Exhibit 10.212
POST CLOSING AGREEMENT
THIS POST CLOSING AGREEMENT (this Agreement) is made and entered into as of
the 30th day of June, 2004, by and between INLAND WESTERN BLUFFTON LOW COUNTRY,
L.L.C., a Delaware limited liability company (Purchaser), and XXXXXXXX XXXXXXXX,
LLC., a Georgia limited liability company (Seller), in connection with the
acquisition by Purchaser of that certain property commonly known as Phase I of
Low Country Village Shopping Center, Bluffton, South Carolina (the Property).
WHEREAS, Purchaser is acquiring the Property from Seller (the
"Transaction").
WHEREAS, in order to proceed with and consummate such acquisition and as a
condition to closing the Transaction, Purchaser requires that Seller agree to
the obligations set forth below, which are to be performed after such closing.
NOW, THEREFORE, for good and valuable consideration including the mutual
promises contained herein, the parties hereto agree as follows:
1. WARRANTIES. Seller's right, title and interest in, to and under the
warranties set forth on Exhibit A attached hereto and made a part hereof
(individually, a "Warranty," and collectively, the "Warranties") were not
assigned to Purchaser at the closing of the Transaction because such Warranties
may not be assigned or transferred without the prior consent of the Warranty
issuer. From and after the date of this Agreement, Seller shall use commercially
reasonable efforts to have such Warranties issued and obtain the aforementioned
consents (upon the receipt of which Seller shall assign such Warranty to
Purchaser) or have the Warranties reissued in the name of Purchaser. Seller
shall be responsible for the payment of any and all fees and costs in connection
with obtaining any such consents with respect to or the re-issuance of any of
the Warranties. Seller shall, until the first to occur of (i) the expiration of
an applicable Warranty and (ii) the date that the applicable Warranty is
assigned to Purchaser (with any and all required consents) or reissued in the
name of Purchaser, cooperate with Purchaser, at no cost to Seller, with respect
to the enforcement of the terms and provisions of, and any and all claims under,
any Warranty.
2. BUILDING ENCROACHMENT VARIANCE. (a) Seller and Purchaser acknowledge
that a small portion of the building located upon the Property encroaches over a
ten foot (10') buffer running along the northern boundary line of the Property
as designated on Exhibit "D" hereto (the "Encroachment"). From and after the
date of this Agreement, Seller shall either (i) file and pursue with reasonable
diligence, an application to obtain a variance from the County of Beaufort,
South Carolina (and any other governmental entities or agencies with
jurisdiction)(collectively, the "County") permitting the Encroachment (the
"Variance") or (ii) obtain from such County, a letter or other written approval
of the Encroachment on the grounds that the "modulation" rules allow the
Encroachment (the "Approval Letter", such Approval Letter or Variance being
herein referred to as the "County Approval"). Seller shall be responsible for
the payment of any and all fees, costs and expenses not to exceed $ 2500.00 in
connection with obtaining the Variance or Approval Letter. Purchaser agrees to
reasonably cooperate with Seller, at Seller's cost, in connection with obtaining
the Variance (including, without, limitation, executing any application to be
submitted requesting the Variance). Prior to filing any application or other
documents relating to the approval, Seller shall provide Purchaser with copies
thereof for Purchaser's review and approval (not to be unreasonably withheld or
delayed). Additionally, not less than two (2) business days prior thereto,
Seller shall inform Purchaser of any and all meetings, hearings and formal
negotiations with any representatives of the County or the public regarding the
Encroachment and/or the Variance. Purchaser shall have the right to have a
representative present at and participate in any such meetings, hearing and/or
other conversations or negotiations. Without Purchaser's prior approval, Seller
shall make no agreements with the County regarding the Encroachment or the
Variance which shall be binding upon Purchaser or the Property.
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3. PETSMART TENANT ESTOPPEL. Within thirty (30) days after the date of
this Agreement, or such longer period as PetsSmart allows Seller, as the case
may be, Seller shall, at its cost, satisfy the requirements of Section 9 of the
PetsMart tenant estoppel certificate attached hereto as Exhibit B and made a
part hereof. Seller promptly shall deliver to Purchaser copies of any
reconciliation pursuant to such Section 9 agreed to by Seller and XxxxXxxx.
0. XXXXXXXX XXXX. From and after the date of this Agreement until the one
(1) year anniversary of the date hereof ("Outside Date"), Seller shall use
commercially reasonable efforts, at its cost and expense, to dedicate, or cause
to be dedicated, Xxxxxxxx Road (a legal description of which is attached hereto
as Exhibit C and made a part hereof) to the County, such that Xxxxxxxx Road
shall be a publicly dedicated roadway. Should such dedication have not been
achieved by the Outside Date, Seller shall have no further obligation to
continue such efforts.
5. CROSS DRAINAGE EASEMENT. Seller shall use reasonable efforts to have
the Cross Drainage Easement For Stormwater Management between Seller (to be
executed by Purchaser) and DID2, LLC, executed by all parties thereto including
any mortgagees consenting and subordinating their mortgages to such agreement.
6. FURTHER ASSURANCES. Seller and Purchaser agree to cooperate with each
other following the closing to confirm any matter and execute any document
reasonably required by the other party in furthering of the closing.
7. MISCELLANEOUS. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of South Carolina. The invalidity
or unenforceability of any provision of this Agreement shall not affect, modify
or impair the validity and enforceability of all other provisions of this
Agreement. This Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their representatives, heirs, legatees, successors, and
assigns; provided, however, that Seller shall have no right whatsoever to assign
its interest under this Agreement and any such attempted assignment shall
automatically be null and void and of no force and effect, and shall be deemed a
breach by Seller of its obligations hereunder. No failure or delay by Purchaser
in exercising any right, power or privilege under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any right, power or
privilege hereunder. No change, amendment or modification of this Agreement
shall be binding or enforceable unless in writing and executed by the party to
be bound thereby. The covenants, agreements and indemnification provisions
contained in this Agreement shall be enforceable notwithstanding the closing of
the Transaction. In the event of litigation with respect to any portions of this
Agreement, the prevailing party will be entitled to collect all reasonable legal
fees incurred in connection with such litigation from the non-prevailing party.
Purchaser shall have all remedies available at law and in equity on account of a
default by Seller under this Agreement. Time is of the essence of this Agreement
and the terms hereof. This Agreement may be signed in counterparts.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective as of the first date written above.
SELLER:
XXXXXXXX XXXXXXXX, LLC, a Georgia
limited liability company
By: Xxxxxxxx Development Company
Its manager
By: /s/ XxXxxx Xxxxxxxx
--------------------------------------------
Name: XXXXXX XXXXXXXX
------------------------------------
Its: PRESIDENT
----------------------------------
[CORPORATE SEAL]
PURCHASER:
INLAND WESTERN BLUFFTON LOW
COUNTRY, L.L.C., a Delaware limited liability
Company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., its sole member
By:
-----------------------------------
Name:
----------------------------
Its:
-----------------------------
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IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective as of the first date written above.
SELLER:
XXXXXXXX XXXXXXXX, LLC
By:
-------------------------------
Name:
------------------------
Its:
-------------------------
PURCHASER:
INLAND WESTERN BLUFFTON LOW COUNTRY, L.L.C.
By: INLAND WESTERN RETAIL REAL ESTATE TRUST, INC., its sole member
By: /s/ XXXXXXX XXXXXX
--------------------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------------
Its: Asst. Secretary
--------------------------------------
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EXHIBIT A
WARRANTIES
[ILLEGIBLE]
PETSMART
SPACE
Roof - Single-Ply System Carlisle Yes
Kynar 500 or Hylar 5000 Berridge Manufacturing Co. Yes
Limited Warranty
Galvalume Sheet Limited National Steel Corporation Yes
Warranty
Glass Aluminum and Glass Co. Yes
HVAC Warranty Lennox Not Issued
XXXX SPACE
Roof - Single-Ply System Carlisle Yes
Kynar 500 or Hylar 5000 Berridge Manufacturing Co. Yes
Limited Warranty
Galvalume Sheet Limited National Steel Corporation Yes
Warranty
Glass Aluminum and Glass Co. Yes
HVAC Warranty Lennox Not Issued
Automatic Doors Besam Not Issued
Dock Equipment Rite Xxxx Not Issued
MICHAEL'S
SPACE
Roof - Single-Ply System Carlisle Yes
Kynar 500 or Hylar 5000 Berridge Manufacturing Co. Yes
Limited Warranty
Galvalume Sheet Limited National Steel Corporation Yes
Warranty
Glass Aluminum and Glass Co. Yes
HVAC Warranty Lennox Not Issued
RETAIL SPACE
Roof - Single-Ply System Carlisle Yes
Kynar 500 or Hylar 5000 Berridge Manufacturing Co. Yes
Limited Warranty
Galvalume Sheet Limited National Steel Corporation Yes
Warranty
Glass Aluminum and Glass Co. Yes
HVAC Warranty Lennox Not Issued
Automatic Doors Besam Not Issued
Dock Equipment Rite Xxxx Not Issued
EXHIBIT B
PETSMART TENANT ESTOPPEL
TENANT'S ESTOPPEL CERTIFICATE
The undersigned certifies to Inland Real Estate Acquisitions Inc., Inland
Western Bluffton Low Country, L.L.C, ("Purchaser"), that as of the date hereof:
1. PETsMART, INC., a Delaware corporation ("Tenant") and Xxxxxxxx
Xxxxxxxx, L.L.C, a Georgia limited liability company ("Landlord") entered into a
written Shopping Center Lease dated March 28, 2003 ("Lease") in which Landlord
leased to Tenant and Tenant leased from Landlord certain promises containing
approximately 19,107 square feet of space (the "Premises") located at Low
Country Village (the "Shopping Center") in Bluffton,
South Carolina (the
"Property"), all as more particularly described in the Lease.
2. The Lease is in full force and effect and has not been modified.
3. The Term of the Lease as set forth in Paragraph C(i) of the
Fundamental Lease Provisions of the Lease is fifteen (15) Lease Years. The
Initial Term of the Lease commenced on May 1, 2004 and will expire April 30,
2019, unless sooner terminated in accordance with the terms and conditions of
the Lease. Tenant has the option to extend the Term for up to three (3) renewal
options of five (5) Lease Years each.
4. The Security Deposit held by Landlord under the Lease is: None.
5. No Base Rent has been paid more than thirty (30) days in advance. The
Monthly Base Rent presently stated in the Lease to be payable under the Lease is
$20,619.64.
6. To Tenant's current actual knowledge, there are no uncured
defaults by Landlord under the Lease, and Tenant knows of no events or
conditions which, with the passage of time or notice, or both, would constitute
a default by Landlord under the Lease.
7. To Tenant's current actual knowledge, there are no existing defenses
or offsets which the undersigned has against the enforcement of the Lease by
Landlord.
8. Notwithstanding and without limitation of any provision hereof, Tenant
expressly reserves all rights and remedies under the Lease including, without
limitation, reserving the right to audit Landlord's books and records pursuant
to the Lease and any and all other audit rights.
9. Tenant hereby issues this certificate of estoppel in reliance upon the
Landlord providing to Tenant, within thirty (30) days from the date of transfer,
a full reconciliation of expenses including, but not limited to, common area
costs, insurance and real estate taxes for the period prior to Landlord's
sale ("Final Reconciliation"). Further Tenant hereby issues this certificate of
estoppel in reliance upon the representation and warranty of any successor
landlord to take responsibility for providing to Tenant the Final Reconciliation
in the event Landlord fails to do so.
Tenant's Estoppel Certificate
PETsMART Store No. 1186
Bluffton, SC
10. The undersigned has all requisite authority to execute this
Certificate on behalf of Tenant. The undersigned acknowledges that purchaser has
requested the information contained herein for purposes of confirming and
clarifying certain provisions of the Lease and is relying (and will rely) on the
truth and accuracy of the representations made herein and upon the authority of
the undersigned to execute this Certificate on behalf of Tenant, in connection
with purchaser's decision to purchase the Property. No other person or entity is
entitled to rely upon this Certificate or any of the statements contained
herein. Nothing contained in this Certificate is intended to alter or modify the
terms of the Lease, nor to impose any additional obligations on the undersigned,
and purchaser is encouraged to consult the specific provisions of the Lease.
EXECUTED this 26th day of May, 2004.
PETsMART, Inc.,
a Delaware corporation
By: /s/ Xxxxx Plotrowski
----------------------------
Name: Xxxxx Plotrowski
Title: Senior Counsel
PETsMART Store No. 1186
Bluffton, SC
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EXHIBIT "C"
LEGAL DESCRIPTION OF XXXXXXXX ROAD
ALL those certain pieces, parcels or tracts of land, situate, lying and being in
Xxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, being shown and designated
as Parcel 526, 2.556 Acres, Xxxxxx Hill road, 66' Road Easement on a survey
entitled "Boundary Survey of Parcels 7B, 310, 671 and 000, Xxxxxxxx Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx." dated May 24, 2001, prepared by Xxxxxxxx
Properties, Inc., certified by Xxxx Xxxxx, S.C.R.L.S. No. 13852, and recorded in
the Beaufort County Records in Plat Book 80 at Page 76. For a more detailed
description as to the metes and bounds, courses and distances, reference is had
to the aforementioned recorded plat.
Exhibit D
[ILLEGIBLE]
Site requirements per Beaufort County Zoning & Development Standards Ordinance
Property Zoning: Commercial Regional (modified by deed book 1253, pg. 550; deed
book 1350, pg. 2433; deed book 1350, pg. 2454)
Building Size & Open Space: Guidelines established by multiple parcel agreement
(see deed book listing above)
Roadway Buffers & Setbacks: US Hwy 278 - 50'; Xxxxxxxx Road - 25'
Perimeter Buffers & Setbacks: Commercial adjoiner - 10'; Residential adjoiner -
25';
Recreational adjoiner - 10'
Internal Buffers & Setbacks: Commercial - 0'; Residential - 10'
Maximum Paved Parking per Ordinance - 306
Maximum Paved Parking per Beaufort County Development Permit - 322
Standard Parking Spaces Provided - 322
Handicap Parking Spaces Provided - 8 (8 Handicap spaces required)
Maximum Building Height: 40'
Approximate Actual Height: Front - 32'; Rear - 29'
NOTES:
1. Xxxx set in concrete curb at previously surveyed location of destroyed CMF.
Curb projects approximately 1.13' onto adjoining parcel at property corner.
2. The same being 10.44 acres shown on a plat entitled "ALTA/ACSM Land Title
Survey of Tax Parcel R600-040-000-0007" dated 5/15/03 by Land Resource
Consultants and recorded in the R.O.D. Office for Beaufort County in plat book
93 at page 37.
3. Underground utility locations are based on above ground features, utility
company markings, & available plans & maps.
4. Property has two access points to Xxxxxxxx Road Xxxxxxxx Road is a private
road. Xxxxxxxx Road provides access to U.S. Hwy. 278.
5. Subject property is Tax Parcel DMP No. R600 040 000 0007 0000. According to
Beaufort County Tax Maps, the DMP No. does not appear to relate to any other
parcels.
6. The subject property is the same as described in the preliminary title
commitment.
[FLOOR PLAN]
DMP NO. R600 040 000 0207 0000
N/F HAMRICH ENTERPRISES LLC
PLAT BOOK 35, PAGE 286
