update any of Seller's
Representations, or any Exhibits referred to therein, to reflect matters, if
any, which arise subsequent to the date hereof, and Seller's Representations
shall be deemed to have been remade with the changes, if any, set forth in such
schedule or schedules. If prior to Closing, Seller's Representations made as of
the date hereof are determined to be untrue in any material respect as of the
date hereof or if Seller's Representations, as remade on the Closing Date, shall
result in Seller's Representations made as of the date hereof being untrue in
any material respect as of the Closing Date, or if any of Seller's
Representations, as remade on the Closing Date reflect a material change, to
Purchaser's detriment of any of Seller's Representations, as originally made,
Purchaser may, at its option, and as its sole remedy (Purchaser specifically
waiving any right to bring an action against Seller for damages arising
therefrom), either (i) terminate this Agreement by notice in writing to Seller,
in which event (subject to the provisions of this Section 11.3) Seller shall
cause the Escrow Agent to take the actions required to be taken in respect of
the Downpayment pursuant to Section 9, whereupon neither party shall have any
further rights or obligations hereunder except that the obligations of the
parties under Sections 13, 31, 32, 34, 35.2 and 35.3 shall survive, or (ii)
waive the same and accept title to the Shopping Center without any abatement of
the Purchase Price; provided, however, that Purchaser shall have no right to
terminate this Agreement as a result of any modification to or updating of
Seller's Representations to reflect (w) Approved New Leases, Approved Lease
Amendments, Approved New Service Contracts, or Approved Service Contract
Amendments, (x) changes to the rent roll for the Shopping Center or to the
Service Contracts that arise after the date hereof (it being expressly
acknowledged and agreed by Purchaser that the risk of changes to the rent roll
for the Shopping Center or the leasing status of the Shopping Center for any
reason after the date hereof is Purchaser's risk and no such change is intended
to grant Purchaser any right to terminate this Agreement or obtain any damages
from Seller), or (y) changes to the schedule of litigation set forth in Exhibit
"N" to reflect any additions or deletions other than litigation that if
adversely determined would affect title to the Shopping Center (it being
expressly acknowledged and agreed that (A) changes to
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the schedule of litigation for any reason, including, without limitation,
landlord/tenant litigation and claims covered by insurance, after the date
hereof are Purchaser's risk (meaning that no such change is intended to grant
Purchaser any right to terminate this Agreement or obtain any damages from
Seller), and (B) changes to the schedule of litigation for matters affecting
title to the Shopping Center are Seller's risk (meaning that any such changes to
the schedule of litigation shall entitle Purchaser to terminate this Agreement
subject to and in accordance with the provisions of this Section 11.3 but no
such changes to the schedule of litigation shall, if not cured by Seller,
entitle Purchaser to bring any action against Seller or constitute a breach of a
representation or warranty of Seller); provided, further, however, Purchaser
shall have no right to terminate this Agreement pursuant to the provisions of
this Section 11.3 as a result of the untruth of any Seller's Representation if,
within ten (10) days after the delivery of Purchaser's notice terminating this
Agreement, Seller delivers written notice of intention to cure to Purchaser, in
which event Purchaser's notice of termination shall be without effect and Seller
shall, at Seller's option, either (i) cause such untrue Seller's Representation
to be corrected at or before Closing (and Seller shall be entitled to adjourn
the date of the Closing for not more than sixty (60) days to effectuate such
cure), or (ii) [intentionally deleted]. Seller's Representations (as modified or
updated by Seller in accordance with the provisions of this Section 11) shall
survive the Closing for a period of one hundred eighty (180) days. Within
ten (10) days of becoming aware that any of Seller's Representations are untrue
in any material respect, Purchaser shall deliver notice thereof to Seller
stating whether Purchaser desires to proceed under clause (i) or (ii) above in
respect thereof, and in the event that Purchaser fails to so notify Seller of
any such untruth and its desire to proceed under clause (i) or (ii) above within
such ten (10) day period, then Purchaser shall be deemed to have waived its
right to assert the untruth of such representation against Seller pursuant to
the terms hereof. Without limitation of the foregoing, in the event that
Purchaser becomes aware that any of Seller's Representations are untrue in any
material respect prior to the Closing Date and nonetheless proceeds to Closing
without making a claim under this Section 11.3, then same shall be deemed to be
a waiver by Purchaser of any further right to make a claim arising out of such
falsity of such Seller's Representation.
11.4. Each of the representations and warranties set forth in
Section 11.2 (collectively, "Purchaser's Representations") shall be deemed to
have been remade at and as of the Closing Date with the same force and effect as
if first made on and as of such date. Purchaser's Representations shall survive
the Closing for a period of one hundred eighty (180) days.
11.5. If any of Purchaser's Representations or Seller's
Representations is discovered to be untrue in any material respect after
Closing, and a claim is asserted within the time period set forth in SECTION
11.3 or SECTION 11.4, as the case may be, then Seller or Purchaser, as the case
may be, shall, subject to SECTION 19, have the right to pursue any and all
remedies available against Purchaser or Seller, as the case may be, as a result
of such inaccuracy, PROVIDED, HOWEVER, (A) Purchaser shall not pursue any claim
against Seller that causes damage to Purchaser that is less than the Floor (as
hereinafter defined) and (B) the maximum amount of liability that Seller shall
have under any circumstance for any surviving obligation under this Agreement
(including, without limitation, any obligation arising out of any Seller's
Representation that survives the Closing, any indemnification or other
obligation contained herein that is specifically stated to survive the Closing,
any obligation of Seller under any Seller Estoppel Certificate [as hereinafter
defined] and any liability under any other document or instrument delivered by
Seller in connection with the Closing) shall not exceed a total aggregate amount
of $250,000 (the "MAXIMUM AMOUNT"). As used herein, the term "FLOOR" shall mean,
with respect to any claim against Seller for the breach of any of Seller's
Representations, $15,000.00.
12. FIXTURES AND PERSONAL PROPERTY.
All of Seller's right, title and interest in and to all fixtures,
machinery, equipment and other articles of personal property attached or
appurtenant to, or used in connection with, the Shopping Center are included in
this sale.
13. BROKERS.
13.1. Purchaser represents and warrants that Purchaser has not
dealt with any broker, agent, finder or similar party in connection with the
transaction contemplated hereby other than CB Xxxxxxx Xxxxx (the "Broker") and
Purchaser hereby indemnifies and holds harmless Seller and each Seller
Exculpated Party (as hereinafter defined) from any liability, cost or expense
(including, without limitation, reasonable attorneys' fees and costs of
enforcement of the foregoing indemnity) arising out of the falsity of the
foregoing representation.
13.2. Seller represents and warrants that Seller has not dealt
with any broker, agent, finder or similar party in connection with the
transaction contemplated hereby other than Broker and Seller hereby indemnifies
and holds
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harmless Purchaser and each Purchaser Exculpated Party (as hereinafter defined)
from any liability, cost or expense (including, without limitation, reasonable
attorneys' fees and costs of enforcement of the foregoing indemnity) arising out
of the falsity of the foregoing representation.
13.3. Seller shall be responsible for the payment of any
commission due Broker pursuant to separate agreement and shall indemnify and
hold harmless Purchaser and each Purchaser Exculpated Party from any liability,
cost or expense (including, without limitation, reasonable attorneys' fees and
costs of enforcement of the foregoing indemnity) in connection with any
commission or other compensation claimed to be due by Broker from Purchaser in
connection with this transaction. No commission, fee or other compensation or
remuneration shall be earned by, or due or payable to, the Broker except if, as
and when (a) the Closing hereunder shall take place, and (b) Seller shall
receive the full amount due Seller at such Closing, as provided in Section 2
above, and (c) [intentionally deleted].
13.4. The provisions of this SECTION 13 shall survive the Closing
or any earlier termination of this Agreement.
14. CONDEMNATION AND DESTRUCTION.
14.1. If, prior to the Closing Date a Non-Material Taking (as
hereinafter defined) occurs, then (i) Seller shall notify Purchaser of such
fact, (ii) Purchaser shall not have any right or option to terminate this
Agreement and this Agreement shall continue in effect, (iii) at the Closing,
Purchaser shall accept the Shopping Center subject to such Non-Material Taking
or so much of the Shopping Center as remains after such Non-Material Taking, as
the case may be, with no abatement of the Purchase Price, and (iv) at the
Closing, Seller shall assign and turn over to Purchaser, and Purchaser shall be
entitled to receive and keep, all of Seller's interest in and to all awards for
such Non-Material Taking. If, prior to the Closing Date, a Material Taking (as
hereinafter defined) occurs with respect to the Shopping Center, then (i) Seller
shall notify Purchaser of such fact and (ii) Purchaser shall have the right to
terminate this Agreement by delivering notice of such termination to Seller on
or before the tenth (10th) day after Purchaser receives such notice from Seller,
and if necessary, the Closing Date shall be postponed until the Business Day
next immediately following such tenth (10th) day. In the event that Purchaser
fails to exercise such termination right within such ten (10) day period,
Purchaser shall be deemed to have waived such termination right, in which event
the provisions of the first sentence of this SECTION 14.1 shall apply to such
Material Taking. In the event that Purchaser delivers a notice of termination
within such ten (10) day period, then this Agreement shall terminate, Escrow
Agent shall refund the Downpayment to Purchaser, whereupon neither party shall
have any further rights or obligations hereunder except that the obligations of
the parties under SECTIONS 13, 31, 32, 34, 35.2 and 35.3 shall survive.
14.2. If, prior to the Closing Date a Non-Material Casualty (as
hereinafter defined) occurs, then (i) Seller shall promptly notify Purchaser of
such fact, (ii) Purchaser shall not have any right or option to terminate this
Agreement and this Agreement shall continue in effect, (iii) at the Closing
Purchaser shall accept the Shopping Center in its then "as is" condition with no
abatement of the Purchase Price, and (iv) at the Closing, Seller shall assign
and turn over to Purchaser, and Purchaser shall be entitled to receive and keep,
all of Seller's interest in and to all insurance proceeds payable in connection
with such Casualty, and Purchaser shall receive a credit against the Purchase
Price at the Closing in the amount of any loss deductible payable in connection
with such insurance proceeds plus an amount equal to all additional funds (in
excess of available insurance proceeds) reasonably required to fully restore the
Shopping Center to its condition prior to such Non-Material Casualty. If, prior
to the Closing Date, a Material Casualty (as hereinafter defined) occurs with
respect to the Shopping Center, then (i) Seller shall promptly notify Purchaser
of such fact and (ii) Purchaser shall have the right to terminate this Agreement
by delivering notice of such termination to Seller on or before the tenth (10th)
day after Purchaser receives such notice from Seller, and if necessary, the
Closing Date shall be postponed until the Business Day next immediately
following such tenth (10th) day. In the event that Purchaser fails to exercise
such termination right within such ten (10) day period, Purchaser shall be
deemed to have waived such termination right, in which event the provisions of
the first sentence of this SECTION 14.2 shall apply to such Material Casualty.
In the event that Purchaser delivers a notice of termination within such ten
(10) day period, then this Agreement shall terminate, Escrow Agent shall refund
the Downpayment to Purchaser, whereupon neither party shall have any further
rights or obligations hereunder except that the obligations of the parties under
SECTIONS 13, 31, 32, 34, 35.2 and 35.3 shall survive.
14.3. As used herein, the following terms shall have the
following meanings:
"CASUALTY" means the destruction of all or a portion of the
Shopping Center by fire or other casualty.
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"MATERIAL CASUALTY" means a Casualty (i) which results in damage
to the Shopping Center where the cost to repair is $500,000 or more or (ii)
which causes any tenant to terminate its lease at the Shopping Center or to
xxxxx the payment of rent.
"MATERIAL TAKING" means a Taking (i) which affects more than two
percent (2%) of the Shopping Center, or (ii) which materially and adversely
affects access to the Shopping Center, or (iii) which causes any tenant
occupying to terminate its lease at the Shopping Center or to xxxxx the payment
of rent.
"NON-MATERIAL CASUALTY" means any Casualty other than a Material
Casualty.
"NON-MATERIAL TAKING" means any Taking other than a Material
Taking.
"TAKING" means any actual or overtly threatened taking of any
portion of the Shopping Center by condemnation or eminent domain.
15. ESCROW.
15.1. The Escrow Agent shall hold and disburse the Deposit as
provided in this Agreement.
15.2. If the Closing takes place, the Escrow Agent shall deliver
the Downpayment to, or upon the instructions of, Seller at the Closing, unless
Purchaser shall wire to Escrow Agent on or prior to the Closing Date the full
amount of the Purchase Price, in which event, upon Closing, the Downpayment
shall be returned to Purchaser.
15.3. If this Agreement is terminated in accordance with the
terms hereof, or if the Closing does not take place under this Agreement by
reason of the failure of either party to comply with such party's obligations
hereunder, then the Escrow Agent shall pay the Downpayment, as set forth in a
written notice to Escrow Agent from Seller and/or Purchaser, provided however,
that if such written notice has not been jointly executed by both Seller and
Purchaser, then Escrow Agent shall not disburse any portion of the Downpayment
until (a) Escrow Agent shall have provided ten (10) days' prior notice to both
Seller and Purchaser of Escrow Agent's intention to disburse the Downpayment in
accordance with the instructions set forth in the notice provided to Escrow
Agent (which notice from Escrow Agent shall include a copy of the notice
provided to Escrow Agent) and (b) neither Seller nor Purchaser shall have
objected to such disbursement during such ten (10) day period.
15.4. It is agreed that;
(i) the duties of the Escrow Agent are only as herein
specifically provided and are purely ministerial in nature, and the Escrow
Agent shall incur no liability whatever except for willful misconduct or gross
negligence, as long as the Escrow Agent has acted in good faith;
(ii) in the performance of its duties hereunder, the
Escrow Agent shall be entitled to rely upon any document, instrument or
signature believed by it to be genuine and signed by either or both of the
parties or their successors;
(iii) the Escrow Agent may assume that any person
purporting to give any notice of instructions in accordance with the provisions
hereof has been duly authorized to do so;
(iv) the Escrow Agent shall not be bound by any
modification, cancellation or rescission of this Agreement unless in writing and
signed by it, Seller and Purchaser;
(v) Seller and Purchaser shall jointly and severally
reimburse and indemnify the Escrow Agent for, and hold it harmless against, any
and all loss, liability, costs or expenses in connection herewith, including
reasonable attorneys' fees and disbursements, incurred without willful
misconduct or gross negligence on the part of the Escrow Agent arising out of or
in connection with its acceptance of, or the performance of its duties and
obligations under, this Agreement, as well as the reasonable costs and expenses
of defending against any claim or liability arising out of or relating to this
Agreement;
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(vi) Seller and Purchaser each hereby release the Escrow
Agent from any act done or omitted to be done by the Escrow Agent in good faith
without gross negligence or willful misconduct in the performance of its duties
hereunder; and
(vii) if requested by the Escrow Agent, Seller and
Purchaser shall each execute Escrow Agent's standard form or escrow agreement
provided that the terms thereof shall not be substantively inconsistent with the
terms set forth in this Section 15.
15.5. The Escrow Agent is acting as a stake-holder only with
respect to the Downpayment. If there is any dispute as to whether the Escrow
Agent is obligated to deliver all or any portion of the Downpayment or as to
whom the proceeds of the Downpayment are to be delivered, the Escrow Agent shall
not be required to make any delivery, but in such event the Escrow Agent shall
hold the Downpayment until receipt by the Escrow Agent of an authorization in
writing, signed by all of the parties having any interest in such dispute,
directing the disposition of the Downpayment, or, in the absence of such
authorization, the Escrow Agent shall hold the Downpayment, until the final
determination of the rights of the parties in an appropriate proceeding. If such
written authorization is not given, or proceedings for such determination have
not begun within ninety (90) days after the date the Escrow Agent receives
written notice of such dispute, and thereafter diligently continued, the Escrow
Agent may, but is not required to, bring an appropriate action or proceeding for
leave to deposit the Downpayment in court, pending such determination. The
Escrow Agent shall be reimbursed for all costs and expenses of such action or
proceeding including, without limitation, reasonable attorneys' fees and
disbursements, by the party determined not to be entitled to the Downpayment, or
if the Downpayment is split between the parties hereto, such costs of the Escrow
Agent shall be split, PRO RATA, between Seller and Purchaser, based upon the
amount of Downpayment received by each. Upon making delivery of the Downpayment,
in the manner provided in this Agreement, the Escrow Agent shall have no further
liability hereunder.
15.6. The Escrow Agent has executed this Agreement contract
solely to confirm (i) receipt of the Deposit and (ii) that the Escrow Agent,
upon receipt thereof, will hold the Downpayment in escrow, pursuant to the
provisions of this Agreement.
16. CLOSING COSTS.
Seller shall pay (i) all documentary stamp taxes, surtaxes and
other transfer, stamp and conveyance taxes and recording fees with respect to
this transaction and/or the Deed, (ii) all title examination and search fees and
that portion of the title insurance premium payable in connection with the
policy of owner's title insurance to be issued Purchaser in connection with the
Shopping Center which would be payable for a standard coverage owner's title
insurance policy, (iii) [intentionally deleted], (iv) [intentionally deleted],
(v) [intentionally deleted], (vi) [intentionally deleted], (vii) the cost of the
Survey, and (viii) fifty percent (50%) of any escrow fees charged by Escrow
Agent. Purchaser shall pay (i) fifty percent (50%) of any escrow fees charged by
Escrow Agent, (ii) any additional title insurance premiums payable in connection
with the owner's policy of title insurance to be issued to Purchaser as
aforesaid, i.e., in excess of the sum payable by Seller on account thereof, as
set forth above, (iii) any and all premiums payable in connection with the
modification of the survey exception in such owner's title insurance policy (if
requested by Purchaser) and in connection with any endorsements to such owner's
title insurance policy (if requested by Purchaser, provided same are permitted
to be issued in connection with this transaction pursuant to applicable Texas
title insurance regulations), and (iv) all due diligence costs related to this
transaction. Each party shall pay its own legal fees and all of its other
expenses in connection with this transaction.
17. SELLER'S COVENANTS.
Seller agrees as follows:
17.1. Between the date hereof and the Closing Date or earlier
termination of this Agreement, Seller will provide or cause to be provided
substantially such services with respect to the Shopping Center that have been
provided by Seller in the past in accordance with its customary practice.
17.2. Between the date hereof and the Closing Date or earlier
termination of this Agreement, Seller will maintain casualty insurance and
liability insurance with respect to the Shopping Center (which insurance may be
effected under a blanket policy or policies of insurance) in accordance with its
past practice.
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17.3. Between the date hereof and the Closing Date, Seller will
cause to be performed all normal operational repairs required to be made to the
Shopping Center in order to maintain the Shopping Center in its condition as of
the date of this Agreement, reasonable wear and tear and natural deterioration
and damage by fire or other casualty or condemnation excepted, provided that the
foregoing shall not have the effect of requiring Seller to make any repairs or
replacements of a capital nature to the Shopping Center.
18. APPROVAL OF LEASES AND SERVICE CONTRACTS.
18.1. From and after the date hereof, in the event that Seller
desires to enter into (i) any amendment, modification, renewal or extension of
any Existing Lease (a "PROPOSED LEASE AMENDMENT") or (ii) any new lease
affecting any portion of the Shopping Center (a "PROPOSED NEW LEASE"), Seller
shall deliver written notice ("LEASING NOTICE") to Purchaser, which Leasing
Notice shall contain a copy of such Proposed Lease Amendment or Proposed New
Lease (and supporting tenant data and tenant credit information) and request
Purchaser's consent to such Proposed Lease Amendment or Proposed New Lease.
Within five (5) Business Days after Seller delivers the Leasing Notice to
Purchaser, Purchaser shall deliver written notice to Seller approving or
disapproving such Proposed Lease Amendment or such Proposed New Lease (and if
Purchaser disapproves such Proposed Lease Amendment or Proposed New Lease
Purchaser shall specify in such notice the reasons for such disapproval). On or
prior to the expiration of the Due Diligence Period, Purchaser shall not
unreasonably withhold its consent to any such Proposed Lease Amendment or
Proposed New Lease. Subsequent to the expiration of the Due Diligence Period,
Purchaser may withhold its consent to a Proposed Lease Amendment or Proposed New
Lease in its sole and absolute discretion. In the event that Purchaser fails to
affirmatively approve or disapprove any Proposed Lease Amendment or Proposed New
Lease within the five (5) Business Day period set forth above, Purchaser shall
be deemed to have approved such Proposed Lease Amendment or such Proposed New
Lease. If Purchaser shall approve (or be deemed to have approved) such Proposed
Lease Amendment or such Proposed New Lease, then Seller shall have the right to
execute such Proposed Lease Amendment or Proposed New Lease and upon such
execution and delivery, the same shall be deemed to be an "Approved Lease
Amendment" or an "Approved New Lease", as the case may be, for purposes of this
Agreement. If Purchaser, acting reasonably, shall disapprove such Proposed Lease
Amendment or such Proposed New Lease, then Seller shall not enter into such
Proposed Lease Amendment or Proposed New Lease.
18.2. From and after the date hereof, in the event that Seller
desires to enter into (i) any amendment, modification, renewal or extension of
any Existing Service Contract (a "PROPOSED SERVICE CONTRACT AMENDMENT"), or (ii)
any new service contract affecting any portion of the Shopping Center (a
"PROPOSED NEW SERVICE CONTRACT"), Seller shall deliver written notice to
Purchaser requesting Purchaser's consent to such Proposed Service Contract
Amendment or Proposed New Service Contract. Within five (5) Business Days after
Seller delivers such request to Purchaser, Purchaser shall deliver written
notice to Seller approving or disapproving such Proposed Service Contract
Amendment or such Proposed New Service Contract (and if Purchaser disapproves
such Proposed Service Contract Amendment or Proposed New Service Contract
Purchaser shall specify in such notice the reasons for such disapproval). On or
prior to the expiration of the Due Diligence Period, Purchaser shall not
unreasonably withhold its consent to any Proposed Service Contract Amendment or
Proposed New Service Contract. Subsequent to the expiration of the Due Diligence
Period, Purchaser may withhold its consent to a Proposed Service Contract
Amendment or Proposed New Service Contract in its sole and absolute discretion.
In the event that Purchaser fails to affirmatively approve or disapprove any
Proposed Service Contract Amendment or Proposed New Service Contract within the
five (5) Business Day period set forth above, Purchaser shall be deemed to have
approved such Proposed Service Contract Amendment or such Proposed New Service
Contract. If Purchaser shall approve such Proposed Service Contract Amendment or
such Proposed New Service Contract, then Seller shall have the right to execute
such Proposed Service Contract Amendment or Proposed New Service Contract and
upon such execution and delivery, the same shall be deemed to be an "Approved
Service Contract Amendment" or an "Approved New Service Contract", as the case
may be, for purposes of this Agreement. If Purchaser, acting reasonably, shall
disapprove such Proposed Service Contract Amendment or such Proposed New Service
Contract, then Seller shall not enter into such Proposed Service Contract
Amendment or Proposed New Service Contract. Notwithstanding the foregoing,
Seller shall have the right, without the necessity of obtaining the approval of
Purchaser, to execute any amendment to an Existing Service Contract and any new
service contract affecting the Shopping Center (a) if and to the extent that
such amendment to an Existing Service Contract or such new service contract will
not be binding upon Purchaser after the date of the Closing or (b) if such
amendment to an Existing Service Contract pertains to a Service Contract that
is, or such New Service Contract is, terminable by Purchaser without cost on not
more than thirty (30) days notice without penalty. Anything in this Agreement to
the contrary notwithstanding, it is expressly understood and agreed that
Purchaser shall be obligated to assume the Service Contracts, if any, more
particularly described in Part 2 of EXHIBIT "E".
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19. NON-LIABILITY.
19.1 Notwithstanding anything to the contrary contained in this
Agreement, none of the of the directors, officers, employees, shareholders,
members, managers, partners, agents or attorneys of Seller or of any partners of
Seller nor any other person, partnership, corporation or trust, as principal of
Seller, whether disclosed or undisclosed (collectively, the "SELLER EXCULPATED
PARTIES") shall have any personal obligation or liability hereunder, and
Purchaser shall not seek to assert any claim or enforce any of its rights
hereunder against any Seller Exculpated Party.
19.2 Notwithstanding anything to the contrary contained in this
Agreement, none of the of the directors, officers, employees, shareholders,
members, managers, partners, agents or attorneys of Purchaser or of any partners
of Purchaser nor any other person, partnership, corporation or trust, as
principal of Purchaser, whether disclosed or undisclosed (collectively, the
"Purchaser EXCULPATED PARTIES") shall have any personal obligation or liability
hereunder, except in connection with any negligent or wrongful act(s) or
omission(s) of any such Purchaser Exculpated Party(ies), and, except as relates
to any such negligent or wrongful act(s) or omission(s) of any such Purchaser
Exculpated Party(ies), Seller shall not seek to assert any claim or enforce any
of its rights hereunder against any Purchaser Exculpated Party.
20. SELLER'S DEFAULT.
Subject to the provisions of SECTION 19 hereof, if Seller fails to
comply in any material respect with any of the provisions of this Agreement,
then Purchaser, as its sole remedy (Purchaser specifically waiving any right to
bring an action for monetary damages), may either:
20.1. cause the Escrow Agent to take the actions with respect to
the Downpayment set forth in SECTION 9, whereupon this Agreement shall be
terminated and neither party shall have any further rights or obligations
hereunder, except that the obligations of the parties under SECTIONS 13, 31, 32,
34, 35.2 and 35.3 shall survive such termination; or
20.2. bring an action against Seller to seek specific performance
of Seller's obligations hereunder.
The foregoing shall not be deemed to limit Purchaser's rights, if
any, under SECTION 32 hereof.
21. CONDITION OF SHOPPING CENTER.
21.1. Except as otherwise expressly provided in this Agreement,
Purchaser shall accept the Shopping Center at the Closing in its "AS IS", "WHERE
IS" condition WITH ALL FAULTS as of the Closing Date. Purchaser agrees that,
except as expressly set forth herein, Seller shall not be liable for any latent
or patent defects in the Shopping Center, and shall not be bound in any manner
whatsoever by any guarantees, promises, projections, operating expenses, set-ups
or other information pertaining to the Shopping Center made, furnished or
claimed to have been made or furnished by Seller or any other person or entity,
including, without limitation, the Broker, or any partner, member, manager,
shareholder, employee, agent, attorney or other person representing or
purporting to represent Seller or the Broker, whether verbally or in writing.
Purchaser acknowledges that neither Seller nor any of the employees, agents or
attorneys of Seller has made any verbal or written representations or warranties
whatsoever to Purchaser, whether express or implied, except as expressly set
forth in this Agreement and, in particular, except as expressly set forth in
this Agreement, that no such representations and warranties have been made with
respect to the physical or environmental condition or operation of the Shopping
Center, the layout or footage of the Shopping Center, the actual or projected
revenue and expenses of the Shopping Center or any of the Leases, zoning and
entitlements, environmental, and other laws, regulations and rules applicable to
the Shopping Center, or the compliance of the Shopping Center therewith, the
quantity, quality or condition of the articles of personal property and fixtures
included in the transactions contemplated hereby, the use or occupancy of the
Shopping Center or any part thereof or any other matter or thing affecting or
relating to the Shopping Center or the transactions contemplated hereby, except
as specifically set forth in this Agreement. Purchaser has not relied and is not
relying upon any representations or warranties, other than the representations
and warranties expressly set forth in this Agreement, or upon any statements
made in any informational materials with respect to the Shopping Center provided
by Seller or any other person or entity, including the Broker, or any
shareholder, member, manager, employee, agent, attorney or other person
representing or purporting to represent Seller or the Broker. Without limitation
of the foregoing, Purchaser specifically acknowledges and agrees that it has
assumed the risk of changes in the condition of the Shopping Center due to
normal wear and tear between the date of this Agreement and the Closing Date and
no adverse change in such condition due
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to normal wear and tear shall grant Purchaser any right to terminate this
Agreement or to obtain any damages against Seller. In this connection, however,
It is understood and agreed (x) that the foregoing is not intended to limit
Purchaser's right to terminate this Agreement at or prior to the expiration of
the Due Diligence Period in accordance with SECTION 35 hereof, and (y) that in
the event of Casualty or Condemnation, the provisions of Section 14 above shall
apply, anything in this Section 21.1 to the contrary notwithstanding. IN
ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN
THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE
MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR
PURPOSE OF THE SHOPPING CENTER OR ANY COMPONENT THEREOF, AND THE SHOPPING CENTER
AND EACH COMPONENT THEREOF ARE SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH
ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS AGREEMENT,
PURCHASER AFFIRMS AND AGREES THAT (A) PURCHASER HAS NOT RELIED ON SELLER'S SKILL
OR JUDGMENT TO SELECT OR FURNISH THE SHOPPING CENTER OR ANY COMPONENT THEREOF
FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE SHOPPING
CENTER OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, AND (C)
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH
RESPECT TO THE SHOPPING CENTER OR ANY COMPONENT THEREOF. PURCHASER HAS BEEN
GIVEN THE OPPORTUNITY TO INSPECT THE SHOPPING CENTER AND EACH COMPONENT THEREOF
AND HAS DETERMINED TO PURCHASE THE SHOPPING CENTER AND EACH COMPONENT THEREOF
BASED ON SUCH INSPECTION.
21.2. Without limiting the generality of the provisions of
SECTION 21.1, Purchaser specifically acknowledges and agrees as follows:
(i) except as specifically set forth herein, neither
Seller nor any other party acting (or purporting to act) on behalf of Seller,
has made any representation or warranty of any kind of nature concerning any
environmental condition existing at the Shopping Center;
(ii) Seller has delivered to Purchaser copies of the
environmental reports listed on EXHIBIT "M" (the matters stated therein being
referred to as the "ENVIRONMENTAL DISCLOSED MATTERS");
(iii) Purchaser shall take title to the Shopping Center
subject to any and all environmental conditions thereat, whether known or
unknown, disclosed or undisclosed, including, without limitation, the
Environmental Disclosed Matters (any of the foregoing described in this CLAUSE
(iii) being referred to as "ENVIRONMENTAL CONDITIONS");
(iv) Purchaser hereby releases Seller and each Seller
Exculpated Party from any liability of any kind or nature arising with respect
to any Environmental Conditions and, specifically, agrees that if any claim is
brought against Purchaser arising out of any Environmental Condition Purchaser
shall have no claim of any kind or nature against Seller or any Seller
Exculpated Party; and
(v) Purchaser hereby assumes liability for any and all
Environmental Conditions and hereby indemnifies and holds harmless Seller and
each Seller Exculpated Party from any and all liabilities, claims, losses,
costs, expenses and damages (including, without limitation, reasonable
attorneys' fees, costs and disbursements and costs incurred in the enforcement
of the foregoing indemnification obligation) arising out of any Environmental
Condition, whether or not pre-existing at the Closing and whether or not
disclosed to Purchaser, it being the Intention of the parties hereto that from
and after the Closing (x) Seller shall have no further liability or obligation
in respect of environmental matters of any kind or nature pertaining to the
Shopping Center and (y) Purchaser shall fully assume any such liability or
obligation.
22. NOTICES.
All notices, offers or other communications required or permitted
to be given pursuant to this Agreement shall be in writing and shall be
considered as properly given or made (i) upon the date of personal delivery (if
notice is delivered by personal delivery), (ii) on the date of delivery, as
confirmed by electronic answerback (if notice is delivered by facsimile
transmission), or (iii) on the day of deposit with a nationally recognized
overnight courier service (if notice is
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delivered by nationally recognized overnight courier service), and in any case
addressed to the parties at the addresses set forth below (or to such other
addresses as the parties may specify by due notice to the other):
If to Seller:
CDG (Park Place), LLC
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Facsimile Number (000) 000-0000
with a copy to:
CDG (Park Place) LLC
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Mr. John X.X. Xxxxxxx
Facsimile Number: (000) 000-0000
and with a copy to:
Xxxxx X. Xxxxxx, P.A.
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
If to Purchaser:
Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Mr. G. Xxxxxx Xxxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
If to Escrow Agent:
Chicago Title Insurance Company
000 X. Xxxxx Xxxxxx
Division II Escrow
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Facsimile Number: (000) 000-0000
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23. ENTIRE AGREEMENT.
This Agreement contains all of the terms agreed upon between the
parties with respect to the subject matter hereof, and all agreements heretofore
had or made between the parties hereto are merged in this Agreement which alone
fully and completely expresses the agreement of said parties.
24. AMENDMENTS.
This Agreement may not be changed, modified or terminated, except
by an instrument executed by the parties hereto who are or will be affected by
the terms of such instrument.
25. NO WAIVER.
No waiver by either party of any failure or refusal to comply with
its obligations under this Agreement shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
26. SUCCESSORS AND ASSIGNS.
The provisions hereof shall inure to the benefit of, and shall be
binding upon, the heirs, executors, administrators, successors and assigns of
the respective parties, PROVIDED, HOWEVER, Purchaser may not assign this
Agreement or any of Purchaser's rights hereunder without the prior written
consent of Seller, PROVIDED, FURTHER, HOWEVER, Seller's consent shall not be
required with respect to an assignment of this Agreement by Purchaser to a
Permitted Assignee (as hereinafter defined), provided that (i) Purchaser
provides Seller with the name, signature block, address, federal taxpayer
identification number and other information pertaining to the proposed Permitted
Assignee reasonably requested by Seller not later than five (5) Business Days
prior to the Closing Date, (ii) such Permitted Assignee assumes all of the
obligations of Purchaser under this Agreement pursuant to an assignment and
assumption agreement in form reasonably acceptable to Seller, (iii) no
assignment of this Agreement to a Permitted Assignee (or in violation of this
Agreement) shall relieve Purchaser from any of its obligations hereunder, (iv)
no such assignment shall have the effect of delaying the Closing in any respect,
and (v) Purchaser and such Permitted Assignee shall be jointly, severally, fully
and completely liable for any and all State and local transfer taxes that may be
payable in connection with such assignment. A Change of Control (as hereinafter
defined) of Purchaser shall constitute an assignment of this Agreement for
purposes of this SECTION 26. As used herein, (x) a "PERMITTED ASSIGNEE" shall
mean a corporation, partnership or limited liability company that is controlled
by Purchaser or an affiliate of Purchaser or a real estate investment trust that
is sponsored by an affiliate of Purchaser, and (y) a "CHANGE OF CONTROL" shall
mean any direct or indirect change in the beneficial ownership or composition of
Purchaser that would cause Purchaser not to be a Permitted Assignee.
27. PARTIAL INVALIDITY.
If any term or provision of this Agreement or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term
or provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the fullest extent
permitted by law.
28. PARAGRAPH HEADINGS.
The headings of the various paragraphs of this Agreement have been
inserted only for the purposes of convenience, and are not part of this
Agreement and shall not be deemed in any manner to modify, explain or restrict
any of the provisions of this Agreement.
29. GOVERNING LAW.
This Agreement shall be governed by, and shall be interpreted,
construed and enforced in accordance with, the laws of the State of Texas
without regard to its rules regarding conflicts of law.
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30. BINDING EFFECT.
This Agreement does not constitute an offer to sell and shall not
bind Seller unless and until Seller, in its sole discretion, elects to be bound
hereby by executing and delivering to Purchaser an original counterpart hereof.
31. NO RECORDING OR LIS PENDENS.
The parties hereto agree that neither this Agreement nor any
memorandum of notice hereof shall be recorded, and Purchaser agrees not to file
any Lis Pendens or other instrument against the Shopping Center in connection
herewith; provided, however, notwithstanding the foregoing, solely in the event
Purchaser brings an action against Seller for specific performance, Purchaser
shall be permitted to file a Lis Pendens against the Shopping Center to preserve
its rights with respect to such action provided such action is commenced within
thirty (30) days of Purchaser's learning of such default by Seller and Purchaser
is not itself in default under this Agreement.
32. PREVAILING PARTY TO RECEIVE ATTORNEYS' FEES.
In the event of any litigation arising out of this Agreement, the
prevailing party shall be entitled to receive from the losing party an amount
equal to the prevailing party's costs incurred in such litigation, including,
without limitation, the prevailing party's reasonable attorneys' fees, costs and
disbursements.
33. TAX-FREE EXCHANGE.
In the event that Seller desires to effectuate the transaction
contemplated by this Agreement as a tax-free exchange, then upon request made by
Seller, Purchaser shall cooperate fully with Seller in effectuating such
tax-free exchange, such cooperation to include, without limitation, executing
and delivering all documents and instruments necessary, for such purpose,
provided that Seller shall reimburse Purchaser for any costs or expenses
incurred by Purchaser in connection with such cooperation; PROVIDED, HOWEVER,
that Purchaser's cooperation hereunder shall be without cost or expense to
Purchaser, Purchaser shall have no obligation to take legal or beneficial title
to any real property other than the Shopping Center, and Purchaser shall not be
required to make any warranties or representations regarding any replacement
property.
34. CONFIDENTIALITY.
Any documents, instruments, records or other information delivered
by Seller to Purchaser pursuant to the provisions of this Agreement shall be
deemed confidential information for purposes of such confidentiality agreement;
PROVIDED, HOWEVER, Purchaser may disclose such information to its attorneys,
lenders, agents, consultants or as otherwise required by law. Purchaser hereby
Indemnifies Seller (and each Seller Exculpated Party) from and against any and
all liabilities, damages, losses, costs or expenses (including, without
limitation, reasonable attorneys' fees and costs incurred in the enforcement of
the foregoing indemnification obligation) arising out of the breach by Purchaser
of any of its obligations under any such confidentiality agreement. The
provisions of this SECTION 34 shall survive the Closing or any earlier
termination of this Agreement.
35. DUE DILIGENCE PERIOD.
35.1 Purchaser has had, and shall have, the right to conduct a
due diligence review (the "DUE DILIGENCE REVIEW") of the Shopping Center during
the period (the "Due Diligence Period") beginning on the 1st day of July, 2003,
and ending at 5:00 P. M. Central Time on the first Business Day following the
date upon which this Agreement shall have been executed by the last of Seller
and Purchaser.
35.2 During the Due Diligence Period, and as part of the Due
Diligence Review, Purchaser and Purchaser's agents and representatives, shall
have the right, during normal business hours, at Purchaser's sole cost and
expense to enter upon the Shopping Center for the purpose of inspecting the
physical condition of the Shopping Center, testing machinery and equipment,
taking measurements, making surveys, and generally for the reasonable
ascertainment of the physical condition of the Shopping Center; provided,
however, that Purchaser shall (i) give Seller at least two (2) business days
prior written notice of the time and place of Purchaser's first such entry (and
shall make commercially reasonable efforts to coordinate with Seller's property
manager in connection with subsequent entries) and permit a representative of
Seller to accompany Purchaser during all such inspections, testing, etc.; (ii)
not be permitted to conduct any drilling or other invasive testing of the
Shopping Center without the prior written consent of Seller, which
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consent shall not be unreasonably withheld or delayed, (iii) not interfere with
the operations of the Shopping Center or any tenant thereof; (iv) restore any
damage to the Shopping Center and/or any adjacent property caused by such
actions; (v) indemnify, defend and save Seller and all other Seller Exculpated
Parties harmless of, from and against any and all damages, demands, claims
(including, without limitation, any claims by any tenant[s] of the Shopping
Center), losses, liabilities, costs (including the cost of remediation, if
necessary) and expenses (including, without limitation, reasonable attorneys'
fees and disbursements and costs paid and/or incurred in the enforcement of the
foregoing indemnity) paid and/or incurred by Seller and/or any Seller Exculpated
Party by reason of or in connection with any entry onto, or inspection of, the
Shopping Center by Purchaser or Purchaser's agents, employees, representatives
or contractors in connection therewith, which indemnity shall survive the sale
of the Shopping Center pursuant to the terms of this Agreement or, If such sale
is not consummated, the termination of this Agreement; (vi) prior to entry onto
the Shopping Center, furnish Seller with a certificate of general liability and
property damage insurance maintained by Purchaser with single occurrence
coverage of at least $2,000,000 and naming Seller and its property manager as
additional insureds; and (vii) not conduct any environmental Investigations or
testing other than a standard "Phase I" investigation without the prior written
consent of Seller, such consent not to be unreasonably withheld, delayed or
conditioned, and without prior execution of, and compliance with, Seller's form
of Environmental Access Agreement. All such inspection rights under this Section
35 shall be subject to the right of tenants under the Leases.
Without limiting the generality of the foregoing, it is
understood and agreed that if Purchaser shall desire to perform any invasive
testing, Purchaser shall notify Seller thereof not less than five (5) business
days prior to the proposed date of testing, such notice to set forth in detail
the tests proposed to be performed, the name of the contractor who will be
performing same, the date and time (which shall be between the hours of 8AM and
6PM, unless otherwise agreed by Seller) at which such tests are to be performed
and the steps proposed to be taken by Purchaser or its consultant to prevent
injury to persons and property in the conduct thereof. Seller shall have the
right to approve such testing (and the details associated therewith), such
approval not to be unreasonably withheld, delayed or conditioned. Seller shall
also have the right to be present during all such testing. Upon request by
Seller, one-half of any samples (e.g., soil borings, etc.) shall be furnished by
Purchaser to Seller. Purchaser shall be obligated to, and does hereby,
indemnify, defend and save and hold harmless Seller and each Seller Exculpated
Party of, from and against any and all loss, cost, expense (including reasonable
attorneys fees and court costs) and liability resulting from, or arising out of
any such testing, including, but not limited to, any and all losses, costs,
expenses, and/or liabilities resulting from personal Injury, property damage,
contamination or cross-contamination caused by and/or resulting from the conduct
of such testing.
35.3 Nothing contained in this Agreement shall be deemed or
construed in any way as constituting the consent or request of Seller, express
or implied by inference or otherwise, to any party for the performance of any
labor or the furnishing of any materials to the Shopping Center or any part
thereof, nor as giving Purchaser any right, power or authority to contract for
or permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any liens against the Shopping Center or any
part thereof. Purchaser agrees to promptly cause the removal of, and indemnify,
defend, and hold Seller harmless with respect to, any mechanic's or similar
liens filed against the Shopping Center or any part thereof by any party
performing labor or services at the Shopping Center or supplying any materials
to the Shopping Center at the request of Purchaser or any of Purchaser's agents,
employees, representatives or contractors.
35.4. Not later than five (5) days following the date upon which
this Agreement shall have been duly executed by the last of Seller and
Purchaser, subject to Section 34, Seller shall furnish or make available to
Purchaser the following:
(a) Copies of any plans, specifications and/or site
plans of the Shopping Center, to the extent currently in Seller's possession or
reasonable control;
(b) The current and historical books and records
(including all files located in the property manager's office at the Shopping
Center, but excluding, however, internal memoranda, financial projections,
appraisals and projected budgets) and other operating and maintenance documents
and information, in each case customarily prepared by Seller or by Seller's
property manager at Seller's request, or customarily maintained by Seller's or
Seller's property manager, with respect to the Shopping Center, including,
without limitation, all records of income, expense, capital expenditures,
utility bills, and the most recent property tax xxxx, and operating statements
for the Shopping Center for calendar years 2001, 2002 and 2003 year to date;
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(c) Copies of the Leases, the Service Contracts, and any
other occupancy agreements currently in force with respect to the Shopping
Center, if any;
(d) Copies of the Permits, if any, to the extent
currently in Seller's possession or reasonable control;
(e) Copies of any warranties pertaining to the Shopping
Center or any equipment therein, if any, to the extent currently in Seller's
possession or reasonable control;
(f) A copy of the existing survey of the Shopping
Center;
(g) A copy of all pleadings, discovery materials, etc.
relating to the litigation referred to on Exhibit "N" hereto;
(h) A copy of the most recent Phase I environmental
audit report as to the Shopping Center in Seller's possession; and
(i) A copy of any and all current tenant insurance
certificates in Seller's possession.
NO WARRANTY, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, IF AT ALL, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF THE DELIVERED
MATERIALS, OTHER THAN THAT SELLER HAS NO ACTUAL KNOWLEDGE THAT ANY OF SUCH
MATERIALS WAS FALSE, INACCURATE OR INCOMPLETE IN ANY MATERIAL RESPECT WHEN
PREPARED.
35.5 On or before the expiration of the Due Diligence Period,
Purchaser shall deliver written notice (the "Diligence Notice") to Seller
stating either:
(a) That Purchaser elects to terminate this Agreement,
in which event this Agreement shall terminate and the Escrow Agent shall take
such actions with respect to the Downpayment as are set forth in SECTION 9,
whereupon neither party shall have any further rights or obligations under this
Agreement except that the provisions of SECTIONS 13, 31, 32, 34, 35.2 and 35.3
shall survive; or
(b) That Purchaser elects not to terminate this
Agreement, in which event Purchaser shall thereupon be deemed to have waived any
right to terminate this Agreement pursuant to the provisions of this SECTION 35,
this Agreement shall continue in full force and effect in accordance with its
terms, Purchaser shall be required to post the Additional Deposit in accordance
with SECTION 2.2 above, and the Deposit shall thereupon become nonrefundable
unless Purchaser terminates this Agreement in accordance with the provisions of
SECTIONS 5, 8, 11, 14, 20 or 36.
The failure of Purchaser to deliver any Diligence Notice to Seller
during the Due Diligence Period as provided for in this SECTION 35 shall be
deemed to be the delivery of a Diligence Notice by Purchaser under SECTION
35.5(b) above on the last day of the Due Diligence Period. Time shall be of the
essence with respect to Purchaser's right and obligation to deliver the
Diligence Notice.
35.6 The provisions of this Section 35 shall survive the
termination of this Agreement and/or the Closing and delivery of the Deed.
36. ESTOPPEL CERTIFICATES.
36.1. During the period commencing on the date hereof and ending
on the Closing Date, Seller shall exercise reasonable efforts to obtain an
estoppel certificate (each, a "TENANT ESTOPPEL CERTIFICATE") from each tenant
under a Lease as of the Closing Date (any space demised to a tenant under a
Lease as of the Closing Date being referred to as "DEMISED SPACE").
36.2. As a condition precedent (the "ESTOPPEL CONDITION") to
Purchaser's obligation to acquire the Shopping Center, Seller shall deliver to
Purchaser not later than five (5) days prior to the Closing Date, the following
estoppel certificates (the "REQUIRED ESTOPPEL CERTIFICATES"): (i) Tenant
Estoppel Certificates from the tenants listed on
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EXHIBIT "O", (ii) Tenant Estoppel Certificates from eighty percent (80%), by
number, of the tenants who occupy the balance of the leasable space in the
Shopping Center that is occupied by tenants as of the Closing Date; and (iii)
Seller's own estoppel certificate (each, a "SELLER ESTOPPEL CERTIFICATE") in the
form attached hereto as EXHIBIT "P" on behalf of all other tenants who occupy
leasable space in the Shopping Center as of the Closing Date.
In the event that either (1) Seller is unable to satisfy
the Estoppel Condition or (2) a Required Estoppel Certificate discloses an
Adverse Estoppel Matter (as hereinafter defined), then Purchaser shall have the
right, as its sole remedy (Purchaser specifically waiving any right to bring an
action against Seller for damages), either to (x) terminate this Agreement by
notice in writing to Seller, in which event Seller shall cause the Escrow Agent
to take such actions with respect to the Downpayment as are set forth in SECTION
9, whereupon neither party shall have any further rights or obligations
hereunder except that the obligations of the parties under SECTIONS 13, 31, 32,
34, 35.2 and 35.3 shall survive or (y) waive the same and accept title to the
Shopping Center without any abatement of the Purchase Price. Purchaser
specifically acknowledges and agrees that the failure of Seller to deliver
Tenant Estoppel Certificates or the existence of adverse matters disclosed in
Tenant Estoppel Certificates or Seller Estoppel Certificates shall not give rise
to any remedy of any kind against Seller (other than the termination right in
accordance with and subject to the provisions of this SECTION 36.2). For
purposes of this SECTION 36, "ADVERSE ESTOPPEL MATTER" shall mean (i) a monetary
default under such tenant's Lease or (ii) an adverse discrepancy between the
annual rent set forth in the Required Estoppel Certificate and the annual rent
set forth in the Rent Roll or (iii) an adverse discrepancy between the
representations set forth in Section 1 of EXHIBIT "Q" and the respective terms
of such tenant's lease; or (iv) the certifications in Section 2 of EXHIBIT "Q"
are not true and correct, provided, however, that if any Estoppel Certificate
indicates that the certification in Subsection 2f of Exhibit "Q" is not correct,
the provisions of Section 36.3(v) below shall apply.
36.3. For purposes of this SECTION 36, Seller and Purchaser agree
that the following shall apply:
(i) Seller shall request Tenant Estoppel Certificates
from the tenants in the form attached hereto as EXHIBIT "Q" and the delivery of
a certificate from a tenant in such form shall be deemed to be the delivery of a
Tenant Estoppel Certificate from such tenant for purposes of SECTION 36.2,
PROVIDED, HOWEVER, if the tenant fails or refuses to deliver a certificate in
the form of EXHIBIT "Q", then the delivery of an estoppel certificate by such
tenant that substantially complies with the estoppel requirements in such
tenant's Lease shall be deemed to be the delivery of a Tenant Estoppel
Certificate from such tenant for purposes of SECTION 36.2 (it being acknowledged
that if a Lease provides for a Tenant Estoppel Certificate containing certain
specified items and such other items as landlord may "reasonably require", then
the delivery by the tenant thereunder of an estoppel certificate without any
Items other than the specified items shall be deemed to be the delivery of an
estoppel certificate by such tenant in compliance with the terms of such Lease).
(ii) In order to be treated as a delivered Tenant
Estoppel Certificate for purposes of SECTION 36.2, the certificate delivered by
a tenant shall be dated no earlier than the date of this Agreement.
(iii) The Seller Estoppel Certificates shall (a) be in the
form of EXHIBIT "P", (b) be dated the not earlier that the 3rd day before the
Closing Date, and (c) survive the Closing for a period of one hundred eighty
(180) days (the "ESTOPPEL SURVIVAL PERIOD").
(iv) A Tenant Estoppel Certificate or a Seller Estoppel
Certificate that discloses defaults by the tenant under the applicable Lease
(including, for example, a statement that the tenant is in default and/or in
bankruptcy and as a result has not paid rent for an extended period of time)
shall nonetheless be deemed to be the delivery of a Tenant Estoppel Certificate
or Seller Estoppel Certificates for purposes of SECTION 36.2 and no such
delivery of a Tenant Estoppel Certificate or Seller Estoppel Certificate shall
entitle Purchaser to any remedy against Seller, it being acknowledged that for
all purposes of this Agreement the risk of tenant defaults occurring following
the expiration of the Due Diligence Period is solely that of Purchaser,
PROVIDED, HOWEVER, if a Tenant Estoppel Certificate discloses that Seller's
Representations contained in SECTION 11.1(iii) as to the accuracy, in all
material respects, of the Rent Roll are untrue in a material respect, same shall
nonetheless be deemed to be the delivery of a Tenant Estoppel Certificate for
purposes of SECTION 36.2, however, such delivery shall not operate to waive any
of Purchaser's rights, or relieve Seller from any of its obligations, in the
event a Seller Representation is untrue in a material respect, and the
provisions of SECTION 11.3 shall apply.
(v) If a Tenant Estoppel Certificate delivered by a
tenant discloses a default by Seller under such tenant's Lease (including,
without limitation, a matter covered by CLAUSES 2c, 2f OR 2q of the form of
Tenant
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Estoppel Certificate provided in EXHIBIT "Q"), then Seller shall either (x) cure
such default prior to Closing (and Seller shall be entitled to adjourn the
Closing for up to sixty (60) days to effectuate such cure), (y) grant Purchaser
a credit against the Purchase Price in the amount reasonably necessary to
effectuate such cure, as set forth in an cost estimate obtained by Seller from
an unrelated licensed contractor, or (z) notify Purchaser that Seller does not
intend to cure such default or grant Purchaser such credit against the Purchase
Price, PROVIDED, HOWEVER, if the total cost to cure a default referenced in a
Tenant Estoppel Certificate (when aggregated with costs to cure defaults under
all other Tenant Estoppel Certificates) is less than $50,000, then Seller shall
not act under CLAUSE (z).
(A) If Seller acts under CLAUSE (x) above, then
Seller shall exercise reasonable efforts to cure the default prior to Closing,
provided that if Seller is unable (despite the exercise of reasonable efforts)
to cause such default to be corrected at or before Closing, then Purchaser's
sole remedy shall be to terminate this Agreement in which event Seller shall
cause the Escrow Agent to take the actions required to be taken in respect of
the Downpayment pursuant to SECTION 9, whereupon neither party shall have any
further rights or obligations hereunder except that the obligations of the
parties under SECTIONS 13, 31, 32, 34, 35.2 and 35.3 shall survive such
termination.
(B) If Seller acts under CLAUSE (y) above, then
Seller will grant Purchaser the credit at Closing required above.
(C) If Seller acts under CLAUSE (z) above, then
Purchaser shall, on or before the earlier of three (3) days after Purchaser
receives notice from Seller pursuant to such CLAUSE (z) or one (1) Business Day
prior to the Closing, deliver notice to Seller stating either (a) that Purchaser
elects to proceed to the Closing without abatement of the Purchase Price and
without further obligation of Seller in respect of such Tenant Estoppel
Certificate or (b) that Purchaser elects to terminate this Agreement, in which
event Seller and Purchaser shall direct the Escrow Agent to return the
Downpayment to Purchaser, and neither party shall have any further obligation
under this Agreement, except that the obligations of the parties under SECTIONS
13, 31, 32, 34, 35.2 and 35.3 shall survive such termination. Purchaser's
failure to deliver the notice referred to in the preceding sentence within the
time period mentioned above shall be deemed to be Purchaser's election under
CLAUSE (b) of the preceding sentence.
36.4. In the event that one or more Seller Estoppel Certificates
is delivered by Seller pursuant to the provisions of this SECTION 36, then the
following shall apply:
(i) In the event that Purchaser discovers after the
Closing Date but prior to the expiration of the Estoppel Survival Period that a
statement of Seller set forth in a Seller Estoppel Certificate is false in a
material respect as of the date made, then Purchaser shall have the right to
make a claim (an "ESTOPPEL CLAIM") against Seller for an amount equal to the
damages caused to Purchaser as a result of such false statement. In order to
properly assert an Estoppel Claim against Seller, Purchaser shall be required to
deliver written notice (an "ESTOPPEL CLAIM NOTICE") of such Estoppel Claim
(stating in reasonable detail the basis for the Estoppel Claim) to Seller. In
the event that Purchaser has not delivered an Estoppel Claim Notice by the
expiration of the Estoppel Survival Period, then Purchaser shall be conclusively
deemed to have waived any right to assert an Estoppel Claim.
(ii) If Purchaser delivers an Estoppel Claim Notice prior
to the end of the Estoppel Survival Period, then Seller shall within fifteen
(15) days after Seller receives the Estoppel Claim Notice, deliver notice (an
"ESTOPPEL RESPONSE NOTICE") to Purchaser stating either (x) that Seller agrees
with the Estoppel Claim made by Purchaser, in which event Seller shall reimburse
Purchaser for the amount equal to the damages caused to Purchaser as asserted in
the Estoppel Claim or (y) Seller disputes the Estoppel Claim made by Purchaser,
in which event Purchaser shall have the right to make a claim against Seller for
an amount equal to the damages caused to Purchaser as asserted in the Estoppel
Claim, provided that in no event shall Purchaser have any right to recover
speculative, consequential or punitive damages against Seller, all of which are
expressly hereby waived by Purchaser.
(iii) If subsequent to the delivery of a Seller Estoppel
Certificate with respect to space occupied by a tenant, Seller delivers the
applicable Tenant Estoppel Certificate from such tenant and such Tenant Estoppel
Certificate confirms the information provided in such Seller Estoppel
Certificate, then the Seller Estoppel Certificate will be without further force
or effect and Purchaser shall rely solely upon the applicable Tenant Estoppel
Certificate.
- 27 -
37. SURVIVAL.
Except otherwise specifically herein provided, no representation,
warranty, covenant or obligation of Seller set forth in this Agreement or any
document or instrument delivered by Seller in connection herewith, including,
without limitation, the Assignment and Assumption of Leases, the Assignment and
Assumption of Service Contracts or any Seller Estoppel Certificate, shall
survive the Closing and the delivery of the Deed. In addition, any
indemnification or other obligation of Seller that is stated in this Agreement
or any document or instrument delivered by Seller in connection herewith,
including, without limitation, the Assignment and Assumption of Leases and the
Assignment, Assumption of Service Contracts or any Seller Estoppel Certificate
to survive the Closing and the delivery of the deed shall survive the Closing
for a period of one hundred eighty (180) days. Notwithstanding the foregoing,
except as otherwise specifically herein provided, any indemnification or other
obligation of Purchaser set forth in this Agreement or any other such document
shall survive the Closing Indefinitely.
38. [INTENTIONALLY DELETED]
39. SUBMISSION TO JURISDICTION.
PURCHASER AND SELLER HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF ANY TEXAS STATE OR FEDERAL COURT SITTING IN COLLIN COUNTY OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. PURCHASER AND
SELLER EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO SUCH VENUE AS BEING AN
INCONVENIENT FORUM.
40. WAIVER OF JURY TRIAL.
PURCHASER AND SELLER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS AGREEMENT OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY PURCHASER AND SELLER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. SELLER OR PURCHASER, AS APPLICABLE, IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY PURCHASER OR SELLER, AS APPLICABLE.
41. DEFINITION OF BUSINESS DAY.
As used herein, the term "BUSINESS DAY" shall mean any day other
than (i) a Saturday or a Sunday, (ii) a national holiday, or (iii) a day on
which banks are not required to be open for business within the State of Texas.
42. TIME FOR ACCEPTANCE.
At Purchaser's option, this Agreement shall be null and void and
of no further force and effect unless a copy of same executed by Seller shall be
delivered to Purchaser not later than 5:00 PM Central Time on the third Business
Day following the date of execution and delivery of same by Purchaser to Seller.
Upon any such termination, Purchaser's Initial Deposit (if theretofore posted by
Purchaser) shall be promptly refunded.
43. NO REA DEFAULT.
Anything in this Agreement to the contrary notwithstanding, it
shall be a condition of Closing and of Purchaser's obligation to perform under
this Agreement that there shall not be any default under the terms of the REA on
- 28 -
the Closing Date. This condition shall be deemed satisfied upon the earlier of
the Closing hereunder, or the date upon which Walgreen shall issue an "REA
Estoppel Certificate" as previously requested by Purchaser.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
Signed, Sealed and Delivered in the SELLER:
presence of:
CDG (Park Place) LLC, a Texas
limited liability company
/s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxxxx 9/5/03
---------------------------------- -------------------------------
/s/ [ILLEGIBLE] Name: Xxxxx Xxxxxx
---------------------------------- -----------------------------
Title: Manager
/s/ [ILLEGIBLE] By: /s/ Xxx Xxxxxxxx
---------------------------------- -------------------------------
/s/ [ILLEGIBLE] Name: Xxx Xxxxxxxx
---------------------------------- -----------------------------
Title: Manager
PURCHASER:
Inland Real Estate Acquisitions, Inc.
/s/ Xxxxxxxx X. Xxxxxxxx By: /s/ [ILLEGIBLE]
---------------------------------- -------------------------------
/s/ [ILLEGIBLE] Name:
---------------------------------- Title:
Federal I.D. No. [00-0000000]
The undersigned has executed this Agreement solely to confirm its
acceptance of the duties of the Escrow Agent and receipt of the Initial Deposit
as set forth in SECTION 15 hereof.
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: ASST. V.P.
- 29 -
EXHIBITS
Exhibit Description
------- -----------
A Description of the Lands
B [Reserved]
C [Reserved]
D Rent Rolls (Including Special Commissions)
E Existing Service Contracts and Service Contracts that Must Be Assumed by Purchaser
F Existing Violations
G Deed
H Xxxx of Sale
I Assignment and Assumption of Leases
J Assignment and Assumption of Service Contracts
K Notice to Tenants
L Assignment and Assumption of Intangible Property
M Environmental Reports
N Existing Litigation
O Tenants from Whom Estoppel Certificates are Required
P Form of Seller Estoppel Certificate
Q Form of Tenant Estoppel Certificate
R Title and Survey Comments Letter
- 30 -
EXHIBIT "A"
DESCRIPTION OF THE LAND
- 31 -
Legal description of the land:
TRACT 1:
Xxx 0, Xxxxx X, xx Xxxx Xxxxx Xxxxxx, Xxxxx "A", Lot 1, an addition to the City
of Plano, Collin County, Texas, according to the plat thereof recorded in
Cabinet N, Slide 233, Plat Records, Collin County, Texas.
TRACT 2:
Xxx 0, Xxxxx X, xx Xxxx Xxxxx Xxxxxx, Xxxxx A, Lots 1 and 2, an addition to the
City of Plano, Collin County, Texas, according to the plat thereof recorded in
Cabinet M, Slide 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT 3:
Xxx 0, Xxxxx X, xx Xxxx Xxxxx Xxxxxx, Xxxxx A, Lot 3, an addition to the City of
Plano, Collin County, Texas, according to the plat thereof recorded in Cabinet
M, Slide 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT 4:
Xxx 0, Xxxxx X, xx Xxxx Xxxxx Xxxxxx, Xxxxx A, Lot 4, an addition to the City of
Plano, Collin County, Texas, according to the plat thereof recorded in Cabinet
M, Slide 437, Plat Records, Collin County, Texas.
EXHIBIT "B"
RESERVED
- 32 -
EXHIBIT "C"
[RESERVED]
- 33 -
EXHIBIT "D"
RENT ROLL (INCLUDING SPECIAL LEASING COMMISSIONS)
Special Leasing Commissions: Seller's brokerage agreement with Weitzman Group
(copy attached) relating to the lease between Seller and Xxxx Xxxxxxxx, a tenant
of the Shopping Center, may required the payment of an additional leasing
commission in the event that (a) Xxxx Xxxxxxxx shall expand its premises to
encompass additional space in the Shopping Center, and (b) Weitzman Group
"provides a service of negotiating the terms of the expansion". Such commission,
if any, to be prorated to take into account portion of Initial lease term
expired as of date of expansion.
- 34 -
7/25/03 Proted Real Estate 12:24 pm
User: XXX Rent Roll Page: 1
Property : CDG (PARK PLACE) L.L.C.
Rent Per Rent Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Feet Date Date Held
--------- ------------------------------ --------- -------- ----------- ----------- ----------- ----------
033-100 OMAR INVESTMENTS, INC. A TEXAS 7,883.33 3500 26.00/yr 11/23/01 11/30/0? 9,245.83
2.17/mth
033-104 PHI BANC AND NGA DAM 2,750.00 1100 30.00/yr 10/19/01 10/31/06 2,750.00
3.50/mth
033-105 XXXXXXXXX XXXXXXXXX 2,100.00 840 30.00/yr 11/01/01 10/31/06 8,000.00
2.50/mth
033-106 XXXXX XXX(1) 2,432.50 1042.5 28.00/yr 11/01/01 10/31/06 2,800.00
2.33/mth
033-112 XXXX XXXXXXXX PROPERTIES, INC. 12,840.96 5313.5 29.00/yr 11/01/01 10/31/06 15,000.00
2.42/mth
033-119 WSK EYE ASSOCIATES 7,800.00 3000 30.00/yr 10/15/01 10/31/06 8,687.50
2.50/mth
033-120 OFFICEMAX. INC.(3) 26,357.63 23?2? 23.50/yr 11/25/01 11/30/16 0.00
1.23/mth
033-125 BED BATH & BEYOND, INC. 22,916.67 25000 21.00/yr 10/06/01 1/11/12 0.00
0.92/mth
033-130 MICHAELS STORES, INC. 27,145.63 24133 13.50/yr 10/04/01 10/11/11 0.00
1.13/mth
033-135 SALON BOUTIQUE LLP 15,000.00 10000 15.00/yr 2/14/02 2/28/12 15,833.33
1.50/mth
033-4601 CHICK-FIL-A, INC.(2) 6,541.67 0 0.00/yr 10/16/00 10/31/15 0.00
0.00/mth
033-6301 WALGREEN COMPANY 26,250.00 15120 20.83/yr 12/06/00 12/31/60 0.00
1.74/mth
PROPERTY TOTALS:
Total Occupied Rents 159,422,39
Total Vacant Rents 0.00
Total Gross Rents 159,422.39
Total Square Footage 1124.78
Average Rent/Sq. Ft. /Yr. 17.01
Average Rent/Sq. Ft. /Mth 1.42
Total Security Deposits 62,316.66
--- Percentage of Occupied Units ---
Total Occupied Units 12
Total Vacant Units 0
Total Units 12
Percentage Occupied 100%
--- Percentage of Occupied Sq. Feet ---
Total Occupied Sq. Feet 112478
Total Vacant Sq. Feet 0
Total Square Footage 112478
Percentage Occupied 100%
(1) 11/01/04 MONTHLY RENT INCREASES TO $2,606.25
(2) 11/01/05 MONTHLY RENT INCREASES TO $7,326.67
11/01/10 MONTHLY RENT INCREASES TO $8,205.87
(3) 12/01/11 MONTHLY RENT INCREASES TO $27,333.83
EXHIBIT "E"
EXISTING SERVICE CONTRACTS
PART 2
SERVICE CONTRACTS THAT MUST BE ASSUMED BY PURCHASER
Trinity Waste Service (current monthly fee approximately $625.00)
Knight Security Systems (current monthly monitoring fee approximately $58.00)
- 35 -
Trinity Waste Services
Landscape Professionals of Texas
B.T.A. Services, Ltd.
Knight Security Systems, Inc.
Shepherd Pest Management
Citywide - (power wash)
EXHIBIT "F"
EXISING VIOLATIONS
none
- 36 -
EXHIBIT "G"
DEED
Mailing Address of Grantee:
______________________________
__________________________
__________________________
SPECIAL WARRANTY DEED
THE STATE OF TEXAS )(
)( KNOW ALL PERSON BY THESE PRESENTS:
COUNTY OF DALLAS )(
THAT, _______________________, a ___________________ corporation,
(hereinafter referred to as "Grantor"), for and in consideration of the sum of
Ten and No/100 Dollars ($10.00) and other valuable consideration, the receipt
and sufficiency of which consideration are hereby acknowledged, has GRANTED,
SOLD and CONVEYED and by these presents does GRANT, SELL and CONVEY
unto _________________________________________________, (hereinafter referred to
as "Grantee"), whose mailing address is _______________________________________,
_____________, _________, the following described property, to-wit:
that certain parcel of real property described on Exhibit "A" attached
hereto and made a part hereof for all purposes, together with all of the
easements, rights-of-way, privileges, liberties, hereditaments, strips
and gores, streets, alleys, passages, ways, waters, water courses, rights
and appurtenances thereto belonging or appertaining, and all of the
estate, right, title, interest, claims or demands whatsoever of Grantor
therein and the streets and ways adjacent thereto, either in law or in
equity; subject, however, to all encumbrances, reservations and
exceptions now of record.
TO HAVE AND TO HOLD the above described premises, together with any and
all the rights and appurtenances thereto in anywise belonging to Grantor, unto
the said Grantees, their successors, legal representatives and assigns FOREVER,
and Grantor does hereby bind itself and its legal representatives and successors
to WARRANT AND FOREVER DEFEND all and singular the said premises unto the said
Grantee, its successors, legal representatives and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under it, but not otherwise.
EXECUTED the _____ day of ___________________, 2003.
-------------------------------------
a ____________ corporation
By:
----------------------------------
Its:
---------------------------------
- 37 -
THE STATE OF TEXAS )(
)(
COUNTY OF DALLAS )(
This instrument was acknowledged before me on the ______ day of
________________, 1992 by ______________________________.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______ day of ______________,
1992.
------------------------------
Notary Public in and for the
State of Texas
Notary's printed name:
------------------------------
My Commission Expires:
---------------------
- 38 -
EXHIBIT "H"
XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the undersigned, CDG (Park Place) LLC, a limited
liability company organized under the laws of the State of ___________________
(the "Seller"), does hereby quitclaim unto [_________________], a
[_________________] organized under the laws of the State of
[__________________] (the "Purchaser"), all of Seller's right, title and
interest in and to all equipment, appliances, tools, machinery, supplies,
building materials and other personal property of every kind and character
described on Schedule 1 attached hereto (the "Personalty") and located on and
used in connection with the real property described in Schedule 2 attached
hereto. The conveyance contained in this Xxxx of Sale is made without
representation or warranty by the Seller of any kind or nature and is expressly
without recourse to the Seller of any kind or nature whatsoever.
IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, SELLER MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, TITLE, MARKETABILITY,
FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PERSONALTY, AND THE
PERSONALTY IS SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS. BY
ACCEPTANCE OF THIS XXXX OF SALE, PURCHASER AFFIRMS AND AGREES THAT (A) PURCHASER
HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PERSONALTY
FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE PERSONALTY IS
FIT FOR ANY PARTICULAR PURPOSE AND (C) THERE ARE NO REPRESENTATIONS OR
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PERSONALTY.
PURCHASER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PERSONALTY AND HAS
DETERMINED TO PURCHASE THE PERSONALTY BASED ON SUCH INSPECTION.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this instrument as of this [________] day of [________________], 2003.
SELLER:
[_____________________________]
By:
------------------------------
Name:
Title:
PURCHASER:
[________________________]
By:
------------------------------
Name:
Title:
- 39 -
Schedule 1
Schedule of Personalty
All equipment, appliances, tools, machinery, supplies, building
materials and other personal property of every kind and character owned by
Seller and located on and used in connection with that certain land (the "Land")
and the improvements located thereon located in the county of [_______________],
State of [______________], which Land is more particularly described in Schedule
2 attached to the Xxxx of Sale to which this Schedule 1 is attached.
- 40 -
Schedule 2
Legal Description of the Land
- 41 -
EXHIBIT "I"
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment"), made as of
the [______] day of [_________________], 2003, by and between [_______________],
a [_____________] organized under the laws of the State of [_______________],
having an office at c/o [_______________________________________] ("Assignor"),
and [______________], a [______________] organized under the laws of the State
of [__________________], having an office [____________________] ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor is the landlord under the leases set forth on Schedule
A attached hereto and made a part hereof (the "Leases"), pursuant to which
Leases, Assignor has demised to the tenants thereunder certain premises located
at [________________], and more particularly described in Schedule B attached
hereto (the "Premises");
WHEREAS, Assignor and Assignee are parties to that certain
Sale-Purchase
Agreement, dated as of [_____________], 2003, (as amended, the "Agreement"),
pursuant to which Agreement, Assignor has agreed to sell to Assignee, and
Assignee has agreed to purchase from Assignor, the Premises; and
WHEREAS, in connection with the Agreement (i) Assignor is required to
assign, transfer and convey to Assignee all of Assignor's right, title and
interest in, to and under the Leases, together with any and all right, title,
estate and interest of Assignor in and to such security deposits and prepaid
rents, if any, as have been paid to Assignor pursuant to such Leases,
(collectively, the "Security Deposits") and (ii) Assignee is required to accept
such assignment and to assume Assignor's obligations under the Leases and the
Security Deposits from and after the date hereof.
NOW, THEREFORE, in consideration of the sum of Ten and 00/100 Dollars
($10.00) and other good and valuable consideration, the mutual receipt and
sufficiency of which are hereby acknowledged, the parties hereto to hereby agree
as follows:
1. Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Agreement.
2. Subject to the terms of the Agreement, Assignor hereby assigns,
transfers, releases and sets over unto Assignee all of the right, title and
interest of Assignor in and to (i) the Leases, and (ii) the Security Deposits.
3. Assignee hereby accepts the foregoing assignment and hereby assumes
(a) all of the obligations of Assignor under the Leases from and after the
Closing Date and (b) all obligations of Assignor with respect to the Security
Deposits, including, without limitation, the obligation to return same to the
tenants under the Leases in accordance with the terms of such Leases.
4. Assignor hereby indemnifies and holds Assignee harmless from and
against any and all claims, expenses, costs, obligations or other liabilities
with respect to the Leases and the Security Deposits, arising or incurred after
the date hereof with respect to events occurring prior to the date hereof. The
foregoing indemnification obligation shall survive the delivery of this
instrument for a period of one hundred eighty (180) days and any claim not made
within such one hundred eighty (180) day period shall be deemed waived by
Assignee.
5. Assignee hereby indemnifies and holds Assignor harmless from and
against any and all claims, expenses, costs, obligations, or other liabilities
with respect to the Leases and the Security Deposits, arising or incurred after
the date hereof with respect to events occurring after the date hereof.
6. This Assignment may not be amended, modified or terminated except by
an instrument in writing executed by the parties hereto.
7. This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
- 42 -
8. This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together hall constitute one and
the same instrument.
9. The provisions hereof are subject to the provisions of Section 19 of
the Agreement.
IN WITNESS WHEREOF, intending to be legally bound the parties hereto have
executed this Assignment as of the day and year first above written.
ASSIGNOR:
[___________________________]
By: [___________________________]
By:
---------------------------
Name:
Title:
ASSIGNEE:
[___________________________]
By: [__________________]
By:
---------------------------
Name:
Title:
- 43 -
Schedule A
Leases
- 44 -
Schedule B
Legal Description of the Land
- 45 -
EXHIBIT "J"
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this" Assignment"),
is made as of the [______] day of [_____], 2003, by and between [_____________],
a [__________________] organized under the laws of the State of [_____________],
having an office at [________________________________] ("Assignor"), and
[________________________________], a [________________] organized under the
laws of the State of [_________________], having an office at [________________]
("Assignee")
W I T N E S S E T H
WHEREAS, Assignor has entered into those certain service contracts set
forth on Schedule A attached hereto and made a part hereof (the "Service
Contracts"), in connection with certain real property located in
[______________________], and more particularly described on Schedule B attached
hereto (the "Premises")
WHEREAS, Assignor and Assignee are parties to that certain
Sale-Purchase
Agreement, dated as of [______________], 2003 (as amended, the "Agreement"),
pursuant to which Agreement, Assignor has agreed to sell to Assignee, and
Assignee has agreed to purchase from Assignor, the Premises; and
WHEREAS, in connection with the Agreement, Assignor is required to
assign, transfer and convey to Assignee all of Assignor's right, title and
interest in, to and under the Service Contracts and Assignee is required to
accept such assignment and to assume Assignor's obligations under the Service
Contracts from and after the date hereof.
NOW, THEREFORE, in consideration of the sum of Ten and 00/100 Dollars
($10.00) and other good and valuable consideration, the mutual receipt and
sufficiency of which are hereby acknowledged, the parties hereto to hereby agree
as follows:
1. Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Agreement.
2. Assignor hereby assigns, transfers, releases and sets over unto
Assignee all of the right, title and interest of Assignor in and to the Service
Contracts.
3. Assignee hereby accepts the foregoing assignment and hereby assumes
all of the obligations of Assignor under the Service Contracts from, after and
including the Closing Date.
4. Assignor hereby indemnifies and holds Assignee harmless from and
against any and all claims, expenses, costs, obligations or other liabilities
with respect to the Service Contracts arising or incurred after the date hereof
with respect to events occurring prior to the date hereof. The foregoing
indemnification obligation shall survive the delivery of this instrument for a
period of one hundred eighty (180) days and any claim not made within such one
hundred eighty (180) day period shall be deemed waived by Assignee.
5. Assignee hereby indemnifies and holds Assignor harmless from and
against any and all claims, expenses, costs, obligations, or other liabilities
with respect to the Service Contracts arising or incurred after the date hereof
with respect to events occurring after the date hereof.
6. This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
7. This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one and
the same instrument.
8. The provisions hereof are subject to the provisions of Section 19 of
the Agreement.
- 46 -
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have executed this Assignment as of the day and year first above written.
ASSIGNOR:
[___________________________]
By: [___________________________]
By:
---------------------------
Name:
Title:
ASSIGNEE:
[___________________________]
By: [_______________________]
By:
---------------------------
Name:
Title:
- 47 -
Schedule A
Service Contracts
- 48 -
Schedule B
Legal Description of the Land
- 49 -
EXHIBIT "K"
NOTICE TO TENANTS
To Be Delivered to Seller by Purchaser at Closing
- 50 -
EXHIBIT "L"
ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLE PROPERTY (this
"Assignment"), is made as of the [______] day of [_____], 2003, by and between
[________________], a [______________________] organized under the laws of the
State of _____________ having an office [_________________] ("Assignor"), and
[________________], a [_________________] organized under the laws of the State
of Delaware, having an office c[_____________] ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor and Assignee are parties to that certain
Sale-Purchase
Agreement, dated as of [___________] [____], 2003 (as amended, the "Purchase
Agreement"), pursuant to which Purchase Agreement, Assignor has agreed to sell
to Assignee, and Assignee has agreed to purchase from Assignor, that certain
real property located at [________________] and more particularly described on
Schedule A attached hereto (the "Premises"); and
WHEREAS, in connection with the Purchase Agreement, Assignor is required
to assign, transfer and convey to Assignee all of Assignor's right, title and
interest in, to and under, to the extent assignable and subject to the terms of
the Purchase Agreement, any and all contracts, rights, warranties and
guaranties, and trade names related to the Premises (collectively, the
"Intangible Property"), including, without limitation, that certain Intangible
Property identified in Schedule B attached hereto and made a part hereof, and
Assignee is required to accept such assignment and to assume Assignor's
obligations under the Intangible Property, from and after the Closing Date.
NOW, THEREFORE, in consideration of the sum of Ten and 00/100 Dollars
($10.00) and other good and valuable consideration, the mutual receipt and
sufficiency of which are hereby acknowledged, the parties hereto to hereby agree
as follows:
1. Unless otherwise stated herein, all capitalized terms used in this
Assignment shall have the meanings specified in the Purchase Agreement.
2. Assignor hereby assigns, transfers, releases and sets over unto
Assignee all of the right, title and interest of Assignor in and to the
Intangible Property to the extent assignable and subject to the terms of the
Purchase Agreement.
3. Subject to the terms of the Purchase Agreement, Assignee hereby
accepts the foregoing assignment and hereby assumes all of the obligations of
Assignor under the Intangible Property from, after and including the Closing
Date.
4. This Assignment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
5. This Assignment may be executed in counterparts, each of which shall
constitute an original, and all of which taken together shall constitute one and
the same instrument.
6. Assignor and Assignee hereby agree that they will, at any time and
from time to time, execute any documents and take such additional actions as
Assignor or Assignee or their respective successors or assigns shall reasonably
require in order to more completely or perfectly carry out the transfers
intended to be accomplished hereby.
7. The provisions hereof are subject to the provisions of Section 19 of
the Purchase Agreement.
- 51 -
IN WITNESS WHEREOF, intending to be legally bound, the parties hereto
have executed this Assignment as of the day and year first above written.
ASSIGNOR:
[___________________________]
a [___________________________]
By:
---------------------------
Name:
Title:
ASSIGNEE:
[___________________________]
a [___________________________]
By:
---------------------------
Name:
Title:
- 52 -
Schedule A
Legal Description of the Premises
(See Attached)
- 53 -
Schedule B
Intangible Property
- 54 -
EXHIBIT M
XXXX ENGINEERING GROUP Environmental Reports:
1) Phase I Environmental Update - Project # 6456 dated March 7, 2000
2) Phase I Environmental Site Assessment - Project # 4660 dated July 9,
1998
EXHIBIT "N"
EXISTING LITIGATION
none
- 56 -
EXHIBIT "O"
TENANTS FROM WHOM ESTOPPEL CERTIFICATES ARE REQUIRED
Walgreens
Chick-A-Filet
Bed Bath and Beyond
Michaels
Office Max
Xxxx Xxxxxxxx
Salon Boutique
- 57 -
EXHIBIT "P"
FORM OF SELLER ESTOPPEL CERTIFICATE
To: Inland Real Estate Acquisitions, Inc.,
and its lenders, successors and assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx ("Purchaser")
Re: Lease Agreement dated _______________ and amended ______________
("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, to the actual knowledge of Landlord, the
following representations with respect to the Lease are accurate and complete in
all material respects as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and
waivers related to the Lease ___________________
b. Commencement Date ___________________
[Note: Commencement Date info to be provided for following tenants
only: Michael's, Salon Boutique, Xxxx Xxxxxxxx Realty, Carpet Xxxxx
of America, North Dallas Eye Associates, The Nail Club, Oxford
Cleaners and Rick's Tailors.]
c. Expiration Date ___________________
d. Current Annual Base Rent $__________________
e. Fixed or CPI Rent Increases ADJUSTMENT DATE RENTAL AMOUNT $______
f. Square Footage of Premises
g. Security Deposit Paid to Landlord ___________________
h. Renewal Options____ Additional Terms for years at $____ per year
i. Termination Options Termination Date___________
Fees Payable $__________
2. Landlord further certifies that, to the actual knowledge of Landlord, the
following representations with respect to the Lease are accurate and complete in
all material respects as of the date hereof:
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;
c. Tenant has accepted and is occupying the Premises, all
construction required to be performed by Landlord under 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 on any rental payment or other
charges;
f. 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. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
- 58 -
h. Except as set forth in the Lease, 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. Except as set forth in the Lease, Tenant has not been granted any
options or rights of first refusal to purchase the Premises or the
Property [Note: this representation must be qualified to address
the right of first refusal granted to Walgreen;
j. Except as set forth in the Lease, the Lease does not give the
Tenant any operating exclusives for the Property; and
k. 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 its lender ("Lender") will be providing
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.
4. The provisions hereof are subject to the provisions of Section 19, of the
Sale-Purchase Agreement, dated as of [____] [____]. 2003 between [Name of
Purchaser] and the undersigned (the "Agreement").
5. The certifications stated herein are subject to the provisions of the
Agreement, and, specifically, the provisions of Section 36 thereof.
6. As used herein, the term "to the actual knowledge of the undersigned" and
words of similar import, shall mean the actual present cognitive awareness (as
differentiated from imputed or constructive knowledge) of ___________ without
any obligation to make inquiry of any kind.
CDG (Park Place) LLC
By:
-------------------------
Its:
-------------------------
Date: __________________, 2003
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EXHIBIT "Q"
FORM OF TENANT ESTOPPEL CERTIFICATE
To: Inland Real Estate Acquisitions, Inc.,
and its lenders, successors and assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx ("Purchaser")
Re: Lease Agreement dated _______________ and amended ______________
("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 representations with respect
to the Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and
waivers related to the Lease ___________________
b. Commencement Date ___________________
[Note: Commencement Date info to be provided for following tenants
only: Michael's, Salon Boutique, Xxxx Xxxxxxxx Realty, Carpet Xxxxx
of America, North Dallas Eye Associates, The Nail Club, Oxford
Cleaners and Rick's Tailors.]
c. Expiration Date ___________________
d. Current Annual Base Rent $__________________
e. Fixed or CPI Rent Increases ADJUSTMENT DATE RENTAL AMOUNT $____
f. Square Footage of Premises
g. Security Deposit Paid to Landlord ___________________
h. Renewal Options____ Additional Terms for years at $___ per year
i. Termination Options Termination Date____________
Fees Payable $___________
2. Tenant further certifies to Lender and Purchaser 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 follow:______________________________;
c. Tenant has accepted and is occupying the Premises, all
construction required by the Lease to be performed by Landlord 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 on any rental payment or other
charges;
f. 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;
- 60 -
g. 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 [Note - insert the
following in the Estoppel Certificate for Walgreen: "except as set
forth in Section 25 of the Lease"];
j. Tenant has not received 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;
k. To the Tenant's knowledge no hazardous wastes 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;
l. the Lease does not give the Tenant any operating exclusives for
the Property, except as set forth in the Lease; and
m. 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 its lender ("Lender") will be providing
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 Landlord. All rent payments under the Lease shall continue to be paid to
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 landlord's interest under the Lease, Tenant agrees to
recognize Lender as the landlord under the Lease at Lender's request and Lender
agrees that unless Tenant is in default under the Lease, the Lease will remain
in full force and effect. Tenant further acknowledges and agrees that 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
- 61 -
EXHIBIT "R"
TITLE AND SURVEY COMMENTS LETTER
- 62 -
[INLAND LOGO]
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
000-000-0000 Fax: 000-000-0000
Law Department
XXXXXX X. XXXXXXXX
VICE PRESIDENT AND
SENIOR COUNSEL
XXXXXXXX@XXXXXXXXXXX.XXX
July 16, 2003
VIA FACSIMILE (000) 000-0000
AND FEDERAL EXPRESS
CDG (Park Place), LLC
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
RE: THE SHOPS AT PARK PLACE, PLANO, TEXAS/TITLE COMMITMENT AND SURVEY
OBJECTIONS
Dear Xxxxx:
Pursuant to Article 8, Title Insurance, of the proposed Real Estate Sale
and Purchase Agreement, on behalf of Inland Real Estate Acquisitions, Inc., the
Purchaser, I am hereby giving notice of the following Unpermitted Title
Exceptions:
1. Survey and title legal descriptions do not match.
2. Taubman sanitary sewer easement needs to be added as an additional
insured parcel.
Regarding the survey, please note the following as Unpermitted Survey
Conditions:
1. The survey and title legal descriptions do not match.
2. Per the Bed, Bath & Beyond lease, the elevations of the highest
structure on the buildings on Pads A & B need to be taken to
verify compliance with the Bed, Bath & Beyond height restrictions
of other buildings.
3. Schedule B Item 14, the Taubman sanitary sewer easement, needs to
be surveyed and shown on the survey, which may be shown on a
separate page. Such depiction must show or otherwise indicate to
the satisfaction of purchaser that the sanitary sewer ultimately
runs into a public sanitary sewer and that there is no impairment
by buildings, or otherwise, of the Taubman sanitary sewer
easement.
4. Schedule B Exception 23, easements per Volume M, Page 527, over
and across Lot 3, are not shown on the survey.
EXHIBIT R
Xx. Xxxxxxx Xxxxxxx
July 16, 2003
Page 2
5. Aggregate parking space count, as well as the number of parking
spaces for each lot, need to be shown on the survey. The total
acreage of all four lots needs to be shown on the survey.
6. The certification needs to be written in conformance with
Paragraph 8 of the current ALTA survey standards and with Inland
Real Estate being described as Inland Real Estate Acquisitions,
Inc. Also, the ultimate grantee, which I expect to form in the
next week or so, will need to be on the certification as well.
7. The Survey needs the approval of Chicago Title Insurance Company,
in all respects including as required for modification of the
survey exception.
As provided in Article 8 of the agreement, please advise me of your
decisions in handling the Unpermitted Title Exceptions and the Unpermitted
Survey Exceptions as required by said Article 8.
Cordially,
THE INLAND REAL ESTATE GROUP, INC.
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Senior Counsel
EBK/km
c: Mr. John X.X. Xxxxxxx (via facsimile 561.833.4118 and Federal Express)
Xxxxx X. Xxxxxx, Esq. (via facsimile 561.366.9145 and Federal Express)
