Exhibit 10.69
Inline/Inland
AGREEMENT OF SALE
THIS AGREEMENT made this _________ day of January 2004, between KIMCO
XXXXXXX PEORIA CROSSING, L.P., an Arizona Limited Partnership, with an office at
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000 (P. O. Xxx 0000), Xxx Xxxx Xxxx, Xxx Xxxx
00000 (hereinafter, "Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an
Illinois Corporation, with an office at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000 (hereinafter, "Buyer").
WHEREAS, Seller owns a shopping center commonly known as Peoria Crossing
located in Peoria, Arizona (the "Shopping Center") and Seller wishes to sell and
Buyer wishes to buy a portion of the Shopping Center;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. DEFINITIONS. The following expressions shall have the meanings set
forth below:
1.1 "Real Estate" means the land described on EXHIBIT 1 and all of
the buildings and other improvements constructed thereon.
1.2 "Space Lease(s)" means all lease(s), license(s), concessions
or other occupancy or use agreements, including all modifications, addenda and
supplements thereto and guarantees thereof, applicable to any part of the Real
Estate. All existing Space Leases as of the date hereof are listed on attached
EXHIBIT 2.
1.3 "Property" means collectively all of Seller's rights and
interests in the Real Estate, the Space Leases and the other assets described in
ARTICLE 2 hereof.
1.4 "Closing Date" means the date on which Closing occurs.
"Closing" means the event whereby title to the Property is actually conveyed by
Seller to Buyer.
1.5 "Service Contracts" means all written agreements pursuant to
which goods, services or supplies are furnished on a recurring basis for the
operation of the Real Estate and are approved by Buyer during the Due Diligence
Period (as hereinafter defined). Copies of such Service Contracts are attached
as EXHIBIT 3.
l.6 "Escrow Agent" means Chicago Title and Trust Company, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, Attn: Xxxxx Xxxxxx, Escrow Agent. Chicago
Title and Trust Company may also be hereinafter referred to as the "Title
Company".
1.7 "Due Diligence Period" means a period of time commencing on
the date a fully executed copy of this Agreement is received by Buyer in
accordance with Article 13 hereof and expiring at midnight, New York time, on
the 30th calendar day thereafter or the first business day after such 30th day
if such 30th day is not a business day.
1.8 "Permitted Exceptions" means those certain title exceptions
set forth in EXHIBIT 6 attached hereto that are approved by Buyer in accordance
with the terms of Article 6 hereof.
1.9 "Personal Property" means all personal property and equipment
(if any) owned by Seller and located on the Real Estate.
1.10 "Deposit" means a deposit, to be paid by Buyer to Escrow Agent
upon the execution hereof, in the amount of FIVE HUNDRED THOUSAND ($500,000.00)
DOLLARS, plus all interest earned thereon.
1.11 "REA" means that certain Operation and Easement Agreement
dated December 12, 2000, between Target and Seller recorded as
document Number 2000-0955893 as amended Buyer acknowledges
receipt of a copy of the REA.
1.12 "Environmental Report" means that certain Phase 1
Environmental Assessment dated March 13, 2000 and prepared by
SPREDIER & ASSOCIATES. Buyer acknowledges receipt of a copy of
the Environmental Report.
1.13 "Development Agreement" shall mean that certain Amended and
Restated Development Agreement dated December 1, 2000 between
Seller (as successor by assignment from Xxxxxxx Holdings XVI,
L.L.C. d/b/a Xxxxxxx Group) and the
City of Peoria, Arizona dated December 1, 2000, and recorded
as document number 2000-0943910 on December 11, 2000.
2. SALE AND PURCHASE. In accordance with the provisions of this
Agreement, Seller agrees to sell, convey, assign and transfer to Buyer, and
Buyer agrees to purchase and acquire from Seller, subject to the Permitted
Exceptions and Space Leases, all of Seller's right, title and interest in and
to: (a) the Real Estate, (b) the Space Leases, (c) any Personal Property, (d)
any land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Real Estate, (e) any strips or gores adjoining the
Real Estate, (f) all appurtenances and hereditaments appertaining to the Real
Estate (excluding any benefits or reimbursements provided for in the Development
Agreement) and (g) the right to use, in common with the Seller (or its
successors with respect to the remaining portion of the Shopping Center) the
name "Peoria Crossing Shopping Center" provided Buyer's use of same is done in a
commercially reasonable manner in connection with the first class operation of
the Property.
3. PURCHASE PRICE. The "Purchase Price" for the Property shall be THIRTY
SEVEN MILLION TWO HUNDRED SIXTY EIGHT THOUSAND ($37,268,000.00) DOLLARS and
shall be paid as follows:
A. (i) Upon the execution of this Agreement Buyer shall pay
the Deposit to Escrow Agent by bank check to the order of Escrow Agent or wire
transfer of federal funds for immediate credit.
(ii) The Deposit shall be invested by Escrow Agent in a
sound financial institution's money market fund or account which pays interest
or dividends, in Escrow Agent's name separate from its personal and business
accounts. All investment decisions shall be made by Buyer. If no Closing occurs,
all interest or dividends earned shall be paid to the party entitled to the
escrowed proceeds, which party shall pay all income taxes thereon. The parties
shall furnish Escrow Agent with their respective tax identification numbers. At
Closing, Escrow Agent shall pay the Deposit (together with all interest earned
thereon) to Seller; and the principal portion of the Deposit shall be a credit
against the Purchase Price (but no such credit shall be given for the interest
earned on such principal portion of the Deposit, if any, which shall be the
property of Buyer). All escrow fees, if any, charged by Escrow Agent shall be
equally shared by Seller and Buyer. Escrow Agent shall hold the Deposit as set
forth above unless either Seller or Buyer makes a written demand upon Escrow
Agent for the Deposit accompanied by an affidavit signed by the party making the
demand stating sufficient facts to show that said party is entitled to receive
the Deposit pursuant to the terms of this Agreement. Upon receipt of such
demand, Escrow Agent shall give ten (10) days written notice to the other party
of such demand and of Escrow Agent's intention to remit the Deposit to the party
making the demand on the stated date, together with a copy of the affidavit. If
Escrow Agent does not receive a written objection before the proposed date for
remitting the Deposit, Escrow Agent is hereby authorized to so remit. If,
however, Escrow Agent actually receives written objection from the other party
before the proposed date on which the Deposit is to be remitted, Escrow Agent
shall continue to hold the Deposit until otherwise directed by joint written
instructions from Seller and Buyer or until a final judgment of an appropriate
court. In the event of a dispute, Escrow Agent may place the Deposit with an
appropriate court and, after giving written notice of such action to the
parties, Escrow Agent shall have no further obligations with respect to the
Deposit. The parties acknowledge that Escrow Agent is acting as a stakeholder at
their request and for their convenience, that Escrow Agent shall not be deemed
to be the agent of either of the parties, and the Escrow Agent shall not be
liable to either of the parties for any act or omission on its part unless taken
or suffered in bad faith or in willful or negligent disregard of this Agreement.
Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent
harmless from and against all costs, claims and expenses, including reasonable
attorney' fees, incurred in connection with the faithful performance of Escrow
Agent's duties hereunder. Escrow Agent acknowledges agreement to the provisions
of this Agreement applicable to it by signing on the signature page of this
Agreement. Notwithstanding the foregoing, Buyer shall have the right to deliver
a notice of termination of this Agreement to Escrow Agent and Seller on or prior
to the expiration of the Due Diligence Period and Escrow Agent shall be
authorized, immediately upon receipt of such notice and verification of Seller's
receipt of same, to return the Xxxxxxx Money to Buyer. Buyer agrees to return
all documents provided to Buyer by or on behalf of Seller to Seller within
fifteen (15) days of Tenant's delivery of the notice of termination to Escrow
Agent and Seller.
B. At Closing, and subject to the terms and provisions of this
Agreement, Buyer shall pay Seller the balance of the Purchase Price by wire
transfer of immediately available federal funds into a so-called "New York
Style" closing escrow to be established by the Escrow Agent. Seller shall
furnish Escrow Agent with wire transfer instructions prior to Closing.
C. Intentionally Deleted.
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D. In connection with any Personal Property included in the sale,
the parties agree that no part of the Purchase Price shall be deemed to have
been paid by Buyer on account thereof.
4. CONDITIONS PRIOR TO CLOSING; DUE DILIGENCE PERIOD.
4.1 (A) Buyer shall at Closing accept the Property in AS IS
physical condition as exists on the date hereof, subject to reasonable wear and
tear between the date hereof and the Closing Date. Buyer acknowledges that Buyer
will have the Due Diligence Period to inspect the Shopping Center or cause an
inspection thereof to be made on Buyer's behalf and it is understood and agreed
that neither Seller nor any person acting or purporting to act for Seller has
made or now makes any representation as to the physical condition (latent or
patent or otherwise), income, expense, operation, legality of current rents, or
any other matter of thing affecting or relating to the Shopping Center except as
herein specifically set forth. Buyer hereby expressly acknowledges that except
as expressly set forth herein, no such representations have been made and Buyer
further agrees to take the Shopping Center "as is" as of the date hereof and
subject to normal use, wear, tear, and deterioration between now and Closing.
Buyer agrees that Seller is not liable or bound in any manner by any financial
or written statements, representations, real estate brokers' "set-ups", or
information pertaining to the Shopping Center furnished by any real estate
broker, agent, employee, trustee, servant or other person, unless the same are
specifically set forth herein. It is understood and agreed that all
understandings and agreements heretofore had between the parties are hereby
merged in this Agreement which alone fully and completely expresses their
agreement and that the same is entered into after full investigation, neither
party relying upon any statement or representation made by the other not
embodied in this Agreement.
(B) SELLER'S REQUIRED PRE-CLOSING DELIVERIES
Seller shall, as soon as practicable after the date of this Agreement but not
later than five (5) business days after the date of this Agreement,, deliver to
Buyer the following (which are referred to herein as "Pre-Closing Deliveries"):
(a) copy of the Space Leases affecting the Property; (b) a certification from
Seller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth the
name of each tenant at the Property and the date of the Space Leases and any
modifications or amendments thereto, the amount of rent payable by each tenant
throughout the term of its respective Space Lease, any concessions granted to
the tenants, the amount of security deposits, if any, (or a certification that
Seller is not holding any security deposits), the expiration date of the Space
Leases, and the existence of any options to renew or extend the term of the
Space Leases or to purchase all or any part of the Property and such information
with respect to any subtenant if Seller has knowledge thereof; (c) a
certification by Seller that there are no employees at the Property; (d) a
certification by Seller that, other than as disclosed to Buyer, there are no
service agreements, maintenance contracts or other similar agreements affecting
the Property; (e) copies of the most recent tax xxxx for the Property, together
with copies of any notice of assessments received by Seller, or any other
information relative to taxes assessed against the Property; (f) copies, if any,
of any environmental reports, architectural drawings, warranties, guarantees,
plans and specs or any similar document in Seller's possession relating to the
Property; (g) copies of any insurance policies or certificates insuring the
Property, whether purchased by Seller or by the tenants under the Space Leases;
(h) copies of certificates of occupancy for each tenant at the Property and
copies of any building code violations received by Seller with respect to the
Property during the last two years and evidence reasonably acceptable to Buyer
that such violations have been corrected, or a certification from Seller that it
has not received any notice of building code violations; (i) the materials
described on Buyer's Due Diligence Checklist, attached hereto as Exhibit 12, and
made a part hereof; (j) as applicable (depending upon the number of years the
Property has been operating), an operating statement for the Property for the
two calendar years prior to the year of the date hereof, and monthly operating
statements for the Property for each month of the year of the date hereof. Such
statements shall include reasonable detail of all items of income and expense,
other than construction costs as well as all items of capital expenditures made
during the relevant periods, other than capital expenditures made in connection
with the initial construction of the Shopping Center.
4.2 On and after the date hereof, Buyer shall have access to the
Property for the purpose of making engineering, survey or non-intrusive
inspections and independent investigations; and Seller will on receipt of
reasonable prior written notice, provide Buyer with access to information within
its possession or control with respect to the Property, including (without
limitation) full and accurate copies of Space Leases, Service Contracts, title
information or instruments, and books and operating records of the Shopping
Center. Buyer agrees to defend, indemnify and hold Seller harmless from any
personal injury or property damage caused by Buyer in doing any testing,
inspections or survey and such obligation shall survive the Closing or sooner
termination of this Agreement. Buyer shall give Seller true, accurate and
complete copies of all written reports prepared by third parties resulting from
Buyer's inspections and investigations.
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4.3 (a) Buyer shall have the Due Diligence Period within which
to inspect and examine the Real Estate, the Space Leases and the Service
Contracts.
(b) In the event that during the Due Diligence Period,
Buyer, in its sole judgment, and absolute discretion, determines that Buyer is
not satisfied with the condition of the Real Estate, the Property, the Space
Leases or the Service Contracts then, prior to the end of the Due Diligence
Period, Buyer shall have the right by giving written notice to Seller and Escrow
Agent to cancel and terminate this Agreement without liability except as set
forth in Sections 4.2 and 15.8, Upon receipt of such notice prior to the end of
the Due Diligence Period, Escrow Agent shall deliver the Deposit to Buyer. In
the event Buyer fails to give such notice prior to the end of the Due Diligence
Period, Buyer's right to cancel this Agreement pursuant to this Section 4 shall
lapse.
4.4 Replat of Shopping Center and Real Estate. During the Due
Diligence Period Seller shall prepare a proposed replat of the Real Estate, from
the Shopping Center of which it is a part such that the Real Estate will be
comprised of a separate lot(s) for real estate taxes and other purposes (the
"Replat"). The Parties acknowledge that such Replat is subject to Target's
approval and then City of Peoria's approval (the "City"). On or before closing,
Seller shall either: (i) submit same for approval and recording with the City or
(ii) advise the City of the proposed Replat and of its intention of selling the
Real Estate to Buyer before the Replat has been submitted or accepted for
recording. Buyer acknowledges that the Closing may occur without such Replat
being recorded and/or approved by the City or other applicable government
authorities. In the event the Replat is not completed (i.e. submitted, approved
by the City and recorded) as of the Closing, the Seller may convey and the Buyer
agrees to accept the transfer of the Real Estate based on a metes and bounds
description of such Real Estate (which Title Company will insure). Seller at its
sole cost and expense agrees to continue to use its diligent good faith efforts
to complete the Replat of the Real Estate after Closing and Buyer agrees to
cooperate with Seller to obtain same, which may include de minimus adjustments
to boundaries of the Real Estate to the extent required by the City.
4.5 THE "BUYER DECLARATION". The OEA only provides for two (2)
Approving Parties as defined therein in as Target and Seller. Accordingly during
the Due Diligence Period Buyer and Seller shall negotiate an Agreement that will
provide for a process between Buyer and Seller for any approvals required by
Buyer under the OEA as it is the intention of the Parties that after Closing
Seller shall remain both the "Approving Party" of the Developer Tract and the
"Operator", and to ascertain Buyer's percentage of the Developers Tract for
purposes of calculating Buyer's share of Common Area Maintenance Costs as such
terms are defined in the OEA.
4.6 KOHL'S AMENDMENT. The Space Lease with the tenant Kohl's
Department Stores, Inc. ("Kohl's") dated May 7, 2002 as amended ("Kohl's Lease")
provides that Landlord shall endeavor to obtain an amendment to the OEA to
provide that Kohl's may maintain the Kohl's Trust as such term is defined in the
Kohl's Lease. It shall be a condition of closing that Seller provide an
amendment to the Kohl's lease acknowledging Target will not consent to such an
amendment to OEA and such condition is deemed waived if Target does agree to so
amend. In addition the Kohl's lease provides that Kohl's has an option to lease
additional space referred to as the "Expansion Space". It shall be a condition
of closing that Seller obtain an amendment to the Kohl's lease to include the
Expansion Space into the Kohl's lease, acknowledging that Kohl's will pay for
any and all CAM, real estate taxes and insurance for such Expansion Space.
4.7 "BUYER OPTION." The Kohl's lease provides that Kohl's may
expand its Building and build onto the Expansion Space. In the event Kohl's were
to exercise its option and build on the Expansion Space, the Kohl's Tract would
not contain enough additional parking spaces (the shortfall) to satisfy the
parking ratio requirements under the OEA which contains enough parking spaces to
make up the shortfall. Accordingly in the event Kohl's exercises its right to
expand into the Expansion Space Seller (or its successor in interest) agrees to
sell Parcel X as set forth on Exhibit___for One Hundred Twenty Five Thousand
Dollars $125,000.00 ("the Option Land"). At closing the parties shall enter into
an Option Agreement and record notice of Option Agreement against Parcel X.
5. ADJUSTMENTS AND PRORATIONS.
5.1 Seller shall be entitled to all income produced from the
operation of the Property which is allocable to the period prior to the Closing
Date and shall be responsible for all expenses allocable to that period; and
Buyer shall be entitled to all income and responsible for all expenses allocable
to the period beginning at 12:01 A.M. on the Closing Date. At Closing, all items
of income and expense with respect to the Property shall be prorated in
accordance with the foregoing provisions and the rules for the specific items
set forth hereafter:
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5.1.1 Seller shall arrange for a billing under a11 those
Service Contracts for which fees are based on usage and with utility companies
for a billing for utilities, to include all utilities or service used up to the
Closing Date, and Seller shall pay the resultant bills. In the event any of the
Service Contracts set forth in EXHIBIT 3 cover periods beyond the Closing Date
the same shall be prorated on a per diem basis.
5.1.2 Real estate taxes, general, special and/or betterment
assessments and personal property taxes shall be prorated for those taxes which
are due and payable as of the Closing Date. In the event that as of the Closing
Date the actual tax bills for the tax year or years in question are not
available and the amount of taxes to be prorated as aforesaid cannot be
ascertained, then rates, millages and assessed valuation of the previous year,
with known changes, shall be used; and after the Closing occurs and when the
actual amount of taxes for the year or years in question shall be determinable,
such taxes will be re-prorated between the parties to reflect the actual amount
of such taxes.
5.1.3 Rentals and other payments (other than "percentage
rent" and common area maintenance charges which are dealt with in SECTION 5.1.4
and SECTION 5.1.6) which are payable pursuant to Space Leases shall be prorated
on a per diem basis as and when collected (subject to the provisions of Section
5.3). Buyer shall not be obligated to make any payment or give any credit to
Seller on account of or by reason of any rental or other payments which are
unpaid as of the Closing Date, but shall be required to turn over Seller's share
of the same within ten (10) days if, as and when received by Buyer after the
Closing; likewise, Seller agrees to turn over Buyer's share of any payments
received from tenants applicable to any period from and after the date of
Closing within ten (10) days of Seller's receipt of same; this provision shall
survive Closing.
5.1.4 Percentage rent; if any, payable under each Space Lease
shall be prorated with respect to the lease year thereunder in which Closing
occurs on a per diem basis as and when collected. Any percentage rent collected
by Buyer including any percentage rent which is delinquent and pertaining to (i)
an entire lease year or accounting period of a tenant under a Space Lease which
ends on a date prior to the Closing Date, or (ii) that portion of a lease year
or accounting period of such tenant covering a period prior to the Closing Date
where such lease year or accounting period begins prior to the Closing Date and
ends thereafter shall in both cases be paid to Seller within ten (10) days of
receipt by Buyer; and if any tenant's Space Lease provides for offsets or
deductions against percentage rent, then such offsets or deductions shall be
prorated in the same manner as the percentage rent itself is prorated. This
provision shall survive Closing.
5.1.5 Gas, water, electricity, heat, fuel, sewer and other
utilities charges to which SECTION 5.1.1 cannot be applied, and the governmental
licenses, permits and inspection fees and operating expenses relating to the
Shopping Center (expressly excluding therefrom, however, such expenses relating
to the initial construction of the Shopping Center), shall be prorated on a per
diem basis.
5.1.6 Common area maintenance expenses and charges shall be
prorated. Seller shall be responsible for all common area expenses and charges
incurred prior to the Closing Date, and Buyer shall be responsible for the same
accruing on and subsequent to the Closing Date. All common area expense payments
made by each tenant and such charges paid under its Space Lease for the entire
lease year during which the Closing occurs, including end-of-year adjustments,
if any, shall be prorated between Seller and Buyer in the following manner: Not
later than three (3) days prior to Closing, Seller shall deliver to Buyer, with
regard to each Shopping Center tenant required to pay common area charges ("CAM
Charges") under its lease, a detailed computation showing all CAM Charge
expenses incurred by Seller for the period from the beginning of each such
tenant's then current billing period for CAM Charges (e.g., calendar year, lease
year, etc.) through the Closing Date, any CAM estimated payments or charges
collected by Seller relating to such tenant (hereinafter "CAM Estimates"), and a
xxxx for the tenant's pro rata share of CAM Charges (i.e., for CAM charges
through the Closing Date net of any such CAM Estimates held by Seller), together
with all invoices and other evidence documenting such CAM Charges in detail
required by such tenant's lease. Buyer shall send any such bills to tenants
promptly following Closing, in which event such tenant shall pay any amount
shown due directly to Seller, and except as otherwise stated in Section 5.3.3
below Buyer shall have no responsibility to collect same. However, if any tenant
rightfully refuses to pay such xxxx for CAM Charges due through the Closing
Date, then Buyer shall resubmit such xxxx to any such tenant at the same time as
Buyer next submits Buyer's own xxxx to any such tenant; and any payment
thereafter made by any such tenant on account of CAM Charges shall belong to and
be forwarded within ten (10) days of its receipt to Seller until Seller's xxxx
is paid in full.
Any CAM Estimates for any tenant shall be retained by
Seller up to the amount of the pre-Closing CAM Charges payable by such tenant as
evidenced by such bills and
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computations delivered by Seller at Closing, and Buyer shall receive a credit
for any excess CAM Estimates collected by Seller.
5.1.7 All prepaid rentals, other prepaid payments(other than
monthly real estate tax estimates or installments), security deposits paid
pursuant to Space Leases, electric, gas, sewer and water deposits deposited with
Seller by tenants, (including any accrued interest required under any Space
Lease on all of the foregoing, unless Seller is entitled to retain the benefit
thereof) under any Space Leases, license agreements or concession agreements
relating to the Property, shall all belong to Buyer and all shall be assigned
and delivered to Buyer at Closing, whereupon Seller shall be released from all
liability with respect thereto. At Seller's option, Buyer shall receive a cash
credit in the amount of all Security Deposits to be delivered to Buyer at
Closing, and Seller may retain same.
5.1.8 Buyer shall not be responsible for any charges,
salaries, vacation pay or fringe benefits of employees of Seller prior to or
following the Closing and none of the foregoing shall be prorated.
5.2 All prorations and payments to be made under the foregoing
provisions shall be made on the basis of a written statement or statements
delivered to Buyer by Seller and approved by Buyer. In the event any prorations,
apportionments or computation shall prove to be incorrect for any reason, then
either party shall be entitled to an adjustment to correct the same, provided
that it makes written demand on the one from who it is entitled to such
adjustment within two (2) years after the erroneous payment or computation was
made; this provision shall survive Closing.
5.3 All accounts receivable flowing from the Property shall be
treated as follows:
5.3.1 Buyer and Seller agree to treat all base or minimum
rental payments received from a tenant as applicable to base or minimum rent
which was owed by that tenant, if any, first for the month prior to the month in
which Closing occurs and next for the month in which Closing occurs until the
base or minimum rental amount due to Seller for such periods have been
collected. In the event that there remains any unpaid base or minimum rent for a
period prior to such periods, all payments of base or minimum rent received from
such tenant shall be applied to sums owed Buyer before any part thereof shall be
treated as belonging to Seller. In the event that there remains any unpaid
tenant receivable other than base or minimum rent (including without limitation
any tax, CAM, insurance or percentage rent payments) for any period prior to
Closing, all payments received from any tenant in arrears (whether base or
minimum rent or any other amount) shall be applied first to any such sums owed
Buyer from such tenant before any part thereof shall be treated as belonging to
Seller.
5.3.2 In the event that any tenant of Seller or Buyer shall
hereafter apply or shall have heretofore applied for relief under the provisions
of any bankruptcy or similar laws for the protection of debtors, the provisions
of SECTION 5.3.1 shall not apply, and the parties shall have the right to seek
collection of their respective accounts, their entitlements being determined by
the Closing and the other provisions of this Agreement. Neither party shall have
the right to enter into any transactions that purport to compromise claims
belonging to the other, without the other party's prior written consent.
5.3.3 If at the Closing Date any tenants owe Seller any money
(i.e. reimbursements to Seller for payment of liens or violations on the
Property that were created by tenant(s) but that Seller is required hereunder to
satisfy in order to effectuate the sale of the Property), Seller shall have the
right, subsequent to the Closing, to collect such sums directly from the
tenants, including bringing lawsuits against the tenants (at Seller's sole
expense) for such collection (except that Seller is prohibited from bringing a
lawsuit against any tenant(s) to collect rent arrears; instead Buyer agrees to
use commercially reasonable efforts to collect such arrears on Seller's behalf);
provided, however, Seller agrees that any such legal action or collection shall
not include any disturbance of the possession, use or occupancy of the tenants
or any right to evict the tenants, whether pursuant to the lease provisions or
otherwise, and Buyer shall at Seller's expense join in any lawsuit and/or also
participate or cooperate with Seller in its collection attempts. Buyer will (at
Seller's expense) join in such a lawsuit or action only if the same does not
include or require disturbance of the possession of any tenants.
5.3.4 In the event Seller has granted rent concessions to
tenants under space lease(s) that would extend beyond the Closing Date, Buyer
shall receive credit for same.
5.4 The provisions of this Article 5 will survive Closing.
6. TITLE AND SURVEY.
6.1. Seller shall convey and Buyer shall accept, subject to the
right of Buyer to review and approve all title matters, documents and plats of
record in regard to the condition of title to
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the Property, title such as the Title Company will be willing to approve and
insure subject only to Permitted Exceptions as provided for in this Agreement.
Buyer acknowledges that it has heretofore received copies of Seller's existing
title insurance policy for the Real Estate (the "Existing Title Policy") and of
Seller's existing survey of the Real Estate (the "Existing Survey"). Promptly
following the execution of this Agreement, Buyer may (if it so elects) obtain
(at Buyer's sole expense) updates of the Existing Survey to the certification
standards described upon the Surveyor's certification attached hereto as Exhibit
13 and made a part hereof (such updated survey hereinafter referred to as the
"Updated Survey"); if Buyer does obtain such an Updated Survey, Buyer shall
cause it to be certified to Seller and Buyer shall promptly furnish Seller and
the Title Company with a copy thereof. Promptly following the execution of this
Agreement, Buyer shall also (at Buyer's sole expense) obtain a commitment for
ALTA Form B Fee Title Insurance (the "Title Commitment"); and Buyer shall
promptly cause the Title Company to furnish Seller with true accurate and
complete copies thereof (including true, accurate and complete copies of all
underlying title exception documents referenced therein). Not later than the
expiration of the Due Diligence Period, Buyer shall give Seller written notice
("Buyer's Title/Survey Notice") of any title exceptions which are contained in
the Title Commitment and/or the Survey which are not Permitted Exceptions.
Failure by Buyer to give Buyer's Title/Survey Notice (or to object to any matter
referenced in the Title Commitment) to Seller on or before said date shall
constitute Buyer's final and irrevocable approval of the condition of title (and
to any such unobjected to matter) in and to the Real Estate. If Buyer's
Title/Survey Notice shall be timely given Seller shall have a period of fifteen
(15) days following Seller's receipt of Buyer's Title/Survey Notice, to commence
to remove, correct, cure or satisfy (provided Seller does in fact elect to so
remove, correct, cure or satisfy) any title exceptions that were identified in
Buyer's Title/Survey Notice as not being Permitted Exceptions, it being
nevertheless agreed that Seller shall have no obligation to undertake any action
or to incur any expense in order to effectuate any such removal, correction,
cure or satisfaction (except that notwithstanding the foregoing Seller shall be
required to remove or discharge any fee mortgages or deeds of trust, as well as
any other liens in an ascertainable dollar amount ). In the event that Seller
elects not to attempt to remove, correct, cure or satisfy the matters raised in
Buyer's Title/Survey Notice, or if having elected to do so, does not within
thirty (30) days thereafter, (or such additional time as is reasonably necessary
(not to exceed an additional fifteen (15) days without Buyer's written consent)
to remove, correct, cure or satisfy the matter(s) so raised using commercially
reasonable good faith efforts) effectuate any such removal, correction, cure or
satisfaction as aforesaid (hereinafter called "title correction"), Buyer shall
have the right at its sole option either (a) to terminate this Agreement, in
which event the Deposit shall be returned to Buyer and neither party shall
thereafter have any further liability hereunder, or (b) to accept such title as
is disclosed by the Title Commitment and/or Survey without title correction and
without Survey correction and without any reduction to the Purchase Price,
thereby waiving any rights against Seller with respect thereto. Said election
shall be made by Buyer within three (3) days following Buyer's receipt of
written notification by Seller that Seller has not effectuated (or has elected
not to effectuate) title correction. In the event that Seller (even though under
no duty to do so) shall undertake title correction and/or Survey correction as
aforesaid, and shall be successful, this Agreement shall continue in full force
and effect and Buyer shall close the transaction contemplated hereby in
accordance with the terms hereof. In the event that Seller shall only be
partially successful in obtaining title and/or Survey correction, Buyer shall
have the same alternative rights as Buyer would have in the event Seller had
declined to seek title and/or Survey correction (as set forth above). Buyer
shall make its election within three (3) days after Buyer's receipt of written
notice from Seller to Buyer of the extent to which title and/or the Survey has
been corrected.
6.2 If at the Closing Date there may be any liens or encumbrances
which render title unmarketable or otherwise are not permitted title exceptions
hereunder, and which Seller is obligated or desires to pay and discharge, Seller
may use any portion of the balance of the Purchase Price to satisfy the same,
provided Seller shall simultaneously either deliver to Buyer at the Closing
instruments in recordable form and sufficient to satisfy such liens and
encumbrances of record together with the cost of recording or filing said
instruments; or provided that Seller has made arrangements with the title
company in advance of Closing, Seller will deposit with said company sufficient
monies, acceptable to and required by it to insure obtaining and the recording
of such satisfactions and the issuance of title insurance to Buyer either free
of any such liens and encumbrances, or with insurance against enforcement of
same out of the insured premises. The existence of any such liens and
encumbrances shall not be deemed objections to title, if Seller shall comply
with the foregoing requirements. Unpaid liens for taxes, water charges, sewer
rents and assessments which are the obligation of Seller to satisfy and
discharge shall be objections to title, and thus the amount thereof, plus
interest and penalties thereon, shall be deducted from the Purchase Price to be
paid hereunder and allowed to Buyer, subject to the provisions for apportionment
of taxes, water charges and sewer rents contained herein. Unpaid franchise tax
of any entity in the chain of title to which such tax is applicable, or estate,
income or other taxes which may be liens against the Property as of the Closing
Date shall not be an objection to title, provided the title company agrees to
insure against the collection of said taxes from the Property and in such event
if required by the title company, Seller agrees to deposit at Closing with the
title company an amount deemed reasonable by it to secure the payment of such
unpaid franchise tax, or other tax.
7
6.3 In the event that Seller is unable to convey title in
accordance with the terms of this Agreement, or if any representation of Seller
herein is untrue in a material respect on the Closing Date and Seller does not
correct same (it being understood Seller will be entitled to a reasonable
adjournment of Closing for such purpose, not to exceed fifteen (15) days), the
sole responsibility of Seller will be to refund (or cause to be refunded by the
Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon
the making of such refund, this Agreement shall be deemed canceled, neither
party shall have any further claim against the other by reason of this
Agreement, except that Buyer shall remain liable on its obligations under
Sections 4.2 and 15.8.
6.4 All costs of obtaining the Title Commitment, the policy of
title insurance to issue at Closing (in form subject to Buyer's sole discretion,
and agreed to prior to the expiration of the Due Diligence Period) with premium
up to the amount of the Purchase Price the costs of any excess coverage or
endorsements includes Zoning 3.1; Survey; Access, Usury, Location, Tax ID,
Contiguity, EPA, Comprehensive and Doing Business shall be borne by Buyer (the
"Title Policy") and Survey shall be borne by Buyer, expressly excluding
therefrom, however, the costs to release any monetary encumbrance affecting the
Property and any title curative endorsements which shall be borne by Seller.
7. DAMAGE, DESTRUCTION OR REQUIRED ALTERATION.
7.1 Prior to Closing, in the event of any damage to or
destruction of all or part of the Real Estate (notice of which shall be given to
Buyer by Seller as soon as practicable following its occurrence), then Seller
shall have the right (but not the obligation) to adjourn the Closing Date for up
to sixty (60) days in order to repair or replace such damage or destruction,
except that if the cost of such repair or replacement exceeds ten percent of the
Purchase Price, then in any such case (i) Buyer shall have the right to
terminate this Agreement by giving Seller written notice of its intention to do
so, such notice by Buyer to Seller to be given not later than three (3) days
after Buyer shall have received the notice from Seller of such aforesaid
occurrence, (in which event the Deposit shall forthwith be returned to Buyer,
whereupon this Agreement shall be null and void and of no further force or
effect whatsoever, except that Buyer shall remain liable on its obligations
under Sections 4.2 and 15.8); or (ii) if Buyer elects not to (or does not have
the right to) terminate this Agreement, this Agreement shall continue in full
force and effect except that at Closing Buyer shall receive an abatement of the
Purchase Price in an amount equal to Seller's reasonable good faith estimate of
the amount required to repair and restore all unrepaired damage (and Seller
shall retain all rights to collect insurance proceeds for such loss). Buyer may
elect to have its architect provide a good faith estimate of the amount required
to repair and restore all unrepaired damage. If Seller's estimate disagrees with
Buyer's architect's estimate, the parties shall select another architect to make
a final determination of the amount required to repair and restore all
unrepaired damage and both parties shall be bound by the third architect's
determination. The party whose architect differs most from the third architect's
determination shall pay the third architect's fee.
7.2(a) In the event that any governmental authority having
jurisdiction of all or part of the Real Estate has notified Seller before the
Closing that some alteration of or addition to the Real Estate is required to be
made by law, rule or regulation (notice of which shall be given to Buyer by
Seller as soon as practicable after its receipt) or otherwise requires a cure of
a violation, then (subject to the provisions of Section 7.2(b)) Seller shall
have the right (but not the obligation) to undertake such alteration or addition
or cure; provided, however, that if the cost of such alteration or addition or
cure shall exceed the sum of one (1%) percent of the Purchase Price, then in
such event Seller may either elect to pay the entire cost and cure the same
before the Closing or may decline to undertake the same, in which event Buyer
shall have the option, exercisable within three (3) days following notice from
Seller of the requirement and Seller's refusal to comply therewith, (i) to
terminate this Agreement by giving Seller notice thereof (in which event the
Deposit shall forthwith be returned to Buyer, whereupon the Agreement shall be
null and void and of no further force or effect whatsoever, except that Buyer
shall remain liable on its obligations under Sections 4.2 and 15.8); or (ii) if
such notice of termination is not timely given, to proceed with the Closing, in
which event the Purchase Price shall be reduced by Seller's reasonable good
faith estimate of the cost to cure, up to the maximum sum of one percent of the
Purchase Price. Buyer may elect to have its engineer provide a good faith
estimate of the cost to cure. If Seller's estimate disagrees with Buyer's
architect's estimate, the parties shall select a another engineer to make a
final determination of the cost to cure and both parties shall be bound by the
third engineer's determination. The party whose engineer differs most from the
third engineer's determination shall pay the third engineer's fee.
(b) Notwithstanding the foregoing provisions of Section
7.2(a), Seller may elect but shall have no obligation to cure or pay for, , any
violation which either (i) is first placed (i.e., notice first given to Seller
or first placed of record) after the date of this Agreement, or (ii) is the
8
responsibility of a Shopping Center tenant to cure or discharge pursuant to its
Space Lease. In the event Seller elects to cure or pay for such violation(s),
Seller shall have a period of fifteen (15) days after receipt of notice of the
violation to commence to cure or pay for same, and shall proceed with diligence
to cure same, however, if Seller elects to cure a violation, and Seller
reasonably believe that the Closing Date (as hereinafter defined) will need to
be extended more than thirty (30) days to effectuate the cure, then Seller shall
not commence to cure the violation then Buyer may elect to (i) complete the
purchase without any adjustment in the Purchase Price or (ii) terminate the
Agreement in such event, unless Buyer agrees to the required extension. In the
event Seller elects not to cure or pay for such violation, the sole
responsibility of Seller will be to refund (or cause to be refunded by the
Escrow Agent) to Buyer any amount paid on account of the Purchase Price; upon
the making of such refund, this Agreement shall be deemed cancelled, neither
party shall have any further claim against the other by reason of this
Agreement, except that Buyer shall remain liable on its obligations under
Sections 4.2 and 15.8.
8. EMINENT DOMAIN. In the event that any eminent domain proceedings shall
be commenced prior to the Closing affecting (i) any of the parking area(s)
within the Real Estate or any access roadway serving the Real Estate that is not
replaced by an access roadway in a comparable location with respect to the Real
Estate; or (ii) which is of such a nature as would permit any tenant occupying
leased premises to cancel its Space Lease, Buyer shall have the right to
terminate this Agreement, by written notice given to Seller within three (3)
days after the event, (in which case the Deposit shall forthwith be returned to
Buyer, whereupon the Agreement shall be null and void and of no further force or
effect whatsoever). In any case wherein Buyer has the right to terminate this
Agreement pursuant to this Section 8 and Buyer elects not to terminate, or in
any case wherein Buyer does not have the right to terminate, Buyer and Seller
shall consummate Closing on the Closing Date, without any reduction to or
abatement of the Purchase Price, and all theretofore unpaid condemnation awards
shall belong to Buyer.
9. NO ASSIGNMENT. Buyer shall not have the right to assign this Agreement
or its rights under this Agreement without obtaining in each instance Seller's
prior written consent. Notwithstanding the foregoing, Buyer shall have the
right, without Seller's consent, to assign its entire right, title and interest
in and to this Agreement, expressly including the Deposit, to any entity
controlling, controlled by, or under common control with Buyer or Inland Real
Estate Trust, Inc., a Maryland corporation, (an "Affiliate"); provided that, not
less than three (3) business days prior to Closing, Seller receives an executed
assignment and assumption agreement, in a commercially reasonable form , which
expressly assigns the Deposit and in which such assignee expressly assumes
performance of this Agreement for the benefit of Seller. No such assignment or
designation shall relieve or release Buyer from any obligations under this
Agreement (whether arising pre- or post-closing), and Buyer shall remain jointly
and severally liable for all of same together with such assignee.
10. COVENANTS AND REPRESENTATIONS. As of the date hereof, and to the best
of Seller's knowledge, Seller covenants, warrants and represents to Buyer the
following:
10.1 Seller has obtained any consents from partners and/or
shareholders required to permit the transactions contemplated by this Agreement
including the sale of the Property to Buyer.
10.2 There is no pending or threatened litigation affecting the
Property brought by or against Seller that would materially adversely affect
Buyer except as set forth in EXHIBIT 7 attached hereto and made a part hereof.
If Seller is served with process or receives notice that litigation relating to
the Property has been commenced against it, Seller shall promptly notify Buyer.
The provisions of this Section shall not apply to any litigation relating to the
property involving personal injury or property damage(s) covered by insurance.
10.3 The Space Leases described in EXHIBIT 2 comprise all the Space
Leases presently existing, and same have not been materially amended or modified
except (if at all) as may be set forth in Exhibit 2. Seller has neither given
nor received any outstanding, uncured notice of default to or from any Space
Lease tenant. Following a date which is five (5) business days prior to the
expiration of the Due Diligence Period (the "Cut Off Date"), and prior to
Closing, Seller will not, without the prior written consent of Buyer(which Buyer
agrees not to reasonably withhold or delay), cancel (except for default by a
tenant) or materially amend any Space Lease, or enter into any new Space Lease
or any Service Contract affecting the Property not cancelable on 30 days notice.
On or prior to the Cut Off Date, Seller may take any of the foregoing actions
without Buyer's consent, provided it delivers a copy of any new documentation
evidencing same to Buyer not later than three (3) business days prior to the
expiration of the Due Diligence Period.
10.4 Except as otherwise expressly provided herein, there are no
contracts or agreements affecting the Property other than the Service Contracts,
Space Leases and Permitted Exceptions; and there are no on-site employees or
hired persons in connection with the management,
9
operation or maintenance of the Property; and Buyer shall have no obligation,
liability or responsibility with respect to charges, salaries, vacation pay,
fringe benefits or like items subsequent to Closing, nor with any management or
employment agreements with respect to the Property.
10.5 The signatories to this Agreement on behalf of Seller have the
power and authority to enter into this Agreement and to bind Seller to the
provisions hereof.
10.6 As of the date hereof: (i) to Xxxxx Xxxxxx'x knowledge Seller
is not aware of and has receive no building code violation notices with respect
to the Property (other than notices of violations which have been removed or
corrected); and (ii) to Xxxxx Xxxxxx'x knowledge Seller is not aware of and has
received no notices of any action or governmental proceeding in connection with
eminent domain, or for a zoning change, which would affect the Property; and
(iii) to Xxxxx Xxxxxx'x knowledge Seller is not aware of any structural problems
in the improvements constructed upon the Property and the exterior structures
are in good condition and repair.
10.7 Seller represents that there are no payment or performance
obligations outstanding of Seller under the Development Agreement and that there
are no such other like unrecorded development agreements.
11. THE CLOSING.
11.1 The Closing shall be held at the Title Company's offices (at
the address set forth above) at 9:00 A.M. on the Closing Date. The Closing Date
shall be ten (10) business days after the expiration of the Due Diligence
Period.
11.2 At Closing, Buyer shall pay the Purchase Price as adjusted in
accordance with the provisions of this Agreement; and Buyer shall execute and
deliver such other instruments as Seller may reasonably request in connection
with or to consummate the transactions contemplated by this Agreement.
11.3 (A) At Closing, Seller shall deliver to Buyer the
following:
(a) A special warranty deed in favor of Buyer for the Real Estate
in proper recordable form, duly executed and acknowledged by Seller.
(b) A F.I.R.P.T.A. affidavit.
(c) It shall be a condition precedent to Buyer's obligation to
remit the remainder of the Purchase Price to the Title Company on the Closing
Date and effectuate the transaction contemplated herein that on or before the
third (3rd) business day prior to the Closing Date, Buyer shall have received an
estoppel certificate from each tenant under a Space Lease who occupies more than
eight thousand (8,000) square feet (hereinafter "Anchor Tenant"), as well as
from seventy (70%) percent of the tenants occupying less than eight thousand
(8,000) square feet (each such tenant hereinafter referred to as a "Non-Anchor
Tenant") (collectively such Non-Anchor Tenants hereinafter referred to as the
"Minimum Threshold"), each such estoppel to be dated not more than 30 days prior
to the Closing Date, in either the form required by its Space Lease, or
otherwise in the form attached hereto as Exhibit 10, and made a part hereof, as
well as Seller's estoppel in the form of Exhibit 10 for any tenant (other than
an Anchor Tenant and so long as the Minimum Threshold is met) not delivering an
estoppel as required to achieve one hundred percent (100%) estoppel delivery for
the Property. . If Seller is unable to obtain any such required estoppel from a
tenant prior to Closing, Seller shall deliver its own estoppel in the form
attached as Exhibit 10 (provided, however, Buyer shall not be obligated to
accept Seller's estoppel for any Anchor Tenant nor for more than thirty (30%)
percent of the Non-Anchor Tenants at the Property), which shall survive Closing
(but if post-Closing Seller delivers any such tenant estoppel, Seller shall be
relieved from responsibility under any Seller estoppel it delivered regarding
all matters confirmed by such tenant estoppel). If Seller fails to deliver any
such required estoppel, Seller shall have no liability by reason thereof
provided, however that Seller shall not be required to deliver its own estoppel
containing an assertion that Seller in good faith believes to be untrue, and
Buyer's sole right shall be to terminate this Agreement and to obtain a refund
of the Deposit as set forth in Section 14.3. If any estoppel certificate is
dated earlier than forty (40) days prior to the Closing Date, in lieu of
requiring Seller to obtain a new estoppel from the subject tenant(s), which
shall be required of Seller if any estoppel certificate is dated earlier than
sixty (60) days prior to the Closing Date, Buyer agrees that Seller may deliver,
at Closing, its representation that to the best of Seller's knowledge, the facts
in said estoppel remain true in all material respects as of the Closing Date.
(d) Seller shall use its commercially reasonable good faith
efforts to obtain, prior to the expiration of the Due Diligence Period, an
estoppel certificate from each party to, or affected by any
10
declaration, ASSOCIATION, reciprocal easement, or like agreement affecting the
Property (hereinafter "REA estoppel"). Seller will request that the estoppel be
in a form substantially similar to the form attached hereto as Exhibit 11 and
made a part hereof. In the alternative, within five (5) days of the date this
Agreement is fully executed by Seller and Buyer, Seller shall provide Buyer with
the necessary information for each REA party such that during the Due Diligence
Period, Buyer may request the REA estoppel from the REA parties directly. In the
event Seller and Buyer are unable to obtain these estoppels despite Seller's
commercially reasonable good faith efforts prior to the expiration of the Due
Diligence Period, Seller may deliver and Buyer may accept (although nothing
contained herein shall require Buyer to accept), its own estoppel in the form
attached as Exhibit 11, which shall survive Closing (but if post-Closing Seller
delivers any such REA estoppel, Seller shall be relieved from responsibility
under any Seller estoppel it delivered regarding all matters confirmed by such
"REA" estoppel).
(c) It shall be a condition precedent to Buyer's obligation to remit
the remainder of the Purchase Price to the Title Company on the Closing Date and
effectuate the transaction contemplated herein that on or before the third (3rd)
business day prior to the Closing Date, Buyer shall have received an assignment
of all warranties and guaranties, if available, for materials and workmanship
benefiting the Property, including an acknowledgment by the material and/or
service provider of the acceptance of the assignment where required by the terms
of the warranty and/or guaranty, with all fees and costs of such assignment (and
inspection, if required) (not to exceed One Thousand Dollars ($1,000.00)) being
paid at the sole cost and expense of Seller; any such costs or fees in excess of
One Thousand Dollars ($1,000.00) being shared equally between the parties
hereto.
(B) At Closing, Seller and Buyer shall each execute and
deliver to the other the following:
(a) An Assignment and Assumption Agreement for the Space Leases in
the form of EXHIBIT 4 attached hereto.
(b) An Assignment and Assumption Agreement for the Service
Contracts, in the form of EXHIBIT 5 attached hereto.
(c) Notices to tenants, in the form attached hereto as Exhibit 14,
and made a part hereof, notifying them of the sale and (if applicable)
the transfer of their security deposit to Buyer.
(d) A Master Lease for a term expiring on the earlier of (i)
twelve (12) months or (ii) such date as Seller leases the remaining
vacant space to achieve 100% Lease-up of the Rent Roll. However
subject to the terms of the immediately following sentence,
notwithstanding the rent rate per square foot set forth in the Rent
Roll for the vacant space in the event Seller leases a portion of said
vacant space at a per square foot rate that is greater than provided
for on the Rent Roll, then it shall have the right to lease other
vacant space at a lesser rate per square foot than as shown on the
Rent Roll up to the excess rent so achieved. Lease-up of the Property
shall in no event yield an average Fixed Rent and Reimbursements
amount that is less than the sum of Fixed Rent and Reimbursements per
the Rent Roll. The Master Lease shall be in the form of Exhibit 8
attached hereto and shall incorporate that portion of the Property
vacant space for which a bona fide Space Lease(s) has not been
executed as of the date of Closing with the "Tenant Conditions" (as
hereinafter defined) having been satisfied. For the purposes hereof,
the Tenant Conditions for any Property vacant space gross leasable
area are hereby defined as (i) a signed lease, and (ii) with Tenant
either paying full rent and reimbursements or the all conditions
precedent to Rent Commencement Date (as defined in such tenant lease)
shall have occurred or been satisfied and (iii) with all the leasing
commissions and tenant improvement allowances either paid for by
Seller or credited to Buyer and (iv) with a certificate of occupancy
or its equivalent occupancy permit issued by the local governmental
authorities, for such tenant's respective demised premises. If a bona
fide Space Lease for the Vacant Space or any portion thereof with the
Tenant Conditions satisfied is executed prior to the Closing Date,
the parties shall either not enter into a Seller Lease or the
applicable provisions thereof (including but not limited to the annual
base rent) shall be adjusted accordingly to reflect that portion of
the Vacant Space that is leased and thus released and not covered by
the Master Lease. It is the intent of the parties that the Master
Lease shall be for all Property vacant space notwithstanding the
foregoing in calculating the sums due under the Master Lease same
shall be reduced by Thirty Eight Thousand and 00/100 ($38,000). Seller
acknowledges and agrees that it shall be responsible for placing all
vacant space in Vanilla Box condition however, it may be satisfied by
second generation space in "as is" condition such that a tenant has
already occupied same, and needn't be in "new" condition.
11
(e) The Buyer Declaration.
11.4 Each party shall pay its own legal fees and travel and lodging
expenses in connection with this transaction. Seller shall pay for all transfer
taxes and the parties shall each pay 1/2 of the documentary stamps or recording
charges for transfer of title to the Real Estate and the "New York Style"
closing escrow fees charged by the Title Company.
11.5 Buyer also agrees to cooperate with Seller to permit the
conveyance of the Property to be consummated as a part of a transaction intended
by Seller to qualify as a tax-free exchange under Section 1031 of the Internal
Revenue Code and in conjunction therewith to execute such documents as Seller
may reasonably request (such cooperation may include, without limitation,
accepting a conveyance from a party other than Seller and paying the Purchase
Price to a party other than Seller). In no event, however, shall (a) Buyer bear
any expense associated with the exchange transaction, (b) Buyer be obligated to
take title to Seller's exchange property, (c) the consummation of such tax-free
exchange materially delay the conveyance to Buyer of the Property, (d) Buyer
have any liability to Seller or any other party for the qualification of the
exchange transaction for tax-free exchange treatment under Section 1031 of the
Internal Revenue Code or under any other provision and (e) the consummation of
such tax free exchange relieve Seller of any of its obligations hereunder.
11.6 Buyer acknowledges and agrees that any and all sales tax
inducements and "Rebate of Costs" as provided for in the Development Agreement,
some of which may be allocated for Improvement located on the Real Estate,
belong to Seller.
12. BROKERS.
Each party represents and warrants to the other that it dealt with no
broker other than Kimco Exchange Corporation (the "Broker") in connection with
this transaction. Seller shall pay Broker pursuant to a separate agreement. Each
party agrees to defend, indemnify and hold the other harmless from and against
any and all loss, liability and expense, including reasonable attorney's fees,
that the indemnitee may incur arising by reason of the above representation by
the indemnitor being false. The provisions of this Section 12 shall survive
Closing.
13. NOTICES. All notices, demands, requests, consents, approvals or
other communications (for the purpose of this Section collectively called
"Notices") required or permitted to be given hereunder or which are given with
respect to this Agreement shall be valid only if in writing and sent by
registered or certified United States mail, return receipt requested, postage
prepaid, or delivered by Federal Express or UPS courier service, addressed as
follows:
To Seller: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
3333 New Hyde Park Road
Suite 000
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
and a copy to: Xxxxxxx Group
00000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
To Buyer: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx Xxxxxxxx, XX, 00000
Phone: (000) 000-0000
12
Fax: (000) 000-0000
Attention: G. Xxxxxx Xxxxxxx
with a copy to:
The Inland Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxx, General Counsel
Facsimile Nos: (000) 000-0000
Copy via facsimile:
Xxxxxxx X. Xxxxxxxxx (000) 000-0000
To Escrow Agent: CHICAGO TITLE & TRUST COMPANY
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Escrow Agent
Phone: (000) 000-0000
Fax: (000) 000-0000
or such other address as such party shall hereafter have specified by Notice
given by the same means. Any Notice shall be deemed given when delivered to the
carrier delivering same, delivery charges prepaid, and properly sealed and
addressed. Any Notice may also be given by telecopier to the following numbers:
Seller (000) 000-0000, Buyer (000) 000-0000, (000) 000-0000, and (630)
218-4900;, and Escrow Agent (000) 000-0000, Attn: Xxxxx Xxxxxx, provided that a
"hard copy" of such notice is sent within one (1) business day after such
telecopier transmission in the manner above set forth; and in the case of notice
by telecopier (with confirmation sent as aforesaid), notice shall be deemed
given upon electronic confirmation of receipt.
14. DEFAULTS.
14.1 If Closing does not take place because of Buyer's default the
Deposit shall be retained by Seller as agreed upon liquidated damages as
Seller's sole remedy for such default, and thereupon this Agreement shall be
null and void and of no further force or effect whatsoever (except that Buyer
shall remain liable on its obligations under Sections 4.2 and 15.8). The parties
hereto expressly agree that Seller's actual damages in the event of a default by
Buyer would be extremely difficult or impractical to ascertain and that the
amount of the Deposit represents the parties' reasonable estimate of such
damages.
14.2 If Closing does not occur due to Seller's willful default and
refusal to close despite Buyer's willingness to do so (such willingness includes
waiver by Buyer of any uncured title objection properly made by Buyer under
Section 6.1 or material breach of representation or warranty by Seller) (such
willful default and refusal being hereinafter referred to as a "Seller
Default"), then Buyer, as its sole and exclusive right and remedy as a result of
such Seller Default, may elect to either (i) cancel this Agreement, in which
event the Deposit shall be returned to Buyer, Seller shall be liable for any
title and survey costs, as well as environmental site assessment, appraisal and
legal fees theretofore incurred by Buyer (however Seller shall not be obligated
to reimburse Buyer more than Twenty-Five Thousand Dollars ($25,000.00) in the
aggregate for such environmental site assessment, appraisal and legal fees), and
thereupon no party shall have any further right or obligation hereunder (except
that Buyer shall remain liable on its obligations under Sections 4.2 and 15.8),
or (ii) Buyer may enforce specific performance of this Agreement without any
reduction or abatement of the Purchase Price, together with the right of Buyer
to collect its reasonable attorney's fees and costs of suit, subject to the
limitation on Landlord's reimbursement of same described above.
14.3 Subject to the provisions of Article 14.1 and 14.2 above, if
Closing should not occur for any reason whatsoever other than a default by Buyer
or a Seller Default (including without limitation by reason of a material breach
of representation or warranty of Seller or an uncured title objection properly
made by Buyer under Section 6.1, or a failure to deliver any tenant estoppel
required hereunder) which Buyer is not willing to waive, then in such event this
Agreement shall be and be deemed cancelled, the Deposit shall be returned to
Buyer, and thereupon Buyer shall have no other right, by way of damages or
otherwise, against Seller notwithstanding the existence of any failure or breach
of representation, warranty, covenant, title, provision of estoppel or other
Closing condition (provided that Buyer will remain liable on its obligations
under Sections 4.2 and 15.8).
15. MISCELLANEOUS.
13
15.1 The representations, warranties and covenants contained in
Article 10 of this Agreement shall survive delivery of the deed for a period of
twelve (12) months. Other than the survival of such representations, warranties
and covenants, the acceptance of the deed by Buyer shall be conclusive evidence
of the performance by Seller of all of the provisions of this Agreement to be
performed by Seller.
15.2 This Agreement (including the Exhibits attached hereto)
contains the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous understandings, if
any, with respect thereto.
15.3 This Agreement may not be canceled, modified, changed or
supplemented, nor may any obligation hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing.
15.4 The parties do not intend to confer any benefit hereunder on
any person, firm or corporation other than the parties hereto and their
respective successors or assigns.
15.5 "TIME IS OF THE ESSENCE" with respect to all provisions of
this Agreement, with the sole exception that each of Buyer and Seller shall be
entitled to a single adjournment (not to exceed two (2) business days in any
event) of the Closing Date.
15.6 This Agreement shall extend to and be binding upon the legal
representatives, heirs, executors, administrators and, subject to the provisions
of this Agreement, the permitted assigns of the parties hereto.
15.7 Intentionally Deleted.
15.8 Buyer represents and warrants that it will keep all
information and/or reports and/or documents obtained from Seller or its agents
(including without limitation the rent and other terms of the Space Leases), or
related to or connected with the Property (including without limitation the
existence of this Agreement and the Purchase Price) strictly confidential and
will not disclose any such information to any person or entity (except for
Buyer's attorneys, consultants and advisors and except as required by law;
provided that any such parties similarly agree to treat such material
confidentially), without the prior written consent of Seller. In amplification
and not in limitation of the foregoing, Buyer may not make any public disclosure
of the existence or terms of this Agreement prior to Closing.
15.9 This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with, the laws of the State wherein the
Property is located. This Agreement shall be construed in accordance with its
plain meaning and without reference to any maxim or rule of interpretation
providing that a writing should be construed against the party responsible for
the drafting thereof.
15.10 This Agreement shall not be recorded or filed in the public
records of any jurisdiction by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
15.11 This Agreement may be executed in one or more counterparts,
each of which when so executed and delivered shall be deemed
an original.
16. Conditions Precedent to Buyer's Obligation.
In addition to the conditions precedent described in Article 11.3(A)
(c), (d) & (e), Buyer's obligation to remit the remainder of the
Purchase Price to the Title Company on the Closing Date and effectuate
the transaction contemplated hereunder is subject to and contingent
upon the following:
(a) The Title Company's issuing or committing to issue the Title
Policy insuring that fee simple title to the Property is vested
in Buyer as required in Article 6 hereof;
(b) The completeness, truth and accuracy in all material respects and
to the best of Xxxxx Xxxxxx'x knowledge of the Rent Roll, and any
certifications, schedules, covenants and statements prepared and
executed by Seller as part of the Pre-Closing Deliveries, the
completeness in all material respects and to the best of Seller's
knowledge of the Space Leases delivered by Seller as part of the
Pre-Closing Deliveries, the completeness, truth and accuracy in
all material respects and to the best of Seller's knowledge as of
Closing, of the representations and warranties of
14
Seller contained in Section 10 hereof, and the performance by
Seller, to the extent possible by the date of Closing, of the
covenants contained in Section 10 hereof. It shall be a condition
to Buyer's obligation to close with respect to the Property that,
at the Closing, Seller shall deliver to Buyer a Certificate that
shall confirm, to the best of Seller's knowledge, the truth and
accuracy in all material respects, as of Closing, of Seller's
representations contained in this Agreement, and the
representations contained in such certificate, as well as any
continuing obligations of Seller hereunder, shall survive the
Closing for a period of twelve (12) months; and
(c) That as of the date of closing: (i) neither Seller, as landlord
under the Space Leases, nor any tenant thereunder, shall be in
material default under the terms of any Space Lease and (ii) and
eighty-five percent (85%) of the Property gross leasable area
being leased to tenants with the Tenant Conditions satisfied.
[SEE SIGNATURE BLOCKS ON NEXT PAGE]
15
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
day and year first above written.
BUYER: INLAND REAL, ESTATE
ACQUISITIONS, INC.
WITNESSES:
By: /s/ G. Xxxxxx Xxxxxxx
----------------------- --------------------------------------
Name: G. Xxxxxx Xxxxxxx
Title: President
----------------------- Date of Execution: 1-7-04
--------------------
SELLER: KIMCO XXXXXXX PEORIA
CROSSING, L.P.
BY: KIMCO PEORIA 476, INC.
ITS GENERAL PARTNER
WTTNESSES:
[ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxxxx
----------------------- --------------------------------------
Name: XXXXX X. XXXXXXXX
[ILLEGIBLE] Title: Vice President
----------------------- Date of Execution:
--------------------
Escrow Agent signs to confirm its
agreement with the provisions of
Section 3(A)(ii) hereof;
WITNESSES: ESCROW AGENT: CHICAGO TITLE & TRUST
COMPANY
By:
----------------------- --------------------------------------
Name: Xxxxx Xxxxxx
Title:
----------------------- Date of Execution:
--------------------
16
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
day and year first above written.
BUYER: INLAND REAL ESTATE
ACQUISITIONS, INC.
WITNESSES:
By: /s/ [ILLEGIBLE]
----------------------- --------------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
----------------------- Date of Execution: 1-7-04
--------------------
SELLER: K1MCO XXXXXXX PEORIA
CROSSING, L.P.
BY: KIMCO PEORIA 476, INC.
ITS GENERAL PARTNER
WITNESSES:
By:
----------------------- --------------------------------------
Name:
Title:
----------------------- Date of Execution:
--------------------
Escrow Agent signs to confirm its
agreement with the provisions of
Section 3(A)(ii) hereof:
WITNESSES: ESCROW AGENT: CHICAGO TITLE & TRUST
COMPANY
By:
----------------------- --------------------------------------
Name: Xxxxx Xxxxxx
----------------------- Title:
Date of Execution:
--------------------
16
SCHEDULE OF EXHIBITS
1. Real Estate
2. Space Leases
3. Service Contracts
4. Assignment and Assumption Agreement - Space Leases
5. Assignment and Assumption Agreement - Service Contracts
6. Permitted Exceptions
7. Schedule of Litigation
8. Form of Master Lease
9. Site Plan of Vacant Space
10. Form of Tenant and Guarantor Estoppel
11. Form of REA estoppel
12. Due Diligence Checklist
13. Surveyor's Certification
14. Tenant Notice Letter
15. Intentionally Deleted
17
EXHIBIT 1
REAL ESTATE
[TO FOLLOW]
See Site Plan
18
Job No.:81566014
Date: 11/18/03
DESCRIPTION
XXX 0
XXXXXX XXXXXXXXX
A portion of the Southeast Quarter of Section 33, Township 3 North, Range 1 East
of the Gila & Salt River Base & Meridian, Maricopa County, Arizona, more
particularly described as follows:
COMMENCING at the Southeast corner of said Section 33;
Thence S.88 DEG.40'25"W., a distance of 1992.52 feet along the South line of the
Southeast Quarter of said Section 33;
Thence departing said South line X.00 XXX.00'00"X., a distance of 65.02 feet to
the POINT OF BEGINNING;
Thence S.88 DEG.40'25"W., a distance of 106:88 feet along a line 65.00 feet
North of and parallel to the South line of said Section 33;
Thence N.00 DEG.00'00"E., a distance of 69.11 feet to a Point on a Curve, the
central point bears X.00 XXX.00'00"X., a distance of 392.02 feet from said Point
on a Curve;
Thence Northeasterly along said curve being concave to the Southeast, through a
central angle of 26 DEG.55'20", having an arc length of 184.20 feet;
Thence departing said curve N.59 DEG.21'32"W., a distance of 261.62 feet;
Thence S.00 DEG.00'54"W., a distance of 385.34 feet;
Thence S.88 DEG.40'25"W., a distance of 34.98 feet;
Thence X.00 XXX.00'00"X., a distance of 350.09 feet;
Thence S.88 DEG.40'25"W., a distance of 276.30 feet;
Thence X.00 XXX.00'00"X., a distance of 560.69 feet;
Thence X.00 XXX.0x'00"X., a distance of 422.86 feet;
Thence S.90 DEG.00'00"E., a distance of 224.79 feet;
Thence S.00 DEG.00'00"W., a distance of 321.72 feet;
Thence S.90 DEG.00'00"E., a distance of 83.84 feet;
Thence S.00 DEG.00'00"W., a distance of 416.56 feet to a Point on a Curve, the
central point bears S.07 DEG.59'33"E., a distance of 359.24 feet from said Point
on a Curve;
Thence Easterly along said curve being concave to the South, through a central
angle of 04 DEG.11'44", having an arc length of 26.31 feet;
Thence departing said curve S.90 DEG.00'00"E., a distance of 4.10 feet;
Thence S.00 DEG.00'00"W., a distance of 16.62 feet;
Thence S.84 DEG.27'36"W., a distance of 15.37 feet;
Thence S.79 DEG.05'53"W., a distance of 38.73 feet;
Thence S.74 DEG.10'14"W., a distance of 19.46 feet;
Thence S.68 DEG.08'00"W., a distance of 34.11 feet;
Thence S.61 DEG.l1'42"W., a distance of 29.63 feet;
Thence S.53 DEG.26'55"W., a distance of 55.73 feet;
Thence S.45 DEG.01'39"W., a distance of 74.58 feet;
Thence S.40 DEG.30'40"W., a distance of 27.55 feet;
Thence S.22 DEG.51'42"W., a distance of 17.45 feet;
Thence S.28 DEG.12'57"W., a distance of 13.61 feet;
Thence S.00 DEG.00'00"W., a distance of 226.31 feet to the POINT OF BEGINNING;
Said Lot containing 523,102 square feet or 12.01 acres more or less and being
subject to any easements, restrictions or rights-of way of record or otherwise.
AMENDED PLAT
OF
"PEORIA CROSSINGS"
XXXX 0, 0, 0, 0, 0, 0, 00, 00, 13, 14, 15, 20 AND 23
AS RECORDED IN BOOK 649, PAGE 14 MARICOPA COUNTY RECORDS
AND LOCATED IN A PORTION OF THE SOUTHEAST QUARTER OF
SECTION 33, TOWNSHIP 3 NORTH, RANGE 1 EAST OF THE
GILA AND SALT RIVER BASE AND MERIDIAN, MARICOPA COUNTY, ARIZONA.
[GRAPHIC]
[ILLEGIBLE]
Job No.: 81505020
Date: 11/18/03
DESCRIPTION
XXX 0
XXXXXX XXXXXXXXX
A portion of the Southeast Quarter of Section 33, Township 3 North, Range 1 East
of the Gila & Salt River Base & Meridian, Maricopa County, Arizona, more
particularly described as follows:
COMMENCING at the Southeast corner of said Section 33;
Thence N.00 DEG.0l'24"W., a distance of 1323.31 feet along the East line of the
Southeast Quarter of said Section 33;
Thence departing said East line S.88 DEG.32'54"W., a distance of 637.28 feet
along the North line of the South Half of said Southeast Quarter to the POINT OF
BEGINNING;
Thence S.01 DEG.27'06"E., a distance of 132.38 feet;
Thence S.00 DEG.00'00"W., a distance of 161.80 feet;
Thence N.90 DEG.00'00"W., a distance of 138.00 feet;
Thence S.00 DEG.00'00"W., a distance of 158.54 feet;
Thence S.14 DEG.35'09"E., a distance of 82.29 feet;
Thence S.11 DEG.14'19"E., a distance of 82.16 feet;
Thence S.26 DEG.58'12"E., a distance of 31.05 feet;
Thence S.00 DEG.00'06"W., a distance of 378.67 feet to a Point on a Curve, the
central point bears S.60 DEG.10'44"W., a distance of 265.03 feet from said Point
on a Curve;
Thence Northwesterly along said curve being concave to the Southwest, through a
central angle of 29 DEG.59'36", having an arc length of 138.74 feet to a Point
on a Curve, the central point bears S.29 DEG.57'19"W., a distance of 395.51
feet from said Point on a Curve;
Thence Northwesterly along said curve being concave to the Southwest, through a
central angle of 31 DEG.48'26", having an arc length of 219.56 feet;
Thence departing said curve N.90 DEG.00'00"W., a distance of 110.54 feet;
Thence X.00 XXX.00'00"X., a distance of 400.19 feet;
Thence S.90 DEG.00'00"E., a distance of 46.35 feet;
Thence N.00 DEG.00'01"W., a distance of 303.00 feet;
Thence N.01 DEG.23'23"W., a distance of 154.56 feet;
Thence N.88 DEG.32'54"E., a distance of 458.88 feet along said North line of the
South Half of said Southeast Quarter to the POINT OF BEGINNING.
Said Lot containing 363,336 square feet or 8.34 acres more or less and being
subject to any easements, restrictions or rights-of-way of record or otherwise..
[GRAPHIC]
Job No.: 81505020
Date: 12/16/03
DESCRIPTION
KOHL'S EXPANSION
PEORIA CROSSINGS
A portion of the Southeast Quarter of Section 33, Township 3 North, Range 1
East of the Gila & Salt River Base & Meridian, Maricopa County, Arizona,
more particularly described as follows:
COMMENCING at the Southeast corner of said Section 33;
Thence N.00 DEG.O1'24"W., a distance of 1323.31 feet along the East line of
the Southeast Quarter of said Section 33;
Thence departing said East line S.88 DEG.32'54"W., a distance of 691.94
feet along the North line of the South Half of said Southeast Quarter;
Thence departing said North line S.00 DEG.00'00"W., a distance of 162.75
feet to the POINT OF BEGINNING;
Thence continuing S.00 DEG.00'00"W., a distance of 250.00 feet;
Thence N.90 DEG.00'00"W., a distance of 80.00 feet;
Thence X.00 XXX.00'00"X., a distance of 250.00 feet;
Thence S.90 DEG.00'00"E., a distance of 80.00 feet to the POINT OF
BEGINNING.
Said Expansion containing 20,000 square feet or 0.459 acres more or less
and being subject to any easements, restrictions or rights-of-way of record
or otherwise..
EXHIBIT 2
SPACE LEASES
19
EXHIBIT 2
SPACE LEASES
1st Amendment 2nd Amendment
Date (If Date (If
Building Tenant Business Name Date of Lease Applicable) Applicable)
-------------------------------------------------------------------------------------------------------------------
Major A Petco Animal Supplies, Inc. Petco 02/07/02
Major B Michaels Stores, Inc. Michaels no date
Major C Xxxx Stores, Inc. Xxxx Dress For Less 08/09/02
Major X Xxxxx Group Retail, Inc. Famous Footwear 12/14/01
Major E The Dress Barn, Inc. Dress Bam 09/04/02
Major F Anna's Linen Company Anna's Linens 04/02/03
Major L Kohl's Department Stores, Inc. Kohl's May-02
Pad G 2 B Wireless, Inc. Voice Stream Wireless 12/04/01
Pad G Electronics Boutique of America, Inc. EB Games 03/05/02
Pad G Motherlode, Inc. M.E.E. Music 01/30/03
Pad G Shear Quality, Inc. Great Clips 06/25/01 04/28/03
Pad G Sleep America, Inc. Sleep America 07/20/01 10/28/02
Pad K Arizona Grande Cibo, Inc. Sarpino's Pizzeria 11/08/02 08/13/03
Pad K Cold Stone Creamery Leasing Company, Inc. Cold Stone Creamery 03/13/02 07/08/03 11/01/03
Pad K Xxxx Xxx Ha and Xxxxx X. Xxxxx Nail Salon 10/01/03
Pad K Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx It's A Grind draft
Pad K KSV Enterprises, LLC Quizno's 01/08/02
Pad K Panda Express, Inc. Panda Express 10/02
Pad K Supercuts, Inc. Supercuts 01/21/03
Shops A Claire's Boutiques, Inc. Claire's 11/07/02
Shops A Payless Shoesource, Inc. Payless ShoeSource 09/23/03
Shops A Xxxxx Beauty Company, Inc. Xxxxx Beauty Supplies 04/11/02
Building Tenant Other Documents (If Applicable)*
--------------------------------------------------------------------------------------------
Letter Agreement re: square footage
Major A Petco Animal Supplies, Inc. dated 02/11/03
Notice of Rent Commencement dated
11/02/02; Letter Agreement dated
Major B Michaels Stores, Inc. 05/22/02
Acknowledgement of Commencement dated
06/24/03; Memorandum of Lease dated
Major C Xxxx Stores, Inc. 08/13/02
Major X Xxxxx Group Retail, Inc.
Major E The Dress Barn, Inc.
Major F Anna's Linen Company
Major L Kohl's Department Stores, Inc. Memorandum of Lease dated May 7, 2002
Pad G 2 B Wireless, Inc.
Commencement Date Agreement dated
Pad G Electronics Boutique of America, Inc. 08/07/03
Pad G Motherlode, Inc. Guaranty dated 01/30/03
Pad G Shear Quality, Inc.
Pad G Sleep America, Inc.
Pad K Arizona Grande Cibo, Inc. Guaranty dated 11/08/02
Pad K Cold Stone Creamery Leasing Company, Inc. Guaranty dated 03/13/02
Pad K Xxxx Xxx Ha and Xxxxx X. Xxxxx
Pad K Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx
Pad K KSV Enterprises, LLC Lessor Agreement dated 01/08/02
Pad K Panda Express, Inc.
Pad K Supercuts, Inc.
Shops A Claire's Boutiques, Inc.
Shops A Payless Shoesource, Inc.
Shops A Xxxxx Beauty Company, Inc.
EXHIBIT 3
SERVICE CONTRACTS
20
EXHIBIT 4
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT, made this _______ day of ___________________, 2002 by and
between KIMCOBARCLAY PEORIA CROSSING, LIMITED PARTNERSHIP, an
Arizona Limited
Partnership, ("Assignor") and INLANDREAL ESTATE ACQUISITIONS, INC., an Illinois
Corporation ("Assignee").
W I T N E S S E T H:
EXHIBIT 3
SERVICE CONTRACTS
FIRE MONITORING, LEASE AND MAINTENANCE
Protection Systems
0000 X. 00xx Xxxxxx, Xxxxx X
Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
MONTHLY LIGHTING INSPECTIONS
GB Maintenance
0000 X.Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
MONTHLY LANDSCAPING
ABM Landscape Services
0000 X. Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
MONTHLY DAYPORTER AND PARKING LOT SWEEPING
Pro-Sweep, LLC
X.X. Xxx 00000
Xxxx, Xxxxxxx 00000-0000
Phone: 000-000-0000
MONTHLY SECURITY GUARD SERVICES
Alpha Security
0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
TRASH SERVICE
Waste Management of Arizona
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
EXHIBIT "A"
[TO FOLLOW]
22
EXHIBIT "B"
[TO FOLLOW]
23
EXHIBIT 5
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT, made this _______ day of ________________, 2002 by and
between KIMCOBARCLAY PEORIA CROSSING, LIMITED PARTNERSHIP, an Arizona Limited
Partnership, ("Assignor") and INLANDREAL ESTATE ACQUISITIONS, INC., an Illinois
Corporation ("Assignee").
W I T N E S S E T H:
Assignor is the owner of the property described on Exhibit "A" attached
hereto and made a part hereof ("Premises"). Assignor desires to assign to
Assignee, and Assignee desires to accept the assignment from Assignor of all of
Assignor's right, title and interest in and to those certain service contracts
relating to the Premises described on Exhibit "B" attached hereto and made a
part hereof ("Service Contracts").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto, intending to be legally bound hereby,
covenant and agree as follows:
1. Assignor hereby grants, transfers and assigns to Assignee, its
successors and assigns, all of the right, title and interest of the Assignor in
and to the Service Contracts. Assignor hereby indemnifies and agrees to defend
and hold Assignee harmless from and against all damages, claims, liabilities,
costs and expenses (including reasonable attorneys' fees) arising out of or
relating to the Service Contracts that accrue prior to the date hereof.
2. Assignee hereby accepts said assignment and assumes all of the
Assignor's duties and obligations arising out of the Service Contracts from and
after the date hereof. Assignee hereby indemnifies and agrees to defend and hold
Assignor harmless from and against all damages, claims, liabilities, costs and
expenses (including reasonable attorneys' fees) arising out of or relating to
the Service Contracts from and after the date hereof.
3. The provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have each caused this Assignment
to be duly executed the day and year first above written.
ASSIGNOR:
KIMCO XXXXXXX PEORIA CROSSING, L.P.
BY: Kimco Peoria 476, Inc., its general partner
By:
--------------------------------------
Name:
Title:
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS, an
Illinois Corporation
By:
--------------------------------------
Name:
Title:
24
EXHIBIT "A"
[TO FOLLOW]
25
EXHIBIT "B"
[TO FOLLOW]
26
EXHIBIT 6
PERMITTED EXCEPTIONS
1. See Schedule 6A attached hereto and made a part hereof.
2. Laws and governmental regulations that affect the use and maintenance
of the Shopping Center.
3. Rights, if any, of any utility company to construct and/or maintain
lines, pipes, wires, cables, poles, conduits and distribution boxes and
equipment in, over, under, and/or upon the Real Estate or any portion thereof.
4. Current (tax year 2003-2004) Real Estate Taxes and assessments,
subject to apportionment as hereinafter set forth.
5. Rights, if any, of tenants under Space Leases.
6. The Service Contracts assumed by Buyer and approved by Buyer during
the Due Diligence Period .
7. Any and all other covenants, easements, reservations, agreements and
other matters, if any, of record as of the date of this Agreement; provided same
do not prohibit the maintenance of the Real Estate or the existing use thereof.
Should a dispute arise as to whether any of such matters prohibit the
maintenance or existing use of the Real Estate, Buyer agrees that same shall not
constitute a title objection if the title company shall affirmatively insure
that they do not prohibit such maintenance or existing use of the Real Estate.
8. Any matter than an accurate survey may show.
9. The REA.
10. The Grant of Easement to be executed by El Khazen Enterprises LLC
("Khazen") and Seller as provided for in the Agreement between Khazen and
Northern Loop Properties Limited Partnership; Sellers predecessor in interest
dated January 13, 1999 and recorded as Document Number 00-0000000 in the
Official Records of Maricopa County.
27
EXHIBIT "6-A"
(Schedule "B" from Seller's Existing Title Policy)
28
EXHIBIT 7
SCHEDULE OF LITIGATION
[TO FOLLOW]
29
EXHIBIT 8
FORM OF MASTER LEASE
MASTER LEASE
ESCROW AGREEMENT
This ESCROW AGREEMENT is made and entered into as of__________________,
2003, by and among Kimco Peoria Crossing, L.P., an Arizona Limited Partnership
("Seller"), and Inland Southeast, L.L.C., a Delaware limited liability company
("Purchaser"), and CHICAGO TITLE INSURANCE COMPANY (hereinafter referred to as
"Escrow Agent") having as its address - attention: Xxxxx Xxxxxx, Division II,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, pursuant to that certain
Agreement of Sale, dated as of
_______________ (the "Contract"), Purchaser acquired on and as of the date
hereof from Seller a portion of that certain real property known as Peoria
Crossing shopping center located in Peoria, Arizona (the "Property"); and
WHEREAS, Seller has agreed to deposit with Escrow Agent the sum of
____________________________________ and _________ Dollars ($_________________)
(the "Master Lease Deposit") with respect to Seller's obligation to pay certain
lease commissions, landlord's share of tenant build out, free rent periods, and
rent payable to Purchaser, and other charges, for the Vacant Space (as defined
below), and as itemized on EXHIBIT A attached hereto and made a part hereof by
this reference (the "Deposit Breakdown"); and
WHEREAS, the Master Lease Deposit is hereafter sometimes referred to as the
Escrow Deposit.
WHEREAS, Escrow Agent is willing to accept the Escrow Deposit and hold and
disburse same in accordance with the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises hereto, the
covenants and agreements hereinafter made, and for Ten Dollars ($10.00) in hand
paid to Escrow Agent, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Seller hereby deposits with Escrow Agent, and Escrow Agent hereby
acknowledges receipt of the Master Lease Deposit. Escrow Agent hereby agrees to
deposit the Escrow Deposit into an interest bearing account with a bank, savings
and loan institution, money market account, or other depository reasonably
satisfactory to Purchaser, Seller and Escrow Agent, with interest accruing for
the benefit of Seller. The federal taxpayer identification of Seller is as
follows: 00-0000000 and the FEIN of Seller's general partner is86-1011235.
2. Escrow Agent shall retain the Escrow Deposit in the account, and shall
cause the same to be disbursed therefrom as follows:
(i) Subject to the terms hereof, the Escrow Deposit shall be
held and disbursed by Escrow Agent and used to fund to Purchaser the items set
forth on the Deposit Breakdown.
(ii) For purposes hereof, the term "Vacant Space" shall mean
the ___________ square feet of tenant floor area at the Property that, as of the
date of Closing, for which the Tenant Conditions as hereinafter defined are not
satisfied. For the purposes hereof, the Tenant Conditions for any Property
vacant space gross leasable area are hereby defined as (i) a signed lease, and
(ii) with Tenant either paying full rent and reimbursements or the all
conditions precedent to Rent Commencement Date (as defined in such tenant lease)
shall have occurred or been satisfied and (iii) with all the leasing commissions
and tenant improvement allowances either paid for by Seller or credited to Buyer
and (iv) with a certificate of occupancy or its equivalent occupancy permit
issued by the local governmental authorities, for such tenant's respective
demised premises. Purchaser shall receive a prorated credit from the Master
Lease Deposit on the date of Closing (as defined in the Contract) for the rent
and reimbursable expenses attributable to the Vacant Space from the date of
Closing through the end of the month in which Closing occurs in accordance with
the terms of Exhibit "A" attached hereto and made a part hereof. However as
noted on Exhibit A such total shall be reduced by Thirty Eight Thousand Dollars
and 00/100 ($38,000). Thereafter, through the date upon which all Tenant
Conditions are satisfied with respect to all or any portion of the Vacant Space,
Escrow Agent shall pay to Purchaser (and Escrow Agent is hereby authorized to
pay to Purchaser without further direction from Seller) from the Master Lease
Deposit, on the first day of each month, the amount of rent and other
reimburseable expenses and
30
other charges (in accordance with the terms of Exhibit A) which would be due on
a monthly basis from tenants of the Vacant Space as if the Tenant Conditions
were satisfied (prorated for any partial month) (the "Master Lease Deposit
Monthly Payment"). The Master Lease Deposit Monthly Payment shall be made by
Escrow Agent to Purchaser until such time as the respective tenant(s) for the
Vacant Space, and Seller, have satisfied the Tenant Conditions. Purchaser shall
promptly notify Seller and Escrow Agent of the date any tenant satisfies its
Tenant Conditions. The Vacant Space may be subdivided and leased to more than
one tenant in Seller's commercially reasonable discretion. As all or any portion
of the Vacant Space is leased during the 12-month period following the date of
Closing, with the Tenant Conditions having then been satisfied for such Vacant
Space so leased, the balance of the Master Lease Deposit remaining to the end of
the Escrow Term (as hereinafter defined)(measured as the number of days
remaining from the date the Tenant Conditions for such leased portion of the
Vacant Space are met through the last day of the Escrow Term), attributable to
rent, reimbursable expenses, taxes, other charges and Excess Leasing Costs
(defined as those costs stated on Exhibit "A" for such expense less the actual
cost incurred for such expense) for such leased portion of the Vacant Space,
shall be released to Seller upon the joint direction of Seller and Purchaser.
The approval of a disbursement requested by either party will be deemed approved
if the non-requesting party does not object to the disbursement request within
five (5)-business days of receipt of such request. That portion of the Master
Lease Deposit attributable to tenant improvement allowances, free rent, and
broker or consultant fees and commissions (collectively, the "Leasing Costs"),
shall be released for payment (either to Seller or third parties, as the case
may be) upon presentment of the required lien waivers and related documentation
required by any governing lease or commission agreement. The balance of the
Master Lease Deposit attributable to the Leasing Costs, if any, after
satisfaction of the Tenant Conditions with respect to all or any portion of the
Vacant Space within the 12-month period following the date of Closing, shall be
released to Seller in accordance with the terms of Exhibit A. However, if the
Tenant Conditions have not been satisfied within 12-months of the date of
Closing for any portion of the Vacant Space to achieve the Lease-up Deficiency
as defined in 11(B)(d) of the
Agreement of Sale on the first day of the
nineteenth month after date of Closing, all remaining sums then remaining of the
Master Lease Deposit attributable to such Leasing Costs (to the portion of
vacant space necessary to achieve the Lease-up Deficiency) shall be released to
Purchaser. Purchaser shall promptly notify Seller and Escrow Agent of the date
any tenant opens for business as provided under any lease. Any interest on the
Escrow Deposit shall be the property of Seller and in all events shall be
disbursed to Seller no later than the final disbursement made pursuant hereto.
The term of this Escrow Agreement (the "Escrow Term") shall be from the date
hereof until the first to occur of: (a) 12-months from the date of Closing; or
(b) such date as Seller leases sufficient portion of the vacant space to achieve
Lease-up of the Property equal to One Hundred (100%) percent.
(iii) In the event either party objects to the disbursement of
the Escrow Deposit, the Escrow Agent shall have the right, at its option, either
(a) to hold the Escrow Deposit in escrow pending resolution of such objection by
mutual agreement of the parties or by judicial resolution of same or (b) to
disburse the Escrow Deposit into the court having jurisdiction over such
objection. After any disbursement of the Escrow Deposit under the terms of this
Escrow Agreement, Escrow Agent's duties and obligations hereunder shall cease.
In the event of any dispute regarding disbursement of the Escrow Deposit, the
party ultimately receiving the Escrow Deposit after resolution of such dispute
shall be entitled to receive from the other party all the prevailing party's
costs and expenses incurred in connection with the resolution of such dispute
including, without limitation, all court costs and reasonable attorney's fees.
3. This Escrow Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, principals, successors and
assigns and shall be governed and construed in accordance with the laws of the
State of Arizona. No modification, amendment or waiver of the terms hereof shall
be valid or effective unless in writing and signed by all of the parties hereto.
This Escrow Agreement may be executed in multiple counterpart originals, each of
which shall be deemed to be and shall constitute an original. This Escrow
Agreement constitutes the entire agreement between the parties hereto with
respect to this Escrow, and it supersedes all prior understandings or agreements
of the parties with respect thereto.
4. NOTICES. All notices, requests, consents and other communications
hereunder shall be sent to each of the following parties and be in writing and
shall be personally delivered, sent by Federal Express or other overnight or
same day courier service providing a return receipt, to the following addresses:
If to Purchaser:
Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: G. Xxxxxx Xxxxxxx
31
with a copy to:
The Inland Group, Inc.
0000 Xxxxxxxxxxx Xxxx\
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to: Xx. Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxxxxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Seller: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
3333 New Hyde Park Road
Suite 000
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
5. COUNTERPARTS. This Escrow Agreement may be executed in counterparts
and shall constitute an agreement binding on all parties notwithstanding that
all parties are not signatories of the original or the same counterpart.
Furthermore, the signatures from one counterpart may be attached to another to
constitute a fully executed original. The Escrow Agreement may be executed by
facsimile.
6. SELLER'S FORM LEASE AND LEASING PARAMETERS. Purchaser has approved of
Seller's form tenant lease and agrees to reasonably approve of variations
negotiated in good faith by Seller with prospective tenants in the ordinary
course of business. Seller and Purchaser further agree that attached hereto as
Exhibit B, and made a part hereof, is the agreed-to Leasing Parameters
applicable to the lease-up of the Vacant Space. Purchaser shall be obligated to
accept a prospective tenant and its prospective lease so long as the terms of
this paragraph 6 and Exhibit B are adhered-to. Notwithstanding the foregoing, in
the event there is a conflict between an actual lease approved by Purchaser and
the terms of the Leasing Parameters, the actual, approved lease shall control in
regard to Seller's adherence to the Leasing Parameters.
32
IN WITNESS WHEREOF, each of the parties hereto has caused this Escrow
Agreement to be signed and delivered as of the day and year first above written.
PURCHASER:
INLAND SOUTHEAST, L.L.C.,
a Delaware limited liability company
By: Inland Retail Real Estate
Limited Partnership, an Illinois limited partnership,
member
By: Inland Retail Real Estate Trust, Inc.,
a Maryland corporation, general partner
By:
-----------------------------
Name:
-----------------------------
As Its:
--------------------------
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SELLER:
KIMCO PEORIA CROSSING, L.P.
an Arizona limited partnership
By:Kimco Peoria 476, Inc., its general partner
By:
-----------------------------
Name:
-----------------------------
As Its:
--------------------------
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
--------------------------------------------
Xxxxx Xxxxxx, Senior Escrow Officer
34
EXHIBIT A
Rent per square foot for Vacant Space as set forth on the Rent Roll for twelve
(12) months (Escrow Term) ...$__________ $__________per month
Reimbursable expenses (CAM, insurance)
at $_____psf of Vacant Space, for
twelve (12) months ...................$____________ $__________per month
Real Estate Taxes at $_______ psf of Vacant
Space, for twelve (12) months ........... $__________ $__________ per month
Tenant Improvements: (a) $______ psf for vacant space
Leasing Commissions at $4.00 psf - total: $________
$_________
Seller Vacancy Credit ($38,000.00)
To be a credit to Seller and a reduction in amount calculated above as total
escrow
Note: As the Tenant Conditions are met for any part of the Vacant Space, rent,
CAM and real estate tax deposits into the Escrow shall be released to Seller at
the rate of $_____________ psf of Vacant Space for the period (if any) remaining
to the end of the Escrow Term, measured as the number of days remaining from the
date the Tenant Conditions for any part of the Vacant Space are met through the
last day of the Escrow Term. In the event the Tenant Conditions are not met for
any part of the Vacant Space necessary to achieve the Lease-up Deficiency Income
Threshold within the Escrow Term, the amount of Tenant Improvements deposit and
Leasing Commissions deposit then remaining in the Escrow and attributable to
such Vacant Space, shall be released to Purchaser upon the expiration of the
Escrow Term.
35
-EXHIBIT B-
LEASING PARAMETERS
1. The proposed use shall be a use typically found in retail centers
of this type.
2. The proposed use does not violate any exclusions existing in any
other tenant's lease or covenants existing in any other documents of
record.
3. The lease is for an original term of not less than 5 years, nor
more than 10 years.
4. No concessions shall be provided to the tenant which would be at
Purchaser's expense.
5. All leases shall be prepared substantially in accordance with the
small shop tenant lease form approved by Purchaser (the "SST Lease")
during the Due Diligence Period subject to commercially reasonable
variances and prevailing market parameters.
6. The proposed tenant has retail and/or business and/or management
operating experience including, but not limited to, eighteen months in
the type of business to be operated at the leased premises. In the
absence of three years experience, the prospective tenant must be an
approved franchise or a recognized regional or national franchiser.
7. The proposed tenant and/or lease guarantor has an aggregate net
worth of at least two years of the total aggregate annualized rent,
including all expenses, for any tenant of the leased premises up to
7,000 square feet
8. Said leases shall average comparable revenue at least 2%
increases per year or 7.5% aggregate increase over the 5 year term over
the primary term of the lease as current space leases.
9. The tenant's lease will not include rent reductions or early
termination clauses of any kind (excluding typical casualty/condemnation
provisions and landlord not reconstructing the demised premises, and as
otherwise described by the SST Lease).
10. In addition to tenant's base rent, the leases will include
reimbursement for taxes, insurance and common area maintenance,
including either a 10% administrative charge for CAM or no less than a
4% management fee for all tenancies or as otherwise described by the SST
Lease.
11. Purchaser shall act in a commercially reasonable manner and in
good faith during its review and determination of the credit worthiness
of any tenant and/or guarantor. Also, Purchaser agrees to respond to
Seller deliveries of tenant/guarantor credit information within 5
business days after its receipt by Purchaser, otherwise said
tenant/guarantor credit worthiness shall be deemed approved by
Purchaser.
12. The lease renewals, if any, will not be less than the primary
term amounts without tenant improvements, free rent, or leasing
commissions paid for by Purchaser.
13. No lease shall contain representations or warranties in regard to
the condition of any demised premises, each being delivered in its
as-is, where-is condition, subject to the terms of the SST Lease.
14. Purchaser shall act in a commercially reasonable manner and in
good faith during its review and approval of a proposed lease pursuant
to this Master Lease. Also, Purchaser agrees to respond to Seller
deliveries of leases for approval and/or execution within ten (10)
business days after its receipt by Purchaser, otherwise said lease shall
be deemed approved.
If Purchaser fails to execute the lease (after having had the
opportunity to review same as provided herein) in said time period then same
shall be treated as a completed lease and Seller shall be given credit for
Leasing such vacant space pursuant to the terms contained therein and Tenant
Conditions shall be satisfied.
36
EXHIBIT 9
SITE PLAN OF VACANT SPACE
EXHIBIT 10
EXHIBIT C
Tenant Estoppel Certificate Form - General
To:
Inland Real Estate Acquisitions, Inc., and
Inland Southeast ____________, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
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 represents 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
c. Expiration Date
d. Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases _______________ _______________
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options
_______ Additional Terms for
_______ years at $__________per year
i. Termination Options Termination Date _______________
Fees Payable ___________________
2. Tenant further certifies to 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;
c. Tenant has accepted and is occupying the Premises, all construction
required by 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 has no obligation to segregate the security deposit or to pay
interest thereon;
g. 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;
37
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. 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));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. 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;
l. 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;
m. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein;
n. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws;
o. the Lease does not give the Tenant any operating exclusives for the
Property; and
p. 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 obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. 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 Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at lender's
request, so long as the 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 (including its lender),
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
38
GUARANTOR ESTOPPEL CERTIFICATE
Date: _________________________, 2003
To: ______________________
Inland Real Estate Acquisitions, Inc., and
Inland Southeast ___________, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Guaranty Agreement dated ______________________ ("Guaranty of Lease")
pertaining to that certain lease dated ____________________________________
between as Landlord and _________________________________ as Tenant for
leased premises known as ______________________________ (the "Premises")
located at the property commonly known as ________________________________
(the "Property").
1. Guarantor certifies to Lender and Purchaser that: (a) the Guaranty of
Lease has been properly executed by Guarantor and is presently in full
force and effect without amendment or modification except as noted
above; (b) Guarantor has no existing defenses, offsets, liens, claims or
credits against the obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and a lender is about to provide Landlord
with financing which shall be secured by a deed of trust (or mortgage),
security agreement and assignment of rents, leases and contracts upon
the Property. Guarantor further acknowledges and agrees that Purchaser
and its lender and their respective successors and assigns shall have
the right to rely on the information contained in this Certificate.
3. The undersigned is authorized to execute this Guarantor Estoppel
Certificate on behalf of Guarantor.
[GUARANTOR]
By:
40
EXHIBIT 11
REA ESTOPPEL STATEMENT
The undersigned_________________, a __________ corporation ("______"), is a
party to the ____________________ (REA) recorded on ________________, _____ in
Book _____, Page ______ of the Public Records of ______ County, ______ (the
"REA"), between and among _______, a ______________ ("Developer"), and
_______________________, a ______________ (corporation) ("______"), with respect
to the _______________________ Shopping Center in ______, ______ (the "Shopping
Center"). ___________ has been advised that Developer is in process of selling
Developer's interest in the Shopping Center to INLAND (entity) having a notice
address of 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention: Vice
Chairman (together with its lender, and successors and assigns, collectively
referred to herein as "Purchaser"). _____________ hereby states to Purchaser as
follows (without undertaking any investigation to verify the accuracy of the
statements made):
1. The REA has not been amended and is in full force and effect.
2. The REA is presently in full force and effect according to its terms.
3. __________ has neither given nor received any notice of default with
respect to the REA. To the best of _________'s knowledge (whereby knowledge
shall be limited to the party signing this REA Estoppel Agreement on behalf of
___________________), neither _____________ nor any other party is in default
under the REA.
4. As provided under Section __________ of the ______________________REA,
___________ acknowledges and agrees that, upon its acquisition of Developer's
interest in the Shopping Center, Purchaser shall be entitled to all of the
benefits, rights, privileges and burdens of the Developer under the REA.
5. The gross leasable area of the ____________ store is _____________.
6. ___________'s last contribution for common area maintenance costs and
expenses was for the month of _______________, 2003 in the amount of
$ _____________.
This Statement does not (a) constitute a waiver of any rights
_______________ may have under the REA, or (b) modify, alter, or change any of
the terms or conditions of the REA.
No officer or employee signing this Statement on behalf of ___________
shall have any liability as a result of having given this statement.
The statements contained in this Statement are not affirmative
representations, warranties, covenants or waivers, and _______ shall not be
liable to Developer, Purchaser or any third party on account of any information
herein contained, notwithstanding the failure, for any reason, to disclose
and/or correct relevant information. Notwithstanding the preceding sentence,
_______ shall be estopped from asserting any claim or defense against Purchaser
to the extent such claim or assertion is based upon facts, now known to the
person(s) signing below on behalf of _______, which are contrary to those
contained herein, if Purchaser has acted in reasonable reliance upon such
statements without knowledge of facts to the contrary. This Statement is given
solely for Purchaser's information and may not be relied upon by anyone other
than Purchaser, or in connection with any transaction other than the transaction
described above. Capitalized terms used in this Statement, unless otherwise
defined, will have the meanings ascribed to such terms in the REA.
Dated as of __________________, 2003.
------------------------------
A _______________(CORPORATION)
41
By:
----------------------------
As Its:
EXHIBIT 12
INLAND SOUTHERN MANAGEMENT LLC
FINAL DUE DILIGENCE CHECKLIST
A. FINANCIAL INFORMATION
1. Copy of leases and any guarantees
2. Current Rent Roll
3. Prior five full years operating statements
4. Prior year's general ledger statement
5. Last three years' bills for:
a. Real estate taxes
b. Insurance
1) Liability
2) Property
c. Reconciliation's for CAM/taxes/insurance
Statement of current monthly amounts paid by tenants for
CAM/tax/insurance plus a year-to-date balance of amounts paid
by each tenant
6. Base rent collected in previous five calendar year period by tenant
7. Physical occupancy for the last five calendar years prior to purchase
8. Receivables status/aging report
9. Tenant sales reports for last three years
10. Tenant financial statements
11. Lease expirations - next three years
B. EXPENSE INFORMATION
1. Twelve months of consecutive utility bills
a. Water
b. Gas
c. Electric
d. Telephone & dedicated lines
2. Copies of all service agreements, contracts or any leases that encumber
the property
a. Fire/burglar alarm
1) Start date__________________________
2) Ending date_________________________
42
3) Notice period_______________________
4) Cancelable or not___________________
b. Antenna cable/satellite dish
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
c. Cleaning
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
d. Exterminating
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
e. Landscaping
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
f. Scavenger
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
g. Security service
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
h. Snow removal
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not
i. Towing
1) Start date___
2) Ending date________
3) Notice period______
4) Cancelable or not__
j. Union contracts
1) Start date___
2) Ending date________
3) Notice period______
4) Cancelable or not__
k. Elevator
1) Start date_
2) Ending date________
3) Notice period______
4) Cancelable or not__
1. Uniform rental
1) Start date_
43
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
m. Water softeners
1) Start date_
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
n. Leasing
1) Start date_
2) Ending dale_______
3) Notice period_____
4) Cancelable or not_
o. Management
1) Start date_
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
p. Advertising
1) Start date_
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
q. Tax reduction legal fees
1) Start date_
2) Ending date_______
3) Notice period_____
4) Cancelable or not_
r. Any other service contracts or leases not cancelable in 90
days
1) Start date__________________________
2) Ending date_________________________
3) Notice period_______________________
4) Cancelable or not___________________
3. Copies of all warranties which benefit the initial construction of the
improvements upon the Property (e.g., HVAC, roof and parking lot)
C. ENVIRONMENTAL REPORTS
1. Phase 1
2. Other
D. STAFFING
1. Itemized by position and salary
E. SITE INSPECTIONS
1. Inspection report
2. Photo attached
F. MISCELLANEOUS
1. Code violations
a. Current and outstanding
b. Last 24 months, with compliance
44
c. Contact municipalities as to other problems
2. Easement/encumbrances: restrictive easement agreements/operating
easement agreements
a. Warranties
b. Current tenant contact list
c. Certificates of insurance from tenants
d. Certificates of Occupancy for each tenant space
45
EXHIBIT 13
SURVEYOR'S CERTIFICATION
I/We hereby certify to INLAND _____________________ (Inland nominee),
_____________________(Lender) and ____________________ (Name of Title Insurance
Company) that (a) this survey was prepared by me or under my supervision, (b)
the legal description of the property as set forth herein, and the location of
all improvements, encroachments, fences, casements, roadways, rights of way and
setback lines which are either visible or of record in _______________
County,_________ _______________ (according to Commitment for Title Insurance
Number _______________, dated ______________, 2001(2), issued
___________________________), are accurately reflected hereon, (c) this survey
accurately depicts the state of facts as they appear on the ground, (d) except
as shown hereon, there are no improvements, encroachments, fences or roadways on
any portion of the property reflected hereon, (e) the property shown hereon has
access to a publicly dedicated roadway, (f) the property described hereon {does}
{does not} lie in a 100 year flood plain identified by the Secretary of Housing
and Urban Development or any other governmental authority under the National
Flood Insurance Act of 1968 (24 CFR Section l909.l), as amended (such
determination having been made from a personal review of flood map number
_______, which is the latest available flood map for the property), (g) the
title lines and lines of actual possession are the same, (h) all utility
services required for the operation of the property either enter the property
through adjoining public streets, or this survey shows the point of entry and
location of any utilities which pass through or are located on adjoining private
land, (i) this survey shows the location and direction of all storm drainage
systems for the collection and disposal of all surface drainage, (j) the
property surveyed contains _________ acres and _______ parking spaces, (k) any
discharge into streams, rivers, or other conveyance systems is shown on the
survey. This survey has been made in accordance with "MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS" jointly established and adopted
by American Land Title Association ("ALTA") and American Congress on Surveying
and Mapping ("ACSM") in 1999 and meets the accuracy requirements of an Urban
Survey, as defined therein and includes items 1, 3, 4, 6, 7(a, b, and c), 8-11
and 13 of Table A thereof.
Dated:_______________, 2003 (NAME OF SURVEYOR AND QUALIFICATION)
_____________________________
Registration No._____________
Note: Buyer also requires a finished floor elevation certificate for all
finished structures located in a flood zone
46
EXHIBIT 14
TENANT LETTER
(Landlord Letterhead)
(Landlord or management company Letterhead)
_______ ____, 2003
Insert Tenant Name
Insert Tenant Address
Re: The lease dated ___________________________ (collectively, with any
and all amendments thereto, the "Lease") between __________________
as tenant ("Tenant") and _____________________, ________________ as
landlord ("Landlord") for property located at the _________________
Shopping Center, _________, ______(the "Property")
Dear Tenant:
Please be advised that the Property, subject to the above-referenced Lease,
has been sold as of _______ ____, 2003 to Inland Southeast _________________,
L.L.C. Inland Southeast _________________, L.L.C. has hired Inland Mid-Atlantic
Management Corp. as its managing agent for the Property. Effective immediately,
all rent payments pursuant to the Lease should be made payable to Inland
Mid-Atlantic Management Corp. and sent to the following address:
Inland Mid-Atlantic Management Corp.
P. O. Xxx 000000
Xxxxxxx, XX 00000-0000
In addition, all notices and other communications provided by Tenant under
the Lease should be sent to Inland Southeast ___________, L.L.C. at the
following address:
Inland Mid-Atlantic Management Corp.
x/x Xxxxxx Xxxxxxxxx __________________, L.L.C.
Attn: Xx. Xxxxx Xxxxxxxx
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
In addition, please contact your insurance agent to have a certificate
forwarded, naming as additional insured: (i) Inland Mid-Atlantic Management
Corp., and (ii) Inland Southeast ___________________, L.L.C. Thank you for your
time and attention to this matter.
Very truly yours,
(Landlord or management company)
By:
----------------------------------
cc: Inland Southeast ________________, L.L.C.
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