Exhibit 10.13
STORE NO. 2872R
REAL ESTATE PURCHASE CONTRACT
THIS REAL ESTATE PURCHASE CONTRACT (the "Agreement") is made and entered
into as of the Effective Date (as defined in Paragraph 29 below) by and between
COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation (hereinafter
referred to as "Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation (hereinafter referred to as "Purchaser").
WITNESSETH:
For and in consideration of TEN AND 00/100 DOLLARS ($10.00), the agreements
made herein, and other good and valuable considerations, the receipt and legal
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. THE PROPERTY. Seller hereby agrees to sell to Purchaser, and Purchaser
hereby agrees to purchase from Seller, upon and subject to the terms and
conditions herein set forth, certain property more particularly described in
EXHIBIT "A" (the "Property"), together with all improvements located thereon
and/or to be constructed thereon between the Effective Date and the Closing Date
(as defined in Paragraph 10 below), and all rights, hereditaments and
appurtenances thereto, but subject only to that certain Lease Agreement
("Lease") dated April 16, 2003 with Eckerd Corporation, a Delaware corporation
("Tenant").
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for Property shall be
FIVE MILLION TWO HUNDRED EIGHTY EIGHT THOUSAND FOUR HUNDRED THIRTY-ONE AND
NO/100 DOLLARS ($5,288,431.00) subject to adjustments and prorations as
provided herein. The Purchase Price shall be paid in federal funds by
Purchaser to Seller at Closing (as defined in Paragraph 10 below) by wire
transfer to Escrow Agent (as defined in Paragraph 3 below), and the Closing
shall occur pursuant to the terms of this Agreement and a customary deed
and money escrow agreement (the "Deed and Money Escrow Agreement") to be
entered into among Seller, Purchaser and Escrow Agent.
(b) Seller and Purchaser acknowledge and agree that the Purchase
Price was calculated by dividing $454,806 (which is the aggregate amount of
Rent (as defined in the Lease) payable by Tenant to Seller, as landlord,
under the Lease for the twelve (12) month period commencing on the Lease
Commencement Date (as defined in the Lease) under the Lease (the "Lease
Rent")), by .086. Pursuant to Section 9.8 of the Lease, the Rent is subject
to adjustment based on amount of the Actual Building Hard Costs (as defined
in the Lease). If the Rent is adjusted pursuant to Section 9.8 of the
Lease, then the Lease Rent would be affected. Seller and Purchaser agree
that, in the event that the Rent is adjusted pursuant to Section 9.8 of the
Lease, then the Purchase Price shall be adjusted (using the formula set
forth above) based upon the adjusted Lease Rent; provided, however, that
the Purchase Price shall not be adjusted unless and until the landlord
under the Lease and Tenant have executed and entered into an amendment to
the Lease, which amendment shall establish the final Rent payable by Tenant
to the landlord under the Lease for the entire term (inclusive of any
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extension terms) thereof. Seller covenants and agrees that it shall send
Purchaser copies of all correspondence between Tenant and Seller concerning
any adjustment to the Rent and any Lease amendment. Seller and Purchaser
acknowledge that the adjustment, if any, of the Rent under the Lease may
not be completed prior to the Closing. If such adjustment is completed
prior to the Closing, then Seller and Purchaser shall enter into an
amendment to this Agreement memorializing the final Purchase Price. If such
adjustment is not completed prior to the Closing, then the obligations of
Seller and Purchaser contained in this Paragraph 2(b) shall survive the
Closing without restriction or limitation, and Seller and Purchaser shall
make final determination of the Purchase Price within ten (10) days after
final adjustment of all Rent under the Lease or the date upon which Seller,
Purchaser and Tenant determine that no adjustment to the Rent shall be made
pursuant to Section 9.8 of the Lease (in which event no adjustment to the
Purchase Price shall be made pursuant to this Paragraph 2(b)). Purchaser
covenants and agrees that after Closing Purchaser shall sign a Lease
amendment adjusting the Rent as required by the terms of the Lease and this
Agreement. If the Purchase Price paid by Purchaser to Seller at Closing
exceeds the final, adjusted Purchase Price as determined in accordance with
this Paragraph 2(b), then, within three (3) days after Seller's and
Purchaser's determination of the final, adjusted Purchase Price, Seller
shall pay such excess to Purchaser. If the Purchase Price paid by Purchaser
to Seller at Closing is less than the final, adjusted Purchase Price as
determined in accordance with this Paragraph 2(b), then, within three (3)
days after Seller's and Purchaser's determination of the final, adjusted
Purchase Price, Purchaser shall pay such deficiency to Seller.
3. XXXXXXX MONEY. Within three (3) business days of the Effective Date of
this Agreement, Purchaser shall deposit the sum of FIFTY THOUSAND AND 00/100
DOLLARS ($50,000.00) as xxxxxxx money (the "Xxxxxxx Money") with Chicago Title
Insurance Company-National Division, Chicago, Illinois (the "Escrow Agent"),
which sum shall be held by Escrow Agent, in escrow, pursuant to the terms of a
modified joint order escrow agreement (the "Escrow Agreement"), subject,
however, to disbursement in accordance with the terms and provisions of such
escrow agreement. The Escrow Agreement shall provide that disbursement of the
Xxxxxxx Money (and any interest earned thereon) shall not be made without the
joint direction of Seller and Purchaser; provided, however, that Purchaser shall
have the unilateral right, at any time prior to the expiration of the Inspection
Period (as defined in Paragraph 4 below), to direct disbursement of the Xxxxxxx
Money (and any interest earned thereon) to Purchaser. Provided that Purchaser
furnishes Escrow Agent with a form W-9 containing Purchaser's U.S. Taxpayer
Identification Number, the Xxxxxxx Money shall, at Purchaser's election, be held
by Escrow Agent in an interest bearing money market savings and interest earned
thereon shall be reported under Purchaser's U.S. Taxpayer Identification Number.
Except as otherwise provided in this Agreement, the Xxxxxxx Money shall be
credited to and considered as payment of part of the Purchase Price at the time
of and upon consummation of the Closing hereunder, and the interest earned
thereon shall be delivered to Purchaser by Escrow Agent.
4. INSPECTION PERIOD. Subject to rights of Tenant and the limitations, if
any, imposed on the landlord's right of entry under the Lease, Purchaser and its
agents, employees, representatives, consultants and independent contractors
shall have from the Effective Date of this Agreement to the date that is thirty
(30) business days after the Effective Date (the "Inspection Period") in which
to
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conduct, at Purchaser's sole expense, such physical, environmental, engineering
and feasibility reports, inspections, examinations, tests and studies as
Purchaser deems appropriate (including, without limitation, interviews of
Tenant, but Seller makes no representations, warranties and/or guaranties as to
any information received by Purchaser from Tenant) in an effort to determine
whether the Property suitable for Purchaser's intended uses of the Property
including, without limitation, those matters disclosed by any survey of the
Property obtained by Seller as provided in Paragraph 5 hereof, and those matters
related to the title to the Property as provided in Paragraph 5 hereof. In
connection with Purchaser's investigation of the Property, at all times prior to
the Closing, Seller shall provide access via the World Wide Web (except for
items larger than letter or legal size documents such as surveys, site plans,
and plans and specifications, hard copies of which will be delivered to
Purchaser) to Purchaser to the following items (which Seller shall update from
time to time prior to the Closing Date as and when Seller shall receive any more
current or accurate information or materials) to the extent the same are in
Seller's possession or are readily available to Seller: (i) any existing title
commitments for the Property (and to the extent not delivered by the Title
Insurer (as defined in Paragraph 5 below) pursuant to Paragraph 5 below, legible
copies of any title exception documents thereto), (ii) the Lease, (iii) any
existing surveys of the Property, (iv) any existing appraisals of the Property,
(v) any Phase I and other environmental reports or relating to the Property,
(vi) all other third party reports with the respect to the Property, (vii) the
most recent real estate tax bills relating to the Property, (viii) as built
plans and specifications for the improvements, if any, on and to be constructed
upon the Property, (ix) all written or oral (and including all amendments
thereto and modifications thereof) guarantees and warranties in effect with
respect to the Property or any portion thereof, which shall survive the closing
hereunder; (x) all licenses, certifications, authorizations, approvals,
applications, variances and permits issued or approved by any governmental
authority and relating to the operation, ownership, design, development,
construction, repair and maintenance of the Property or any part thereof,
including, without limitation, machinery and building permits, zoning variances
and approvals, business licenses, ingress and egress permits and the like, and
any and all amendments to or modifications of any of the foregoing
(collectively, the "Licenses"); and (xi) all essential data, correspondence,
documents, agreements, waivers, notices, applications and other records in
respect to the ownership, operation, design, development, construction, repair
and maintenance of the Property (including, without limitation, any such
materials relating to transactions with taxing authorities, governmental
agencies, utilities, vendors, Tenant, mortgagees and others with whom Purchaser
may be dealing subsequent to closing)(all items referred to in clauses (i)
through (xi) shall hereinafter sometime be referred to collectively as the
"Existing Due Diligence Items"). At any time prior to the Closing, Purchaser,
Purchaser's agents, employees, representatives, consultants and independent
contractors shall have the right, subject to rights of Tenant and the
limitations, if any, imposed on the landlord's right of entry under the Lease,
to come onto the Property, at such time as reasonably designated by Seller, for
the purpose of conducting the foregoing reports, inspections, examinations,
tests and studies, and updating such reports, inspections, examinations, tests
and studies as provided in Paragraph 7 below. No such report, inspection,
examination, test or study shall unreasonably interfere with uses of the
Property by Seller or Tenant or violate any law or regulation of any
governmental entity having jurisdiction over the Property. Notwithstanding the
foregoing, Purchaser shall not conduct any invasive testing without Seller's
prior consent, such consent not to be unreasonably withheld or delayed, and
subject to the rights of the Tenant under the Lease. Upon the completion of any
inspection, examination, test or study, if any, and provided that Purchaser
elects not to acquire the
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Property pursuant to this Agreement, Purchaser shall promptly restore the
Property to substantially the condition that existed immediately prior to such
inspection, examination, test or study. Purchaser agrees to indemnify, defend
and hold Seller and Tenant harmless from any and all actual, out-of-pocket loss
and expense (including, without limitation, reasonable attorney's fees)
resulting from claims and damages (including, but not limited to, injury to, or
death of persons, loss or damage to property, the performance of any labor or
services for the Purchaser, or the release, escape, discharge, emission,
spillage, seepage or leakage by Purchaser on or from the Property of any
hazardous substance brought upon the Property by Purchaser or any other
violation by Purchaser of any environmental law applicable to the Property)
directly caused by, arising out of, or incurred in connection with the exercise
by Purchaser of Purchaser's rights under this Paragraph 4. Any provision of this
Agreement to the contrary notwithstanding, the indemnification obligation of
Purchaser under this Paragraph 4 shall survive the Closing or any earlier
termination of this Agreement.
5. TITLE/SURVEY. No later than three (3) days following the Effective
Date, Buyer shall, at Seller's sole cost and expense, order from the Title
Insurer (as defined hereinbelow) the following: (a) a commitment for an ALTA
Owner's Title Insurance Policy (the "Title Commitment") for the Property,
together with legible copies of any and all title exception documents referenced
therein, issued by Chicago Title Insurance Company (the "Title Insurer") in the
amount of the Purchase Price of the Property on or after the date hereof,
showing Seller as owner of the Property in fee simple, subject only to the title
exceptions approved or deemed approved by Purchaser pursuant to this Paragraph 5
or Paragraph 6 below (each a "Permitted Exception"), and other exceptions
pertaining to liens or encumbrances of a definite or ascertainable amount
(which, in the aggregate, do not exceed that portion of the Purchase Price
payable to Seller on the Closing Date) which may be removed by the payment of
money at closing and which Seller shall so remove, and providing for full
extended coverage over all general title exceptions contained in such Policy and
the following special endorsements(collectively, the "Special Title
Endorsements"): Zoning Endorsement 3.1 (amended to include parking), owner's
comprehensive, access, survey (legal description equivalency), separate tax
parcel, contiguity (if applicable), waiver of creditor's rights, environmental
protection lien, encroachment (if applicable), utility facility, subdivision,
location, deletion of the arbitration provision, and any other endorsements
required by Purchaser; and (b) Seller's existing survey relating to the Property
(the "Survey"). Not less than five (5) days prior to the expiration of the
Inspection Period, Purchaser may deliver to Seller a notice (the "Title and
Survey Notice") identifying any matters contained in or disclosed by any of the
Title Commitment and/or the Survey that are not acceptable to Purchaser in its
sole and absolute discretion (each, a "Title/Survey Objection", and
collectively, the "Title/Survey Objections"). Purchaser's failure to deliver the
Title and Survey Notice as aforesaid shall be deemed Purchaser's approval and
acceptance of the Title Commitment and the Survey, and all matters shown and
referenced thereon and therein shall be deemed Permitted Exceptions.
Additionally, Purchaser's failure to object to any matters disclosed by the
Title Commitment and/or the Survey in a Title and Survey Notice shall be deemed
Purchaser's acceptance of such matters, and such matters shall be deemed
Permitted Exceptions. If Purchaser shall deliver the Title and Survey Notice to
Seller as aforesaid, Seller shall, within five (5) days after receipt of the
same, notify Purchaser, with respect to each Title/Survey Objection, whether
Seller intends to either (a) cause the Title/Survey Objection to be removed, (b)
have the Title Insurer issue a title endorsement insuring against damage and
loss caused by any Title/Survey Objection (which
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endorsement shall be subject to the review and approval of Purchaser), or (c)
take no further action regarding such Title/Survey Objection in which event,
subject to the immediately following sentence, such Title/Survey Objection shall
become a Permitted Exception. Notwithstanding the foregoing, Seller shall, at
its expense, remove (or cause to be removed) or cause the Title Insurer to
insure over any Title/Survey Objection appearing on the Title Commitment that is
any of the following: (1) judgments against Seller, and/or (2) mortgages or
monetary liens, defects, obligations or exceptions of a definite and
ascertainable amount that can be satisfied solely by the payment of money (items
(1) and (2) above to be hereinafter referred to collectively as "Monetary
Exceptions"). If Seller elects, or is deemed to have elected, item (c) above,
then Purchaser shall have the right, by delivering notice to Seller within three
(3) business days after the expiration of the aforementioned five (5) day period
to either (i) terminate this Agreement in which event the Xxxxxxx Money (and any
interest earned thereon) shall be immediately returned to Purchaser and
thereupon neither Seller nor Purchaser shall have any further rights, duties or
obligations under this Agreement, or (ii) waive its objection and accept title
to the Property subject to such Title/Survey Objections, in which event this
Agreement shall remain in full force and effect. Seller's failure to notify
Purchaser within the aforementioned five (5) day period of which foregoing
course of action Seller elects to take with respect to a Title/Survey Objection
shall be deemed Seller's election of item (c) above. With respect to any
Title/Survey Objection that Seller has elected or is deemed to have elected not
to take any further action, Purchaser's failure to terminate this Agreement on
or before the expiration of the aforementioned three (3) business day period as
aforesaid shall be deemed Purchaser's waiver of its objection as provided in
(ii) above. If the Title Commitment discloses judgments, bankruptcies or other
matters against other persons having names the same as or similar to that of
Seller, Seller, on the Title Insurer's request, shall deliver to the Title
Insurer affidavits or other evidence reasonably acceptable to the Title Insurer
showing and/or confirming that such judgments, bankruptcies or other matters are
not against Seller, or any affiliates.
Notwithstanding anything in this Section or Agreement to the contrary,
Seller may elect to not pay off any mechanic's or materialman's lien filed
against the Property in connection with the construction provided Seller bonds
any such lien to the reasonable satisfaction of Purchaser and the Title Insurer
and further provided that the Title Insurer issues, at Seller's cost, an
endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to
Section 10(c) below insuring against any loss or damage arising on account of
such lien. Seller shall have one (1) year from the Closing Date to finalize and
cause the release of any mechanic's or materialman's lien filed against the
Property in connection with Seller's work to construct, complete and/or to
perform warranty work on the Improvements pursuant to Section 15(3) below. This
provision shall survive the Closing.
6. UPDATED TITLE AND SURVEY. Not less than fifteen (15) business days
prior to the Closing, Seller shall deliver or cause to be delivered to Purchaser
(a) an as-built survey of the Property prepared by a surveyor licensed in the
State of Oklahoma (the "As-Built Survey") certified to Purchaser, Purchaser's
lender, if any, the Title Insurer and such other parties as Purchaser shall
designate in writing to Seller prior to ten (10) days before the Closing Date,
and prepared in accordance with the Accuracy Standards and Minimum Standard
Detail Requirements for ALTA-ACSM Land Title Surveys as adopted by the American
Land Title Association, the American Congress on Surveying and Mapping and the
National Society of Professional Surveyors in 1999, and prepared in accordance
with the items set forth in the Surveyor's Certificate and other
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requirements attached hereto as EXHIBIT "F" and made a part hereof, and (b) an
updated Title Commitment (including legible copies of any new title exception
documents not disclosed in the initial Title Commitment) for the Property.
Seller shall be responsible to pay for the costs of the As-Built Survey up to a
total cost of $1,000. Purchaser shall pay the costs of the As-Built Survey in
excess of $1,000. Notwithstanding the foregoing, if the cost of the As-Built
Survey is expected to exceed the amount that Seller is obligated to pay, then,
prior to ordering the same, Seller shall obtain Purchaser's prior approval of
the cost thereof. If either (i) the As-Built Survey shows any encroachments onto
the Property from any adjacent property, any encroachments by or from the
Property onto any adjacent property, or any violation of or encroachments upon
any recorded building lines, restrictions or easements affecting the Property
that are not Permitted Exceptions or any other matters that are not disclosed by
the original Survey, or (ii) such updated Title Commitment contains any
exception to title or reference any other matter that is not a Permitted
Exception or otherwise is not reflected in the original Title Commitment (any
such matters referenced in clauses (i) and (ii) above to be hereinafter
referenced to as, a "New Title/Survey Exception"), then Purchaser may, not later
than ten (10) business days after receipt of the last of the As-Built Survey and
updated Title Commitment (including legible copies of any new title exception
documents not disclosed in the initial Title Commitment), deliver to Seller a
notice (the "New Title and Survey Notice") identifying such New Title/Survey
Exceptions and Purchaser's objections thereto. Purchaser's failure to deliver
the New Title and Survey Notice as aforesaid shall be deemed Purchaser's
approval and acceptance of the As-Built Survey and updated Title Commitment, and
all matters shown and referenced thereon and therein shall be deemed Permitted
Exceptions. Purchaser's failure to raise in the New Title and Survey Notice any
matters that constitute New Title/Survey Exceptions as aforesaid shall be deemed
Purchaser's approval and acceptance such matters and such matters shall be
deemed Permitted Exceptions. If Purchaser shall deliver the New Title and Survey
Notice to Seller as aforesaid, then Seller shall, within two (2) business days
after receipt of the same, notify Purchaser, with respect to each new
Title/Survey Exception, whether Seller intends to either (a) cause any New
Title/Survey Exception to be removed, (b) have the Title Insurer issue a title
endorsement insuring against damage caused by any New Title/Survey Exception
(which endorsement shall be subject to the review and approval of Purchaser), or
(c) take no further action regarding such New Title/Survey Exception in which
event, subject to the immediately following sentence, such New Title/Survey
Exception shall become a Permitted Exception. Notwithstanding the foregoing,
Seller shall, at its expense, remove (or cause to be removed) or cause the Title
Insurer to insure over any New Title/Survey Exception that constitutes a
Monetary Exception. If Seller elects, or is deemed to have elected, item (c)
above, then Purchaser shall have the right, by delivering notice to Seller
within three (3) days after the expiration of the aforementioned two (2)
business day period (and the Closing Date shall be extended accordingly to
afford Purchaser such three (3) business day period), and without waiving any
rights of Purchaser for a Seller default under this Agreement, to either (i)
terminate this Agreement in which event the Xxxxxxx Money (and any interest
earned thereon) shall be immediately returned to Purchaser and thereupon neither
Seller nor Purchaser shall have any further rights, duties or obligations under
this Agreement, or (ii) waive its objection and accept title to the applicable
Property subject to such New Title/Survey Exception, in which event this
Agreement shall remain in full force and effect. Seller's failure to notify
Purchaser within the aforementioned two (2) business day period of which
foregoing course of action Seller elects to take with respect to a New
Title/Survey Exception shall be deemed Seller's election of item (c) above. With
respect to any New Title/Survey Objection that Seller has
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elected or is deemed to have elected not to take any further action, Purchaser's
failure to terminate this Agreement on or before the expiration of the
aforementioned three (3) business day period as aforesaid shall be deemed
Purchaser's waiver of its objection as provided in (ii) above. If the updated
Title Commitment discloses judgments, bankruptcies or other matters against
other persons having names the same as or similar to that of Seller, Seller, on
the Title Insurer's request, shall deliver to the Title Insurer affidavits or
other evidence reasonably acceptable to the Title Insurer showing and/or
confirming that such judgments, bankruptcies or other matters are not against
Seller, or any affiliates.
If Seller has elected or, with respect to Monetary Defects is required
to cure any Title/Survey Objection or any New Title/Survey Exception as provided
above (whether by removal of, or obtaining title insurance over, the same), but
failed to cure any such matters prior to the Closing Date, then Purchaser, and
without waiving any rights of Purchaser for a Seller default under this
Agreement, may elect to either (i) terminate this Agreement in which event the
Xxxxxxx Money shall be immediately returned to Purchaser and thereupon neither
Seller nor Purchaser shall have any further rights, duties or obligations under
this Agreement, (ii) waive its objection and accept the Property subject to such
Title/Survey Objection or New Title/Survey Exception, in which event this
Agreement shall remain in full force and effect; provided, however, that if the
Title/Survey Objection or New Title/Survey Exception, is a Monetary Exception,
then Purchaser shall have the right to deduct from the Purchase Price the amount
of such Monetary Exception, and any amount so deducted from the Purchase Price
shall be paid to the appropriate party in exchange for the removal of such
Monetary Exceptions; or (iii) xxx Seller for specific performance.
Notwithstanding anything in this Section or Agreement to the contrary, Seller
may elect to not pay off any mechanic's or materialman's lien filed against the
Property in connection with the construction provided Seller bonds any such lien
to the reasonable satisfaction of Purchaser and the Title Insurer and further
provided that the Title Insurer issues, at Seller's cost, and endorsement to
Purchaser's final Owner's Title Policy to be issued pursuant to Section 10(c)
below insuring against any loss or damage arising on account of such lien.
Seller shall have one (1) year from the Closing Date to finalize and cause the
release of any mechanic's or materialman's lien filed against the Property in
connection with Seller's work to construct, complete and/or to perform warranty
work on the Improvements pursuant to Section 15(3) below. This provision shall
survive the Closing.
7. OBJECTIONS TO INVESTIGATIONS. In the event that the results of the
inspections, investigations, reviews and feasibility studies to which reference
is made in Paragraph 4 above are, in Purchaser's sole opinion and within
Purchaser's sole discretion, unacceptable to Purchaser for any or no reason
whatsoever, and Purchaser so notifies Seller of the fact on or before the
expiration of the Inspection Period provided in Paragraph 4 hereof, then the
Xxxxxxx Money deposited by Purchaser with Escrow Agent hereunder, together with
all interest earned thereon, shall immediately be returned to Purchaser upon
Purchaser's demand, and this Agreement shall thereupon be terminated in its
entirety, and shall be of no further force and effect and all parties hereto
shall thereupon be relieved and absolved of any further liabilities or
obligations whatsoever to each other hereunder, except with respect to those
liabilities or obligations hereunder which are expressly stated to survive the
termination of this Agreement. The failure of the Purchaser to notify Seller of
the unacceptability of any such inspections, investigations, reviews and
feasibility studies prior to the expiration of the Inspection Period shall
constitute a waiver of Purchaser's right to terminate this Agreement on
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account thereof, in which event the Xxxxxxx Money shall be non-refundable to
Purchaser, except in the event of a default hereunder by Seller or the failure
of a condition precedent contained in this Agreement to Purchaser's obligation
to close the transaction contemplated by this Agreement. Furthermore, at any
time prior to the Closing, Purchaser shall have the right to update any and all
of the physical, environmental, engineering and feasibility reports,
inspections, examinations, test and studies that Purchaser performed pursuant to
Paragraph 4 above (the "Due Diligence Update"). If any of the Due Diligence
Updates raise or disclose any matters or conditions that were not disclosed by
Purchaser's initial physical, environmental, engineering and feasibility
reports, inspections, examinations, tests and studies performed pursuant to
Paragraph 4 above and any such new matters or conditions unacceptable to
Purchaser in its sole and absolute discretion, then Purchaser shall have the
right (without waiving any rights under this Agreement for a Seller default) at
any time prior to Closing to terminate this Agreement in which event the Xxxxxxx
Money (and all interest earned thereon) shall be immediately returned to
Purchaser and neither Seller nor Purchaser shall have any further rights or
obligations under this Agreement. Within five (5) days of termination of this
Agreement by Purchaser pursuant to this Xxxxxxxxx 0, Xxxxxxxxx shall deliver to
Seller the Existing Due Diligence Items, but such delivery shall not be a
condition to the return of the Xxxxxxx Money to Purchaser.
Additionally, not less than fifteen (15) days prior to the Closing
Date, Purchaser shall notify Seller as to any Contracts that Purchaser elects
not to assume at Closing. Seller agrees that, except for the general
contractor's and architect's contracts, all such Contracts shall be terminated,
at Seller's cost and expense, on and as of the Closing Date. Seller shall
terminate, as of the Closing Date and at its sole cost and expense, the
employment of any employees of the Property and any and all property management
and leasing agreements relating to the Property. Seller shall be responsible for
the payment of any and all amounts due and payable under any such property
management and/or leasing agreements relating to the Property, as well as any
leasing commissions due any brokers in connection with the Lease.
8. APPRAISAL/ENVIRONMENTAL REPORTS. Not less than ten (10) business
days prior to the Closing Date, Seller shall cause the aforementioned existing
environmental reports and assessments relating to the Property to be updated and
re-certified to Purchaser, Purchaser's lender, if any, and any other parties
designated by Purchaser in writing to Seller prior to ten (10) days before said
reports are due to Purchaser. Seller shall be responsible to pay for the costs
of such update and re-certification up to a total of $1,000. Purchaser shall be
responsible to pay for the costs of such updates and re-certifications of such
existing environmental reports and assessments in excess of $1,000. Not less
than ten (10) business days prior to the Closing Date, Seller shall have new
appraisals of the Property prepared and issued to and in the name of Purchaser,
Purchaser's lender, if any, and any other parties designated by Purchaser in
writing to Seller prior to ten (10) days before said items are due to the
Purchaser. Seller shall be responsible to pay for the costs of such appraisals
up to a total of $1,000. Purchaser shall be responsible to pay for the costs of
such appraisals in excess of $1,000. Notwithstanding the foregoing, if the cost
of the aforementioned environmental reports and appraisals is expected to exceed
the amount that Seller is obligated to pay, then, prior to ordering the same,
Seller shall obtain Purchaser's prior approval of the cost thereof.
9. DELIVERIES AT CLOSING.
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(a) At the time of closing hereunder, Seller shall deliver the
following original documents for the Property:
(i) Special warranty deed conveying title to the Property
to Purchaser (or its nominee, assignee or the entities designated by
Purchaser as taking title to the Property) in the form attached hereto
as EXHIBIT "B" (modified as necessary to conform to local law) free
and clear of all liens, encumbrances and exceptions whatsoever, save
and except only for the Permitted Exceptions.
(ii) Duly executed Quit-Claim Xxxx of Sale in the form
attached as EXHIBIT "C".
(iii) Appropriate "Seller's Affidavit" or other acceptable
evidence addressed to the Title Insurer attesting to the absence of
liens, lien rights, rights of parties in possession (other than
Tenant) and other encumbrances arising under Seller (other than the
Permitted Exceptions) so as to enable Title Insurer to delete the
"standard" exceptions for such matters from Purchaser's owner's policy
of title insurance for the Property and otherwise insure any "gap"
period occurring between the closing and the recordation of the
closing documents.
(iv) Duly executed Assignment and Assumption of Agreement
for each the Lease (the "Lease Assignment") in the form attached as
EXHIBIT "D", together with all of the documents assigned thereby.
(v) An estoppel certificate relating to the Lease from
Tenant in the form and substance attached hereto as EXHIBIT "I" and
made a part hereof. The estoppel certificate shall be certified to
Purchaser and its nominee, assignee and/or the entities designated by
Purchaser as taking title to the Property and Purchaser's lender (and
their respective successors and assigns), if any.
(vi) Duly executed Assignment of Licenses, Permits, Plans,
Contracts, Warranties, and Intangible Property (the "License
Assignment") in the form attached as EXHIBIT "E", together with the
consent of the issuer thereof to such assignment if required by the
terms of the applicable warranty; in the event that the issuer of any
warranty charges a fee in connection with the assignment or requires
that any work be performed in connection with the assignment, then
such fee and the cost of work shall be paid by the Seller at the
Closing. Purchaser shall advise Seller in writing by the end of the
Inspection Period as to whether or not Purchaser accepts Exhibits B
and C of the License Assignment and Seller shall then advise Purchaser
in writing whether or not Seller will revise said exhibits. If
Purchaser gives no such notice by the end of the Inspection Period,
then Purchaser shall be deemed to have approved said exhibits.
(vii) Notice addressed to Tenant, signed by Seller, providing
notice of the sale of the Property and directing Tenant to send future
rent and notices to Purchaser.
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(viii) Originals of the Lease and any guaranty agreements
thereto and any originals of the Contracts and Licenses (to the extent
the same are in Seller's possession).
(ix) To the extent in the possession of Seller, a letter
from the applicable zoning authority for the Property confirming that
the Property is zoned for its current use. Purchaser may obtain any
current letters that it desires, provided, however, Seller agrees to
reasonably cooperate with Purchaser in obtaining any of the
aforementioned current zoning letters.
(x) Estoppel Certificates, if any, from all parties to any
operating agreements and/or reciprocal easement agreements to the
extent such parties are obligated to provide the same under the said
agreements confirming the terms of the operating agreements and/or
reciprocal easement agreements and confirming that there exist no
defaults under the such documents and no event or circumstance has
occurred that, with the giving of notice or passage of time, could
result in a default under such documents, which estoppel certificates
shall be certified to Purchaser and its nominee, assignee and/or the
entities designated by Purchaser as taking title to the Property and
Purchaser's lender (and their respective successors and assigns), if
any. Purchaser shall give Seller in writing by the end of the
Inspection Period the operating agreements and/or reciprocal easement
agreements for which Purchaser wants estoppel certificates or Seller
shall have no obligation to furnish Purchaser any estoppel
certificates.
(xi) Unqualified, final Certificates of Occupancy (or
temporary certificates of occupancy acceptable to Purchaser) for the
Property.
(xii) An appropriate FIRPTA Affidavit or Certificate by
Seller, evidencing that Seller is not a foreign person or entity under
Section 1445(f)(3) of the Internal Revenue Code, as amended.
(xiii) Certificate of insurance from Tenant, in the form and
coverages as provided in the Lease, naming Purchaser, the entity
taking title to the applicable Property and Purchaser's lender as
additional insureds or loss payees, as applicable provided Purchaser
has given Seller the names of the applicable entities to be insured at
least ten (10) days prior to the Closing Date.
(xiv) A duly executed counterpart of the closing statement.
(xv) A certificate of Seller verifying that the
representations and warranties made in this Agreement are true and
correct at the time of Closing hereunder.
(xvi) To the extent in Seller's possession, all security
cards and passes and keys to the Property and improvements located
thereon.
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(xvii) To the extent not delivered to Purchaser prior to the
Closing Date, originals (or if Seller does not have the original,
copies certified by Seller as being true, complete and correct copies
of what Seller possesses in its files) of all (a) as-built plans and
specifications, surveys, site plans, engineering plans and studies,
utility plans and development plans related to the Property, (ii) all
guaranties and warranties relating to the construction of the
improvements located upon the Property (including, without limitation,
construction warranties provided by the general contractor and any
subcontractors of any tier, and all of Seller's rights, if any, in any
roof warranty relating to the Leased Premises provided to the Tenant),
and (iii) all governmental licenses and permits relating to the
Property.
(xviii) Three (3) original assignments of Seller's right, title
and interest (including any and all warranties thereunder) in, to and
under the construction contract between Seller and its general
contractor (including, any amendments thereto or change orders in
respect thereof, the "Construction Contracts"), in the form attached
hereto as EXHIBIT "G", subject to approval by the general contractor,
and made a part hereof, duly executed by Seller, which assignment will
provide for Seller to remain responsible to pay any and all amounts
due and payable, or that become due and payable, under the
Construction Contracts.
(xix) Three (3) original assignments of Seller's right, title
and interest in, to and under any and all architect's agreements
(including, any amendments thereto or change orders in respect
thereof, the "Architect's Agreement"), in the form attached hereto as
EXHIBIT "H", subject to approval by the architect, and made a part
hereof, duly executed by Seller, which assignment will provide for
Seller to remain responsible to pay any and all amounts due and
payable, or that become due and payable, under the Architect's
Agreement.
(xx) An estoppel letter from the general contractor,
pursuant to which the general contractor (a) confirms that there exist
no defaults under the Construction Contracts and that no event or
circumstance has occurred that, with the giving of notice or passage
of time, could result in a default under the Construction Contracts,
(b) confirms what amount has been paid as of the Closing Date together
with any remaining amount to be paid the general contractor and (c)
agrees to continue performance on and after the Closing. In the event
that the Construction Contract has not been paid in full by Seller by
the Closing Date, then at Closing an amount equal to the unpaid
portion of the Construction Contract shall be escrowed from Seller's
proceeds with the Escrow Agent until such time as the general
contractor is paid in full and the general contractor and all material
subcontractors have executed unconditional releases of lien for the
Property (and/or released any liens filed against the Property), and
Seller shall defend, hold harmless and indemnify Purchaser and each
Acquiring Entity from and against any and all claims, costs, expenses
(including, but not limited to, reasonable attorneys fees and
litigation costs), damages, judgments, demands, penalties, fines,
interest and liabilities, and for any
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STORE NO. 2872R
and all loss of life, injury to persons or damage to property due to
or resulting from, directly or indirectly, Seller's non-payment of the
Construction Contracts.
(xxi) An estoppel letter from the architect under the
Architect's Agreement pursuant to which the architect (a) confirms
that there exist no defaults under the Architect's Agreement and that
no event or circumstance has occurred that, with the giving of notice
or passage of time, could result in a default under the Architect's
Agreement, (b) confirms that any and all amounts due and payable to
such parties as of the Closing Date have been paid, and (c) agrees to
continue performance on and after the Closing.
(xxii) Evidence that Seller has terminated (and paid any
termination fees associated therewith) any and all Contracts that
Purchaser elected not to assume pursuant to Section 7 above (except
that Purchaser shall not have the right to terminate either the
general contractor or architect's contracts).
(xxiii) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
(b) At the time of closing hereunder, Purchaser shall deliver the
following original documents for each Property:
(i) Duly executed Lease Assignment.
(ii) A duly executed counterpart of the closing statement.
(iii) Notice addressed to Tenant, signed by Purchaser,
providing notice of the sale of the Property and directing Tenant to
send future rent and notices to Purchaser.
(iv) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
10. CLOSING. At least thirty (30) days prior to the earlier to occur of
(a) Seller's estimate of the date of Completion of the Leased Premises, and (b)
December 31, 2003, Seller shall deliver to Purchaser notice stating the
estimated Completion date (the actual date upon which Completion is achieved to
be referred to as the "Completion Date"). The Purchase Price and the aforesaid
executed closing documents shall be delivered, and the purchase and sale
transaction contemplated in this Agreement shall otherwise be consummated
subject to the other terms and provisions of, and satisfaction of all conditions
to Closing contained in, this Agreement (the "Closing"), on a date which is the
earlier to occur of (i) ten (10) days after the Completion Date and (ii)
December 31, 2003 (the "Closing Date"); provided, however, that Seller may elect
to close this transaction between January 2, 2004 and January 30, 2004 upon
written notice of such election to Purchaser on or before December 10, 2003. The
Closing shall occur by mail to the offices of Escrow Agent. Notwithstanding
anything contained in this Agreement to the contrary, Purchaser's obligation to
close hereunder is conditioned upon all of the following:
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STORE NO. 2872R
(a) All Rent shall be current under the Lease with no delinquencies
as to any Rent due and payable on or before the Closing Date.
(b) All representations and warranties of Seller contained in this
Agreement being true and correct at and as of the Closing Date, and all
obligations of Seller to have been performed on or before the Closing Date
having been timely and duly performed (including, without limitation,
delivery of all of the closing documents referenced in Paragraph 9 above).
(c) The issuance of a final ALTA title insurance policy (or a marked
commitment therefor, with the original title insurance policy to follow)
pursuant to and in accordance with the updated Title Commitment (in form
and substance approved by Purchaser, including the issuance of all
endorsements thereto and the removal of any of Purchaser objections
pursuant to Paragraphs 5 and/or 6 above) insuring fee simple title to the
Property in Purchaser (or the entity that takes title to the applicable
Property) as of the Closing Date in the amount of the Purchase Price,
subject only to the Permitted Exceptions, and containing no exception for
mechanics' liens (unless appropriately bonded by Seller) and containing
such affirmative insurance as may be available in the state in which the
Property is located insuring that the Purchaser's fee title shall not be
subject to any mechanics' liens.
(d) The Leased Premises shall have been Completed (as defined in
Paragraph 15 below) as required in Paragraph 15 below.
(e) Purchaser's receipt of any and all estoppel certificates required
to be delivered by Seller, all in form and substance reasonably acceptable
to Purchaser.
If any conditions precedent contained in this Agreement to Purchaser's
obligation to close the transaction contemplated by this Agreement shall not be
satisfied (or, in Purchaser's sole and absolute discretion, waived) by the
Closing Date, then Purchaser, by notice to Seller on or before the Closing Date,
may elect either to terminate this Agreement, without waiver or release of any
of its remedies for a Seller default, or to seek specific performance of this
Agreement, unless, with respect only to Purchaser's right to seek specific
performance of this Agreement, the condition is not satisfied due to matters out
of Seller's control such as a third party refusing to sign a document required
under this Agreement. If this Agreement is terminated as provided in the
immediately preceding grammatical sentence, then the Xxxxxxx Money and any
interest thereon shall forthwith be returned to Purchaser, and all other funds
and documents theretofore delivered hereunder or deposited in escrow by either
party shall be forthwith returned to such party.
11. CLOSING COSTS. Purchaser shall pay for (i) any charges for any
extended coverage and/or the Special Endorsements; (ii) the costs of Purchaser's
inspections of the Property; (iii) the cost of recording said special warranty
deed and other instruments of conveyance; (iv) one-half of any escrow fee, not
to exceed TWO HUNDRED FIFTY AND 00/100 DOLLARS ($250.00); (v) the costs of the
appraisals and environmental reports relating to the Property to the extent
provided in Section 8 above; (vi) the costs of the As-Built Survey relating to
the Property to the extent provided in Section 6 above; and (vi) any other costs
customarily paid by purchasers of similar property. Seller shall pay for (i)
documentary stamp taxes or any other state, county and/or local transfer taxes
required to be paid with respect to the special warranty deeds, if any; (ii) the
cost of recording any
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STORE NO. 2872R
corrective title instruments; (iii) the premiums for the owner's title insurance
policy to be issued pursuant to the updated Title Commitment, excluding any
charges for any extended coverage and/or the Special Endorsements to the title
insurance policies which shall be paid by Purchaser; (iv) costs to remove, or
costs of endorsements providing insurance coverage over any Title/Survey
Objection or New Title/Survey Exception; (v) the costs of the appraisals, and
environmental reports relating to the Property to the extent provided in Section
8 above; (vi) the costs of the As-Built Survey relating to the Property to the
extent provided in Section 6 above; (vii) the costs of the Title Commitments
(including all updates thereof) and the Survey of the Property; (viii) one-half
of any escrow fee, not to exceed TWO HUNDRED FIFTY AND 00/100 DOLLARS ($250.00);
and (ix)any other costs customarily paid by sellers of similar Property. Each
of Purchaser and Seller shall bear its own attorneys' fees.
12. Prorations. The following prorations shall be made between Purchaser
and Seller as of the date of Closing (for the purposes of the following
prorations, Purchaser shall be deemed to be the owner of the Property for the
entire Closing Date):
(a) Seller shall receive a credit, if any, for any ad valorem taxes,
assessments, maintenance costs or other costs and expenses advanced by
Seller, if any (collectively the "Advances"), which (i) are attributable to
the Closing Date and the period subsequent thereto, or (ii) are
reimbursable to Seller by Tenant pursuant to the Lease, but have not been
received by Seller as of the Closing Date. Seller agrees to remit to
Purchaser, within thirty (30) days of receipt of same, all reimbursements
received from Tenant after the Closing Date for all such Advances that are
credited to Seller at Closing.
(b) Purchaser shall receive a credit, if any, for any ad valorem
taxes, assessments, maintenance costs or other costs and expenses, if any,
prepaid by Tenant to Seller (i) that relate to the Closing Date and period
subsequent to the Closing Date, or (ii) are (or may become) owed by Seller
to Tenant pursuant to the Lease, but have not been paid to Tenant as of the
Closing Date.
(c) Purchaser shall receive a credit against the Purchase Price in an
amount equal to the sum of (i) any and all leasing or other commissions due
and payable (or that may become due and payable) in connection with the
Lease, (ii) any and all tenant improvement and other allowances and
concessions due, payable or owed (or that may become due, payable or owed)
under the Lease, and (iii) any and all budgeted capital expenditures
relating to the Property that have not been paid as of the Closing Date.
(d) All Rent and other amounts payable by the Tenant to the Landlord
under the Lease attributable to the period prior to the Closing Date shall
be the property of Seller, and all Rent and other amounts payable by the
Tenant to the Landlord under the Lease attributable to the Closing Date and
the period subsequent thereto shall be the property of Purchaser. If Rent
due for the month in which the Closing Date occurs has been paid by Tenant
to Seller prior to the Closing Date, then such Rent shall be the property
of Seller and Purchaser shall receive a credit for all such Rent
attributable to the Closing Date and the period subsequent thereto. If Rent
due for the month in which the Closing Date occurs has not been paid by
Tenant to Seller prior to the Closing Date, then such Rent shall be the
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STORE NO. 2872R
property of Purchaser and Seller shall receive a credit for all such Rent
attributable to the period prior to the Closing Date. Purchaser and Seller
each agree to remit to the other, within thirty (30) days after receipt of
same, all Rent received by them after the Closing Date which is defined as
the property of the other party pursuant to the terms of this subparagraph,
which obligation shall expressly survive Closing hereunder. Purchaser shall
receive a credit against the Purchase Price in an amount equal to all
security deposits, if any, required under the Lease, provided however,
Purchaser shall assume all obligations of the aforementioned security
deposits as required under the Leases.
(e) As of the Closing, any and all ad valorem taxes and assessments
attributable to the Property (collectively, "Taxes") for calendar year 2002
and all prior calendar years shall be paid by Seller. Taxes for calendar
year 2003 that remain unpaid as of the Closing shall be prorated as between
Seller and Purchaser as follows: (a) Seller shall be responsible for the
aggregate amount of Taxes (less any portion thereof payable by the Tenant
pursuant to the Lease) levied or assessed against the Property during, or
attributable to the Property for, calendar year 2003, multiplied by a
fraction, the numerator of which shall be the number of days during
calendar year 2003 that Seller owned the Property, and the denominator of
which shall be 365; and (b) Purchaser shall be responsible for the
aggregate amount of Taxes (less any portion thereof payable by the Tenant
pursuant to the Lease) levied or assessed against the Property during, or
attributable to the Property for, calendar year 2003, multiplied by a
fraction, the numerator of which shall be the number of days during
calendar year 2003 that Purchaser owned the Property, and the denominator
of which shall be 365. Any Taxes attributable to calendar year 2003 that
are due and payable as of the Closing Date shall be paid by Seller as of
the Closing Date as part of the proration of Taxes payable by Seller
pursuant to the prior sentence. If the final amount of Taxes for calendar
year 2003 are not known at the Closing, then Seller and Purchaser shall, in
good faith, estimate the amount of same at Closing, and shall re-prorate
such Taxes within thirty (30) days of the date that the final amount shall
be determined (i.e., issuance of the final Tax xxxx for calendar year
2003).
(f) If and to the extent applicable, Purchaser shall receive a credit
against the Purchase Price in amounts equal to the Lease Rent Credit and/or
the Late Delivery Credit (as such terms are defined in Section 15(3)
below).
(g) Any other items of revenue, income and expense not prorated
pursuant to any of clauses (a) through (e) above shall be prorated as of
the Closing Date such that (i) Seller shall receive the benefit of all
revenue and income, and shall be obligated for the payment of all expenses,
attributable to the period of time prior to the Closing Date, and (ii)
Purchaser shall receive the benefit of all revenue and income, and shall be
obligated for the payment of all expenses, attributable to the Closing Date
and the period of time after the Closing Date.
(h) If the actual amount of any item to be prorated/credited pursuant
to this
(i) Section 12 cannot be determined as of the Closing Date, then
Seller and Purchaser shall, in good faith, estimate the amount of such
item, and shall re-prorate such item within thirty (30) days after the date
that the actual amount of such item is determined.
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13. COMMISSIONS. Seller hereby represents and warrants to Purchaser that
Seller has not dealt with any broker or finder with respect to the transaction
contemplated hereby. Seller hereby agrees to indemnify Purchaser for any claim
for brokerage commission or finder's fee asserted by any person, firm or
corporation claiming to have been engaged by Seller. Purchaser hereby represents
and warrants to Seller that Purchaser has not dealt with any broker or finder in
respect to the transaction contemplated hereby, and Purchaser hereby agrees to
indemnify Seller for any claim for brokerage commission or finder's fee asserted
by any person, firm or corporation claiming to have been engaged by Purchaser.
14. PROPERTY SOLD "AS-IS". EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
THE PROPERTY SHALL BE SOLD AND CONVEYED BY SELLER AND ACCEPTED BY PURCHASER IN
"AS IS" CONDITION WITHOUT ANY WARRANTY OR REPRESENTATION WHATSOEVER ON THE PART
OF SELLER, EXPRESS OR IMPLIED, AS TO THEIR CONDITION, CLASSIFICATION, PAST OR
PRESENT USE, OR MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PARTICULAR
PURPOSE, USE, DESIGN, CONSTRUCTION OR DEVELOPMENT, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OR REPRESENTATION AS TO SURFACE OR SUBSURFACE CONDITION, ZONING, OR
THE SUFFICIENCY, ACCESSIBILITY AND CAPACITY OF UTILITIES FOR PURCHASER'S
INTENDED USE OF THE PROPERTY, IT BEING AGREED THAT, EXCEPT FOR SELLER'S
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ALL SUCH RISKS ARE
TO BE BORNE BY PURCHASER AND THAT PURCHASER IS RELYING SOLELY ON ITS OWN
INSPECTION AND INVESTIGATION OF THE PROPERTY WITH RESPECT THERETO AND NOT ON ANY
STATEMENT, REPRESENTATION OR WARRANTY MADE BY SELLER OR ANYONE ACTING OR
CLAIMING TO ACT ON BEHALF OF SELLER.
15. REPRESENTATIONS AND WARRANTIES; COVENANTS. Each party warrants and
represents the following to the other that:
(a) It shall perform its duties and obligations under this Agreement
in accordance with the terms and conditions of this Agreement.
(b) This Agreement constitutes the valid and binding obligation of
each party, enforceable against each party in accordance with the
Agreement's terms. All actions required to be taken by each party to
authorize it to enter into and carry out this Agreement have been, or prior
to the date of closing hereunder shall be, duly and validly taken.
Seller further represents and warrants to Purchaser that:
(i) to the best of Seller's knowledge that there are no
pending, existing, or threatened: (a) condemnation proceedings against
the Property or any portions thereof, (b) widening, change of grade or
limitation on use of streets abutting the Property, (c) special tax or
assessment to be levied against the Property, (d) change in the zoning
classification of the Property, or (e) change in the tax assessment of
the Property.
(ii) to the best of Seller's knowledge, the Property is
leased as Eckerd Drug Stores for twenty (20) year terms at the
annualized base rental payments,
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STORE NO. 2872R
subject to adjustment as provided in the Lease as a triple net lease
covering the building and all of the real property and parking areas
located on the Property, together with the reciprocal easements and
REA/OEA agreements (if any) affecting the Property, for the entire
terms and option periods thereof.
(iii) to the best of Seller's knowledge and subject to
anything contained in the Existing Due Diligence Documents, the
Property and the Leased Premises are free of violations, and the
interior and exterior structures shall be, when Completed, free of
leaks, structural defects and mold, and that the Property are and at
Closing shall be in full compliance with federal, state, city and
county ordinances, environmental laws, and that no third party has an
option or right of first refusal to purchase the Property except as
stated in the Leases.
(iv) neither Seller nor, to the best of Seller's knowledge,
Tenant (or any guarantor thereof) are in default on the Lease nor is
there any threatened or pending litigation against the Seller or the
Property. In addition, the Lease is the only occupancy or lease
agreement in effect for or on the Property.
(v) Seller owns the Property and is the landlord under the
Lease.
(vi) To the best of Seller's knowledge, the Lease is in good
standing and full force and effect, and no rights or interests of the
landlord thereunder have been waived or released. Seller has no
knowledge of any circumstances affecting the financial condition of
any tenant of the Property which would prevent such tenant from
fulfilling and complying with the obligations under its Lease. To the
best of Seller's knowledge, except for Seller and Tenant pursuant to
the Lease, there are no persons in possession or occupancy of the
Property or any part thereof, nor are there any persons who have
possessory rights in respect to the Property or any part thereof.
Except as provided in the Existing Due Diligence Items provided to
Purchaser and to the best knowledge of Seller: (a) there are no
leasing or other commissions due and payable in connection with the
Lease; (b) there are no tenant improvement or other allowances or
concessions due, payable or owed, or that may become due, payable or
owing, to Tenant under the Lease; and (c) except for construction of
the Leased Premises in accordance with the terms of the Lease, there
are no budgeted capital improvements or other capital expenditures
that Seller anticipates making or incurring with respect to the
Property.
(vii) except to the extent disclosed on EXHIBIT "J" attached
hereto and made a part hereof, to the best of Seller's knowledge,
prior to and during Seller's ownership of the Property, (i) no
hazardous substances, materials or waste which is regulated by any
governmental authority have been located on the Property or have been
released into the environment, or discharged, placed or disposed of
at, on or under the Property; (ii) no underground storage tanks have
been located on the Property; (iii) the Property has never been used
as a dump for waste material; and (iv) the Property and its prior uses
comply with and at all times have complied with, any applicable
governmental law, regulation or requirement relating to environmental
and
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STORE NO. 2872R
occupational health and safety matters. No hazardous substances,
materials or waste shall be incorporated into the construction of the
Improvements.
(viii) Construction of the Leased Premises commenced on
June 10,2003, and is scheduled to be completed on October 24, 2003.
(ix) Seller has complied with all terms and provisions of
the Lease to have been complied with as of the date this
representation is made, and Seller has satisfied any and all
conditions and requirements of the Lease to have been satisfied as of
the date this representation is made, including, without limitation,
the terms, provisions, conditions and requirements of Sections
9.8.1.1, 9.8.1.2., 9.8.1.3 and 9.8.1.4 of the Lease.
(x) To the best of Seller's knowledge, the costs of
development and construction of the Leased Premises is on budget in
accordance with the Build to Suit Development Budget attached to the
Lease.
(xi) Seller has procured and obtained any and all required
permits, variances, approvals and other Licenses relating to the
development and construction of the Leased Premises in accordance with
the Lease. Each of the Licenses is in full force and effect and in
good standing, and neither Seller nor any agent or employee of Seller
has received notice of any intention on the part of the issuing
authority to cancel, suspend or modify any of the Licenses or to take
any action or institute any proceedings to effect such a cancellation,
suspension or modification.
(xii) There have been no modifications, alterations,
deviations or change orders to the Guide Plans (as defined in the
Lease) for the Property, except: NONE; and the construction of the
Improvements is proceeding in accordance and compliance with the Guide
Plans.
(xiii) There are no defaults under any of the Construction
Contracts or the Architect's Agreement, and all of the Construction
Contracts and Architect's Agreement are in good standing and in full
force and effect.
(xiv) Seller does not own any real property located within
one thousand feet (1000') of any exterior boundary of the Property.
(xv) Seller has no management, leasing, service,
maintenance, operating, repair, consulting, professional service,
advertising, promotion, public relations, construction, development,
architect's, contractors, sub-contractors, vendors, suppliers,
materialmen and other contracts and commitments (excluding the Lease
and the warranty obligations under the general contractor's and
architect's agreements for the Improvements) in any way relating to
the Property or any part thereof (including, without limitation, the
design, development and construction of the Improvements [as defined
in Paragraph 15] which shall survive the Closing (again, however,
subject to the Lease and respective warranty obligations pursuant to
18
STORE NO. 2872R
the general contractor's and architect's agreements for the
Improvements); no equipment leases, rights and options, including
rights to renew or extend the term or purchase the leased equipment,
relating to equipment or property located in or upon the Property or
used in connection therewith which shall survive the Closing;
(xvi) Seller will receive no warranty concerning the
construction of the Improvements other than from the general
contractor. In addition, Seller does not have any plans, guaranties or
roof warranties, relating to the Property or the construction of the
Improvements other than as furnished or assigned to Purchaser at the
Closing.
(xvii) To Seller's knowledge the Property is not encumbered by
any property management agreement and Seller has not engaged for or
placed at the Property any property manager, employees or leasing
agent or broker.
Each representation and warranty of each party contained in this
Agreement shall be true and accurate as of the date hereof, shall be deemed
to have been made again at and as of Closing and shall then be true and
accurate in all material respects, and shall survive the Closing, provided
however, such representations and warranties shall not survive beyond one
(1) year after the Closing Date.
Seller hereby covenants that:
(1) Seller, at Seller's sole cost and expense, shall keep
and perform (or cause to be performed) all obligations of the landlord
under the Lease, and all obligations of the Property owner or its
agents under the Contracts (including, without limitation, the
Construction Contracts and the Architect's Agreement) and Licenses, to
and including the Closing Date or termination of this Agreement and
Seller shall furnish Buyer with copies of documentation showing
Seller's complying with all obligations as landlord under the Lease.
On the Closing Date, Seller shall tender possession of the Property to
Purchaser in the same condition the Property was in when last
inspected by Purchaser, except for ordinary wear and tear, casualty
loss and condemnation, and except for construction of the Leased
Premises in accordance and compliance with the terms and provisions of
the Lease. Not less than ten (10) days prior to the Closing Date,
Seller shall deliver to Purchaser, for Purchaser's review and
approval, executed copies of all estoppel certificates to be delivered
at Closing pursuant to Paragraph 9 hereof. At Closing, Seller shall,
at its sole cost and expense, terminate any property management
agreement, leasing agreement and/or insurance policies maintained by
Seller related to the Property.
(2) Seller shall notify Purchaser promptly if Seller
becomes aware of any transaction or occurrence prior to the Closing
Date which would make any of the representations or warranties of
Seller contained in this Agreement not true and correct in any
respect. Additionally, Seller promptly shall deliver to Purchaser any
notices and written communications sent to or received from Tenant.
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STORE NO. 2872R
(3) Pursuant to the terms of the Lease, Seller is obligated
to construct upon the Property certain buildings and other
improvements (collectively, the "Improvements") in accordance and
compliance with the Guide Plans and the Lease. Seller covenants and
agrees to construct the Improvements in accordance and compliance with
the Guide Plans, the Lease and all applicable licenses, laws,
ordinances, rules and regulations (including, without limitation, the
Americans with Disabilities Act) (collectively, "Legal Requirements").
Seller shall construct the Improvements at its sole cost and expense,
and shall be obligated to pay all impact fees, tap fees,
transportation impact fees, water and sewer reservation fees and any
other sums which may be payable to any governmental agency in
connection with construction and initial occupancy of the Property
and/or the Leased Premises, including, without limitation, any of such
fees which are payable in connection with any tenant improvements to
be installed in the Property. In addition, Seller agrees to cause all
water, sewer, gas, electric, telephone, drainage and other utilities
and exterior facilities required by the Lease (which shall include,
without limitation, landlord's obligations under Sections 10.1 and
11.2 of the Lease) and/or by law for the normal and proper operation
of the Property to be constructed and installed to the Improvements,
connected with valid permits, and in good repair, condition and
working order at the Closing. Seller agrees that it shall obtain a
certificate of occupancy for each building which constitutes a part of
the Improvements, together with certificates of occupancy for all
tenant spaces. Seller covenants that Completion shall be achieved no
later than December 31, 2003 (the "Outside Completion Date"). Seller
agrees to deliver to Purchaser from time to time, but not less
frequently than once per calendar month, written progress reports in
respect of the progress of Completion of the Improvements, and shall
deliver to Purchaser any and all progress reports or similar documents
received from any contractor describing its progress with the
construction of the Improvements. Seller shall notify Purchaser in
writing, and provide Purchaser with a revised construction schedule,
at any time that any delays in construction will delay the expected
final Completion Date beyond the Outside Completion Date. At or prior
to Closing Seller will deliver to Purchaser a copy of the roof
warranty for the Improvements. It shall be a condition precedent to
Purchaser's obligations to consummate the purchase of the Property
that the Seller shall have satisfied all of its obligations under this
subsection (3) required to have been performed on or before the
Closing Date. For the purposes of this Agreement, the terms
"Complete", "Completed" and "Completion" shall mean that all of the
following conditions shall have been satisfied: (a) the Leased
Premises and Improvements are fully complete as required, described,
defined and provided in the Lease, including, without limitation,
Section 9.4 of the Lease, (b) the Tenant has accepted the Leased
Premises, and is open and operating for business in the Leased
Premises, (c) final, unconditional certificates of occupancy for the
base building and the tenant space have been issued by all applicable
governmental entities, (d) Seller's architect has issued to Purchaser
a certificate pursuant a certificate pursuant to which such architect
certifies that the Leased Premises have been completed in accordance
and compliance with all Legal Requirements, the Guide Plans and the
Lease, and (e) all conditions to completion set forth in Section 9.4
of the Lease have been satisfied.
20
STORE NO. 2872R
Sub-sections (a) and (e) of this paragraph shall be satisfied upon
Seller furnishing Purchaser an estoppel certificate from Tenant in the
form shown in EXHIBIT "I" together with the delivery by Seller to
Purchaser of the respective documents listed in Section 9.4 of the
Lease. If, as of the Closing Date, Tenant shall not be paying full
Rent under and pursuant to the terms of the Lease, then, at Closing,
Purchaser shall receive a credit against the Purchase Price in an
amount equal to the (i) all Rent and other amounts that would be due
and payable under and pursuant to the Lease (as if the Rent
Commencement Date was the Closing Date for the period of time
commencing as of the Closing Date and ending on the date that Tenant
is expected to commence paying full Rent under the Lease, and (ii) the
amount of Taxes attributable to the period of time commencing as of
the Closing Date and ending on the date that Tenant is expected to
commence paying full Rent under the Lease (the "Lease Rent Credit").
Additionally, if Tenant shall be entitled to any penalties,
abatements, credits, rent reductions and other concessions (including,
without limitation, any rent credits to which Tenant is entitled
pursuant to Section 3.1 of the Lease) under the Lease on account of
the failure to deliver the applicable Leased Premises to Tenant within
the time period required by the applicable Lease, then at Closing,
Purchaser shall receive a credit against the Purchase Price in an
amount equal to the aggregate of all such penalties, abatements,
credits, rent reductions and other concessions (the "Late Delivery
Credit"). The Lease Rent Credit and the Late Delivery Credit shall be
subject to recalculation within thirty (30) days after Tenant
commences the payment of full Rent under the Lease. If, once Tenant
commences the payment of full Rent under the Lease, Seller and
Purchaser determine that the actual amount of the Lease Rent Credit
and/or the Late Delivery Credit differs from the amount credited to
Purchaser at Closing, then, as the case may be, Seller shall pay to
Purchaser any additional Lease Rent Credit or Late Delivery Credit, or
Purchaser shall refund to Seller any excess Lease Rent Credit or Late
Delivery Credit received by Purchaser at Closing. In connection with
the foregoing, Seller agrees to (i) comply with and satisfy Sections
9.8.2 through and including 9.8.5 of the Lease and Section 9.8.9 of
the Lease, (ii) provide notice to Purchaser of any Rent adjustment
pursuant to Sections 9.8.6 and 9.8.7 of the Lease and (iii) otherwise
refund to the Tenant any rents collected by Seller which are required
to be refunded pursuant to Section 9.8.8 of the Lease. These covenants
with respect to the Lease shall survive the Closing.
(4) For a time period of one (1) year after the Lease
Commencement Date, Seller shall be and remain responsible for (i)
completing any warranty work or curing any defaults as required by the
landlord under the Lease, (ii) repairing any defects in labor or
workmanship regarding the initial construction of the Improvements,
and (iii) performing any and all other obligations of the landlord
under the Lease in respect of the development and construction of the
Improvements. In the event that the Seller fails to comply with the
foregoing obligations, Purchaser may, after giving thirty (30) days
written notice to Seller and Seller having failed to commence and
diligently pursue to completion curative action within said time
period, proceed to remedy such default on its own and shall have
recourse against Seller for any expenses incurred thereby. Neither
payment nor acceptance of the Purchase Price nor
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STORE NO. 2872R
any provision in this Agreement will be deemed to constitute a waiver
by Purchaser of Seller's responsibility under this Section 15(4). This
Section 15(4), and all provisions contained herein, shall survive the
Closing. The obligations of the Seller pursuant to this Section 15(4)
shall continue beyond the one-year period specified herein as to
warranty work or the curing of any defaults required by the landlord
pursuant to the Lease if such defect or default is discovered during
the one-year warranty period and is not cured by the Seller within
that one year warranty period. In other words, defects or defaults
which arise or exist prior to the date of expiration of the one-year
warranty period must be cured and corrected by the Seller even though
the curing or corrective action may not be commenced or completed
until after the date of expiration of the one-year warranty period.
Seller shall and hereby agrees to indemnify and hold harmless
Purchaser for any and all liabilities, damages, losses, or any claim
associated with or arising out of Seller's or the general contractor's
work to complete the Improvements, including all warranty work and
access by Seller or the general contractor (or their respective
employees or subcontractors) which inflicts or causes damage to the
Property or injury or death to any person(s). In addition to the
foregoing, in connection with any warranty work for which Seller or
the general contractor are responsible: (i) Seller shall furnish to
Purchaser evidence of commercial general liability coverage for the
applicable contractors reasonably acceptable to Purchaser and (ii)
will use all diligence and reasonable efforts to minimize any
interference with Tenant's occupancy.
(5) From the date of this Agreement to the Closing Date or
earlier termination of this Agreement, if the Property becomes
operational, Seller shall manage and operate the same in a manner
consistent with management standards and business practice for
comparable Property in the Norman/Edmond, Oklahoma area.
Notwithstanding the foregoing, without the prior written consent of
Purchaser, Seller shall not do, suffer or permit, or agree to do, any
of the following:
(A) enter into any transaction in respect to or
affecting the Property out of the ordinary course of business:
(B) sell, encumber or grant any interest in the
Property or any part thereof in any form or manner whatsoever, or
otherwise perform or permit any act which will diminish or
otherwise affect Purchaser's interest under this Agreement or in
or to the Property or which will prevent Seller's full
performance of its obligations hereunder; or
(C) enter into, amend, waive any rights under,
terminate or extend any Contract (including, without limitation,
the Construction Contracts and the Architect's Agreement) or any
of the Leases.
16. DAMAGE AND CONDEMNATION. Seller shall notify Purchaser upon the
occurrence of any damage, destruction, taking or threat of taking affecting any
of the Property. In the event of any material damage to or destruction of a
Property, or any portions thereof, or in the event of any material takings or
threats of taking of any Property, or any portions thereof, by exercise of the
power
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STORE NO. 2872R
of eminent domain, Purchaser may elect to: (i) terminate this Agreement by
giving notice thereof to Seller within ten (10) days of receipt of notice from
Seller, whereupon this Agreement shall become null and void and the parties
shall be relieved of and released from any and all further rights, duties,
obligations and liabilities hereunder, except for those obligations which
survive the termination of this Agreement, or (ii) consummate the purchase of
all of the Property but receive a credit on the Purchase Price in an amount
reasonably satisfactory to both parties reflecting the loss in value of the
Property subject to the said damage, destruction, or condemnation whereupon, at
Closing, Seller shall assign any rights to any insurance proceeds or
condemnations awards, subject to the rights of Tenant and obligations of
Landlord under the Lease. Seller shall provide Purchaser with all information
received by Seller regarding any such damage, destruction, taking or threat of
taking which is reasonably necessary or useful to Purchaser in making the
election between such alternative. For the purposes of this paragraph,
"material" shall mean any damage, destruction or taking (i) which would allow
Tenant to terminate the Leases or xxxxx, or reduce the amount of, the rents due
under the Leases, or (ii) which would cause damage to the Property or Property
in excess of ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($150,000.00), or
(iii) which would unreasonably interfere with the access provided to the
Property, or (iv) cause a delay in the Completion of the Improvements beyond
December 31, 2003.
17. DEFAULT BY PURCHASER; SELLER'S REMEDIES. If the purchase and sale of
the Property is not consummated in accordance with the terms and conditions of
this Agreement due to default or breach on the part of Purchaser, then Seller,
at its election, may, as its sole remedy hereunder and at law or equity,
terminate this Agreement and obtain as valid liquidated damages the entire
Xxxxxxx Money, provided however, Seller shall first provide written notice to
Purchaser of said default and afford Purchaser five (5) days to cure such
default.
18. DEFAULT BY SELLER; PURCHASER'S REMEDIES. If the purchase and sale of
the Property is not consummated in accordance with the terms and conditions of
this Agreement due to default or breach on the part of Seller, then Purchaser,
at its election, may, provided Purchaser shall first provide written notice to
Seller of said default and afford Seller five (5) days to cure such default, (i)
avail itself of the remedy of specific performance and recover any and all costs
of obtaining specific performance, or (ii) terminate this Agreement and receive
a refund of the Xxxxxxx Money and interest earned thereon and Seller shall
reimburse Purchaser for any and all out-of-pocket costs and expenses incurred by
Purchaser in connection with the transaction contemplated by this Agreement
(including, without limitation, any and all due diligence costs, attorneys' fees
and lender's costs and fees) not to exceed FIFTY THOUSAND AND 00/100 DOLLARS
($50,000.00).
19. INTENTIONALLY DELETED.
20. ASSIGNMENT. Purchaser may assign its interest under this Agreement in
whole or in part. Upon any assignment by Purchaser, Purchaser shall not be
entitled to a release or substitution of the Xxxxxxx Money, but shall seek
reimbursement of same from Purchaser's assignee. Seller shall not assign this
Agreement or any of Seller's interests herein without Purchaser's prior written
consent.
21. NOTICES. Any notice, request, demand, tender or other communication
under this Agreement shall be in writing, and shall be deemed to have been duly
given at the time and on the
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STORE NO. 2872R
date when personally delivered, or upon being delivered to a nationally
recognized commercial courier for next day delivery, to the address for each
party set forth below, or upon delivery if deposited in the United States Mail,
Certified Mail, Return Receipt Requested, with all postage prepaid, to the
address for each party set forth below, or by facsimile with proof of delivery
of same. The time period in which a response must be made, or action taken, by a
party receiving such communication shall commence on the date of actual receipt
by such party. Rejection or other refusal to accept or inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of such communication. By giving prior notice to all other parties, any
party may designate a different address for receiving notices.
Notices to Seller: Commercial Net Lease Realty Service, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Purchaser: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxx, Esquire
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
22. GOVERNING LAW AND BINDING EFFECT. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Florida
and shall be binding upon, inure to the benefit of, and be enforceable by the
parties hereto as well as their respective heirs, personal representatives,
successors and assigns.
23. TIME OF ESSENCE. Time shall be of the essence in the performance of
the terms and conditions of this Agreement. In the event any time period
specified in this Agreement expires on a Saturday, Sunday or bank holiday on
which national banks in Orlando, Florida are closed for business, then the time
period shall be extended so as to expire on the next business day immediately
succeeding such Saturday, Sunday or bank holiday.
24. CAPTIONS. All captions, headings, paragraph and subparagraph numbers
and letters and other reference numbers or letters are solely for the purpose of
facilitating reference to this Agreement and shall not supplement, limit or
otherwise vary in any respect the text of this
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Agreement. All references to particular paragraphs and subparagraphs by number
refer to the paragraph or subparagraph so numbered in this Agreement.
25. ENTIRE AGREEMENT. This Agreement supersedes all prior discussions and
agreements between Seller and Purchaser with respect to the purchase and sale of
the Property. This Agreement contains the sole and entire understanding between
Seller and Purchaser with respect to the transactions contemplated by this
Agreement, and all promises, inducements, offers, solicitations, agreements,
representations and warranties heretofore made between the parties are merged
into this Agreement. This Agreement shall not be modified or amended in any
respect except by a written agreement executed by or on behalf of the parties to
this Agreement in the same manner as this Agreement is executed.
26. SURVIVAL OF PROVISIONS. The warranties, representations, agreements,
covenants and indemnities of the Seller and Purchaser provided for in this
Agreement shall survive the Closing under or termination of this Agreement only
to the extent expressly provided herein.
27. VALIDITY. In the event any term or provision of this Agreement is
determined by the appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or be construed
or deleted as such authority determines, and the remainder of this Agreement
shall remain in full force and effect.
28. ATTORNEY'S FEES. In the event of any litigation arising out of this
Agreement, the party prevailing (as determined by the court) in obtaining the
relief sought, in addition to all other sums that it may be entitled to recover,
shall be entitled to recover from the other party its reasonable attorney's fees
and expenses incurred as a result of such litigation.
29. EFFECTIVE DATE. This Agreement shall be effective on the date that the
last of both parties have executed this Agreement, as evidenced by the date set
forth beneath their signatures hereinbelow (the "Effective Date").
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each of the parties and delivered to the other party.
31. NO RECORDATION. Neither this Agreement nor any notice or memorandum
thereof shall be recorded in the public records of any jurisdiction.
32. TAX DEFERRED EXCHANGE. Seller and Purchaser agree to reasonably
cooperate with each other in effecting for the benefit of either party a delayed
like-kind exchange of real property pursuant to Section 1031 of the United
States Internal Revenue Code and similar provisions of applicable state law;
provided that (i) neither party shall be obligated to delay the closing
hereunder and (ii) neither party shall be obligated to execute any note,
contract, deed or other document not otherwise expressly provided for in this
Agreement providing for any personal liability, nor shall either party be
obligated to take title to any property other than the Property as otherwise
contemplated in this Agreement or incur additional expense for the benefit of
the other party. Each party shall indemnify and hold the other harmless against
any liability which arises or is claimed to
25
STORE NO. 2872R
have arisen on account of any exchange proceeding which is initiated on behalf
of the indemnifying party. Additionally, the party effectuating any such
like-kind exchange shall reimburse the other party for such other party's
actual, out-of-pocket costs and expenses with respect to such like-kind
exchange.
33. CONFIDENTIALITY. Purchaser acknowledges that all Confidential
Information is the confidential, proprietary, and commercial or financial trade
secret information of Seller, and Purchaser agrees to hold all Confidential
Information in strict confidence. Until Closing, all Confidential Information is
and shall remain the sole property of Seller and may be used only for the
purposes set forth in this Agreement. Purchaser agrees that, during the term of
this Agreement not to exceed the Closing Date, Purchaser will not directly or
indirectly disclose, duplicate, reproduce, distribute, disseminate, transmit,
discuss, or otherwise communicate, either verbally or in writing to any person
or entity other than its responsible shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, and other authorized
representatives (collectively "Authorized Persons") any Confidential Information
or documents or information derived from Confidential Information, nor use or
allow the use of any Confidential Information for any purpose other than
evaluating a possible purchase of the Property from Seller, except if required
by court order or by applicable law. Prior to any such disclosure Purchaser
shall inform the Authorized Persons by instruction, agreement, or otherwise that
the Confidential Information is the confidential, proprietary, and trade secret
information of Seller and may not be further disseminated to other persons or
entities without prior written consent, which must be requested from, and may be
given or withheld at the sole discretion of, Seller.
The term "Confidential Information" means any and all documents or
information received directly or indirectly at any time by Purchaser, verbally
or in writing, from Seller relating to Seller or the Property (the terms
"Purchaser" and "Seller" as used by this Paragraph 33 shall include their
respective subsidiaries, affiliates, shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, or other representatives
and their successors and assigns), but does not mean matters which are
previously known to the public.
Notwithstanding the foregoing, to the extent any Leases or agreements
with Tenants impose on Sellers any confidentiality obligations which are more
restrictive than the confidentiality provision contained herein, Seller shall be
bound by the terms and conditions of such confidentiality provisions and shall
not be obligated hereunder to violate or breach such obligations.
34. ACCEPTANCE. In the event this Agreement is not signed simultaneously
by both parties, it shall be considered to be an offer made to the other party
("Other Party") by the party first executing it. In such event (once the signed
Agreement is delivered to the Other Party) THIS OFFER SHALL EXPIRE AT 5:00 P.M.
TEN (10) BUSINESS DAYS AFTER BEING DELIVERED TO THE OTHER PARTY BY THE FIRST
PARTY TO SIGN THIS AGREEMENT, unless accepted and signed by the Other Party and
personally delivered to the party making the offer within said ten (10) business
days.
The parties have each caused this Real Estate Purchase Contract to be
executed on their behalf as of the date set forth beneath their respective
signatures below.
[SIGNATURES ON NEXT PAGE]
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STORE NO. 2872R
Signed, sealed and delivered in the "SELLER":
presence of the following witnesses:
COMMERCIAL NET LEASE REALTY
SERVICE, INC., a Maryland corporation
---------------------------------------
Signature of Witness
By:
--------------------------------------- ----------------------------------
Printed Name of Witness Printed Name:
------------------------
Title:
-------------------------------
Date:
--------------------------------------- -------------------------------
Signature of Witness
---------------------------------------
Printed Name of Witness
Signed, sealed and delivered in the "PURCHASER":
presence of the following witnesses:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Signature of Witness
By: /s/ G. Xxxxxx Xxxxxxx
----------------------------------
/s/ Xxxxxxx X. Xxxxx Printed Name: G. Xxxxxx Xxxxxxx
--------------------------------------- ------------------------
Printed Name of Witness Title: President
-------------------------------
Date: 9-12-03
--------------------------------
/s/ [ILLEGIBLE]
---------------------------------------
Signature of Witness
/s/ [ILLEGIBLE]
---------------------------------------
Printed Name of Witness
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STORE NO. 2872R
EXHIBIT "A"
PROPERTY ADDRESS (LEGAL DESCRIPTION TO BE ATTACHED)
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Legal Description is Attached.
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Legal Description:
A tract of land being a part of the Southeast Quarter (SE/4) of Section
Twenty-two (22), Township Nine (9) North, Range Three (3) West of the
Indian Meridian, Cleveland County, Oklahoma and being particularly
described as follows:
All of Xxx Xxx (0), Xxxxx (0), Xxx Xxxxxxx at Brookhaven, Section 5, an
addition to the City of Norman, Cleveland County, Oklahoma, according to
the plot recorded at Book 16, Page 12.
AND
All of Lot One (1), Block (1), The Village at Brookhaven Section 6, an
addition to the City of Norman, Cleveland County, Oklahoma, according to
the plot recorded at Book 16, Page 1.
NOTE: A LOT LINE ADJUSTMENT SHALL BE EXECUTED UPON SITE PLAN APPROVAL TO
CREATE ONE CONTIGUOUS PARCEL
STORE NO. 2872R
EXHIBIT "B"
This instrument was prepared
by and should be returned to:
_________________________, Esquire
Lowndes, Drosdick, Doster, Xxxxxx
& Xxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made and executed as of the______ day of
_______________, 20__, by__________________________, a__________________, whose
address is ___________________________________________ (hereinafter referred to
as the "Grantor") to _________________________, a ______________________, whose
address is_________________________________________ (hereinafter referred to as
the "Grantee");
WITNESSETH:
That the Grantor, for and in consideration of the sum of TEN DOLLARS
($10.00) and other valuable considerations, the receipt and sufficiency of which
are hereby acknowledged by these presents does grant, bargain, sell, alien,
remise, release, convey, and confirm unto the Grantee that certain piece, parcel
or tract of land situated in _________________County, __________________________
particularly described as follows, to wit:
INSERT LEGAL DESCRIPTION
(hereinafter referred to as the "Subject Property");
TOGETHER WITH all the tenements, hereditaments, easements and
appurtenances, including riparian rights, if any, thereto belonging or in
anywise appertaining;
TO HAVE AND TO HOLD the Subject Property in fee simple forever.
AND the Grantor does hereby covenant with and warrant to the Grantee that
the Grantor is lawfully seized of the Subject Property in fee simple; that the
Grantor has good right and lawful authority to sell and convey the Subject
Property; and that the Grantor fully warrants the title to the Subject Property
and will defend the same against the lawful claims of all persons claiming by,
through or under the Grantor, but against none other.
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STORE NO. 2872R
THE conveyance made herein, however, is expressly made SUBJECT TO ad
valorem real property taxes and assessments for the year 20__ and thereafter,
and easements and restrictions of record, if any, the reference to which shall
not operate to reimpose the same.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed in
manner and form sufficient to bind it as of the day and year first above
written.
Signed, sealed and delivered in the
presence of the following witnesses:
By:
--------------------------------------- ---------------------------------
Signature of Witness Printed Name:
------------------------
Title:
---------------------------
Address:
--------------------------------------- ----------------------------
Printed Name of Witness
----------------------------
---------------------------------------
Signature of Witness
---------------------------------------
Printed Name of Witness
2
STORE NO. 2872R
STATE OF ______________
COUNTY OF _____________
The foregoing instrument was acknowledged before me this ___day of
_________________, 20__by_______________________, as ________________________, a
______________________, on behalf of the ______________. He (She) is personally
known to me or has produced_________________________as identification.
------------------------------------
(NOTARY SEAL) Signature of Notary Public
Typed or Printed Notary Name
Notary Public-State of ____________
Commission No.:____________________
3
STORE NO. 2872R
EXHIBIT "C"
QUIT-CLAIM XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT, *____________________________________________, whose address is
______________________________________(hereinafter referred to as "Seller"), for
and in consideration of the sum of *___________________ AND ________/100 DOLLARS
($*_________________) paid by *_____________________________________________, a
*______________________, whose address is *____________________________________
(hereinafter referred to as "Purchaser"), the sufficiency and receipt of which
is hereby acknowledged, has granted, bargained, sold, transferred and delivered,
and by these presents does grant, bargain, sell, transfer and deliver unto the
Purchaser, its successors and assigns, all of its right, title and interest in
and to such items, goods, chattels and equipment which are presently existing
and located at the property described in Exhibit "A" attached hereto and by this
reference incorporated herein subject, however, to any and all claims, liens or
encumbrances which have been or may be made against said personal property,
items, goods, chattels and equipment, AND WITHOUT WARRANTY OF TITLE, FITNESS OR
MERCHANTABILITY.
TO HAVE AND TO HOLD the same unto the Purchaser, its successors and assigns
forever.
IN WITNESS WHEREOF, the Seller has caused these presents to be executed as
of this _____ day of _________________________, 2003.
Signed, sealed and delivered
in the presence of: __________________________________,a
_____________________________________
By:
----------------------------------
Name: Name:
-------------------------- --------------------------------
Its:
---------------------------------
Name: (CORPORATE SEAL)
--------------------------
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STORE NO. 2872R
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made and
entered into as of the *________ day of *___________________, 2003, by and
between *___________________________, a *_______________, having a mailing
address at *___________________________________________("Assignee"), and
*____________________________, a_____________________, having a mailing address
at _________________________________________________("Assignor").
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real property
situate in *_________________ County, State of *___________________________,
more particularly described on Exhibit A attached hereto and made a part hereof,
together with all improvements thereon (the "Real Property"); and
WHEREAS, the Real Property is subject to a certain Lease Agreement dated
*____________________, between Assignor, as Landlord and *_____________________,
as Tenant (the "Lease"); and
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to the Lease to
Assignee, and Assignee has agreed to assume and perform certain of Assignor's
liabilities and obligations arising under the Lease on and after the date
hereof, all in accordance with this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
a. ASSIGNMENT. Assignor does, to the extent permitted by law, hereby
transfer, assign and set over to Assignee to the extent assignable all of
Assignor's right, title and interest in and to the Lease. Assignor does hereby
agree to indemnify, hold harmless and defend Assignee and its successors and
assigns harmless from and against all claims, damages, losses, liabilities,
costs and expenses (including but not limited to reasonable attorneys' fees and
expenses) arising under or in connection with the Lease prior to the date
hereof. Assignee does hereby agree to indemnify, hold harmless and defend
Assignor and its successors and assigns harmless from and against all claims,
damages, losses, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees and expenses) arising under or in connection with the
Lease after the date hereof.
b. ASSUMPTION. Subject to Section 15(4) of the Purchase and Sale
Agreement, Assignee hereby assumes all liabilities and obligations of Assignor
under the Lease which arise on or after the date hereof and agrees to perform
all obligations of Assignor under the Lease which are to be performed or which
become due on or after the date hereof.
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c. COUNTERPARTS. This Assignment may be executed by the parties in
counterparts, in which event the signature pages thereof shall be combined in
order to constitute a single original document.
d. BINDING EFFECT. This Assignment shall be binding upon and inure to the
benefit of Assignor, Assignee and their respective successors and assigns.
e. LICENSE. Subject to the terms of that certain Real Estate Purchase
Contract dated ________________, 2003 between Assignor and Assignee covering the
purchase and sale of the Real Property, Assignee grants Assignor an irrevocable
license to go upon the Property to complete all of the work required by landlord
under the Lease and perform any and all tasks or take any and all acts necessary
to complete its work. This license shall expire and may only be terminated upon
completion of all of construction work required by landlord under the Lease.
Assignor shall defend, hold harmless and indemnify Assignee and each Acquiring
Entity from and against any and all claims, costs, expenses (including, but not
limited to, reasonable attorneys fees and litigation costs), damages, judgments,
demands, penalties, fines, interest and liabilities, and for any and all loss of
life, injury to persons or damage to property due to or resulting from, directly
or indirectly Assignor's or its designees exercising this License.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above.
[SIGNATURES ON NEXT PAGE]
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STORE NO. 2872R
Signed, sealed and delivered ,
------------------------------------
in the presence of: a
-----------------------------------
Name:
--------------------------------
Name: Title:
-------------------------- -------------------------------
Its:
---------------------------------
Name: (CORPORATE SEAL)
--------------------------
------------------------------------,
a
-----------------------------------
Name:
--------------------------------
Name: Title:
-------------------------- -------------------------------
Its:
---------------------------------
Name: (CORPORATE SEAL)
--------------------------
STATE OF __________________
COUNTY OF __________________
The foregoing instrument was acknowledged before me this ____ day of
_____________, 2003 by _______________, as _____________________________of
________________________________________, a ___________________________________,
on behalf of the __________________. He/She is personally known to me or has
produced ____________________________ as identification.
-------------------------------------
(NOTARY SEAL) Signature of Notary Public
-------------------------------------
Typed or Printed Name of Notary
Commission No.: _____________________
My Commission Expires: ______________
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STATE OF _________________
COUNTY OF ________________
The foregoing instrument was acknowledged before me this ___________day of
________, 2003 by _________________, as ____________________________________
of ___________________________________, a __________________________________ on
behalf of the ________________________________. He/She is personally known to me
or has produced _________________________ as identification.
-------------------------------------
(NOTARY SEAL) Signature of Notary Public
-------------------------------------
Typed or Printed Name of Notary
Commission No.: _____________________
My Commission Expires: ______________
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STORE NO. 2872R
EXHIBIT "E"
ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS,
WARRANTIES AND INTANGIBLE PROPERTY
THIS ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES (this
"Assignment") is made and entered into as of the _____ day of _________________,
2003, by *_____________________________, a _____________________________, having
a mailing address at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Assignor"), in favor of *________________________________, a ________________,
having a mailing address at ________________________________
_____________("Assignee");
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real property
situate in _______________ County, ___________________, more particularly
described on Schedule A attached hereto and made a part hereof, together with
all improvements thereon (the "Real Property"); and
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to certain
licenses, permits, plans, contracts and warranties relating to the design,
development, construction, ownership, operation, management and use of the Real
Property.
WHEREAS, in conjunction with the conveyance of the Real Property, Assignor
has agreed to assign all of its right, title and interest in and to the
following (collectively, the "Assigned Property"):
(i) all logos, designs, trade names, trademarks, service marks,
copyrights and other intellectual property used by Assignor in connection with
the ownership and operation of the Real Property or any part thereof, together
with the goodwill of the business appurtenant thereto;
(ii) the contracts, commitments, equipment leases, guaranties, payment and
performance bonds, warranties and other agreements (excluding, however, for the
purposes of this Assignment, any tenant leases relating to the Real Property)
set forth on Exhibit B attached hereto and made a part hereof, which are all of
the contracts, commitments, equipment leases, guaranties, warranties and other
agreements (excluding, however, for the purposes of this Assignment, any tenant
leases relating to the Real Property) relating to the Real Property;
(iii) the licenses, certifications, authorizations, approvals, certificates
of occupancy, zoning variances, building, use and other permits set forth on
Exhibit C attached hereto and made a part hereof, which licenses,
certifications, authorizations, approvals and permits constitute all of the
licenses, certifications, authorizations, approvals and permits issued or
approved by any governmental authority and relating to the operation, ownership
and maintenance of the Real Property or any part thereof; and
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STORE NO. 2872R
(iv) all architectural drawings, plans, specifications, soil tests,
feasibility studies, appraisals, engineering reports and similar materials
relating to the Real Property, including, without limitation, all as built plans
and specifications for the improvements on the Real Property, including any
plans and specifications for and a complete description of all existing
renovations to the Real Property and the rentable space therein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
5. Assignment. Assignor does, to the extent permitted by law, hereby
transfer, assign and set over to Assignee to the extent assignable all of
Assignor's right, title and interest in and to all of the Assigned Property.
Assignor does hereby agree to indemnify, hold harmless and defend Assignee and
its successors and assigns harmless from and against all claims, damages,
losses, liabilities, costs and expenses (including but not limited to reasonable
attorneys' fees and expenses) arising under or in connection with the Assigned
Property prior to the date hereof. Assignee does hereby agree to indemnify, hold
harmless and defend Assignor and its successors and assigns harmless from and
against all claims, damages, losses, liabilities, costs and expenses (including
but not limited to reasonable attorneys' fees and expenses) arising under or in
connection with the Assigned Property after the date hereof.
6. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of Assignor, Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date
set forth above.
ATTEST:
----------------------------------,
a
-----------------------------
By: By:
--------------------------------- --------------------------------
Name: Name:
------------------------------- ------------------------------
Its: Its:
-------------------------------- -------------------------------
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STORE NO. 2872R
EXHIBIT F
SURVEYOR'S CERTIFICATE
CERTIFIED TO: Inland Real Estate Acquisitions, Inc., its successors and
assigns The Acquiring Entity, and its successors and
assigns Chicago Title Insurance Company
The undersigned does hereby certify that
(i) this survey was made upon the ground of the property described by the
provided legal description and shown hereon and hereafter referred to as "the
property", on _________________, 2003, under my supervision, for the benefit of
and reliance by Inland Real Estate Acquisitions, Inc., its successors and
assigns, [Name of the individual property owner], its successors and assigns,
Chicago Title Insurance Company, and accurately shows and represents the
property and the locations of all buildings, structures and other improvements
and visible items (including all parking spaces (and a count thereof) located
upon the property and the sizes of such parking spaces) and known utilities
located thereon, and the relation of all such buildings, structures and other
improvements to the property lines of the property;
(ii) the legal description of the property contained hereon is accurate and
the physical evidence of boundary lines and lines of possession or occupancy
have been shown hereon and proper notation made where conflicts exist between
said legal description and said possession or occupancy lines, and the legal
description shown hereon forms a mathematically closed figure;
(iii) the property reflected hereon has physical and legal access to and
from a dedicated public roadway; and the public roads, highways, streets and
alleys running adjacent to or upon the property are shown hereon;
(iv) except as shown hereon, there are no discrepancies, conflicts,
shortages in area, encroachments (from the property onto any adjacent property,
including streets, roadways and alleys, and/or from any adjacent property,
including streets, roadways and alleys, onto the property), visible
improvements, overlapping of improvements, set-back and/or building lines set
forth by zoning or subdivision plat, easements (and no evidence on the ground of
use of the property that might suggest a possible claim of easement) or
rights-of-way set forth by subdivision plat or itemized in the referenced title
commitment shown hereon, drainage ditches, power lines or roadways that affect
the property, or visible utilities that affect the property;
(v) there are no gaps, gores, or overlaps between the property and the
adjacent parcels or rights of way for roads, highways, streets, or alleys and
all parcels that comprise the property, as reflected hereon, are contiguous;
(vi) the property is a separate tax lot;
(vii) except as noted hereon, the following utilities (for the operation of
the property) are available at the lot lines or enter the property at adjoining
public streets and do not run through or
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STORE NO. 2872R
under any buildings located on the property reflected hereon: water, sanitary
sewer, storm sewer, gas, electricity and telephone;
(viii) except as shown hereon, there are no violations of zoning ordinances
or zoning restrictions with reference to the location of all buildings,
structures and improvements situated on the property and the number, and
configuration of parking spaces as shown hereon;
(ix) the gross and net areas (both acreage and square footage) shown hereon
are accurate and except as shown hereon, there are no boundary line
discrepancies and no deficiencies in the quantity of the land described in the
legal description of the property;
(x) this property lies in Flood Zone _________ according to Flood Insurance
Rate Maps for the City of __________, Community Panel No.________________, dated
__________________________ and issued by the Federal Emergency Management,
(xi) this Survey accurately shows (i) the zoning classification of the
property, (ii) the parking requirements of the zoning code applicable to the
property, and (iii) the source of such information, and
(xii) this survey conforms with the "Minimum Standard Detail Requirements
of ALTA/ACSM Land Title Surveys", jointly established and adopted by American
Land Title Association (ALTA) and American Congress on Surveying and Mapping
(ACSM) in 1999, and includes Table "A" items 1, 2, 3, 4, 6, 7(a)-(c), 8, 9, 10,
11(a) and (b), 13, 14, 15 and 16 therein. Pursuant to the Accuracy Standards as
adopted by ALTA and ACSM and in effect on the date of this certification, the
undersigned further certifies that proper field procedures, instrumentation and
adequate survey personnel were employed in order to achieve results comparable
to those outlined in the "Minimum Angle, Distance and Closure Requirements for
Survey Measurements Which Control Land Boundaries for ALTA/ACSM Land Title
Surveys."
[Surveyor's Name]
By:
-------------------------------
Date:
-----------------------------
Registered Land Surveyor No._____________
Date of Survey:__________________________
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EXHIBIT G
ASSIGNMENT OF CONSTRUCTION CONTRACTS
THIS ASSIGNMENT OF CONSTRUCTION CONTRACTS (this "Assignment") is made and
entered into as of _________ __, 200__ by and between __________________________
("Assignor") and _______________________________("Assignee").
WITNESSETH:
Assignor, for good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, hereby grants, transfers and assigns to
Assignee all of Assignor's right, title and interest to all that certain
construction contract listed on Schedule A, together with all warranties and
guaranties and other rights thereunder (the "Assigned Contract") relating to the
development of the real property located at ___________________________, and
commonly known as __________________________________________ (the "Property"),
together with all modifications, amendments, notices, materials correspondence,
or other relevant materials.
Assignor agrees to, and hereby does, indemnify and hold harmless Assignee
and its successors and assigns from and against any and all claims, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and costs, including paralegal fees) which may be asserted against or imposed on
or incurred by Assignee or its successors and assigns by reason of Assignor's
failure to pay, perform, observe or comply with any of the terms, covenants,
conditions, agreements, provisions or obligations contained in the Assigned
Contract to be kept, paid, performed, observed and complied with by the Assignor
prior to the date hereof and/or for which Assignor retains responsibility under
the terms of that Purchase and Sale Agreement dated ______________, 2003 between
Assignor and Inland Real Estate Acquisitions, Inc. (the "Purchase Agreement").
Assignor agrees that it shall be and remain responsible for the payment of any
and all costs, expenses, fees and other compensation due and payable, or that
shall become due and payable, to [INSERT NAME OF CONTRACTOR] (the "Contractor")
under and pursuant to the Assigned Contract, except for any such costs,
expenses, fees or other compensation due on account of any work performed by the
Contractor at the direction of Assignee and for which Assignor has not retained
liability under the Purchase Agreement.
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IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
under seal as of the date and year first above written.
ASSIGNOR:
-----------------------------
By:
--------------------------
Name:
------------------
Its:
-------------------
ASSIGNEE:
-----------------------------
By:
--------------------------
Name:
-------------------------
Its:
---------------------------
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STORE NO. 2872R
SCHEDULE A
ASSIGNED XXXXXXXX
0
XXXXX XX. 0000X
EXHIBIT H
ASSIGNMENT OF ARCHITECT'S AGREEMENT
THIS ASSIGNMENT OF ARCHITECT'S AGREEMENT (this "Assignment") made as of
_________ __, 2003 by and between ________________________________("Assignor")
and _____________________________________("Assignee").
WITNESSETH:
Assignor, for good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, hereby grants, transfers and assigns to
Assignee all of Assignor's right, title and interest to all of that certain
architects contract listed on Schedule A, together with all warranties and
guaranties, and other rights thereunder (the "Assigned Contract") relating to
the development of the real property located at _______________________________,
and commonly known as ___________________________________(the "Property"),
together with all modifications, amendments, notices, materials correspondence,
or other relevant materials.
Assignor agrees to, and hereby does, indemnify and hold harmless Assignee
and its successors and assigns from and against any and all claims, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and costs, including paralegal fees) which may be asserted against or imposed on
or incurred by Assignee or its successors and assigns by reason of Assignor's
failure to pay, perform, observe or comply with any of the terms, covenants,
conditions, agreements, provisions or obligations contained in the Assigned
Contract to be kept, paid, performed, observed and complied with by the Assignor
prior to the date hereof or for which Assignor retains responsibility under the
terms of that certain Purchase and Sale Agreement dated ___________, 2003
between Assignor and Inland Real Estate Acquisitions, Inc. (the "Purchase
Agreement"). Assignor agrees that it shall be and remain responsible for the
payment of any and all costs, expenses, fees and other compensation due and
payable, or that shall become due and payable, to [INSERT NAME OF ARCHITECT]
(the "Architect") under and pursuant to the Assigned Contract, except for any
such costs, expenses, fees or other compensation due on account of any work
performed by the Architect at the direction of Assignee and for which Assignor
has not retained liability under the Purchase Agreement.
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IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed
under seal as of the date and year first above written.
ASSIGNOR:
-----------------------------
By:
--------------------------
Name:
------------------
Its:
-------------------
ASSIGNEE:
By:
--------------------------
Name:
-------------------------
Its:
---------------------------
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STORE NO. 2872R
SCHEDULE A
ASSIGNED XXXXXXXX
0
XXXXX XX. 0000X
EXHIBIT I
FORM OF TENANT ESTOPPEL
Store #
Eckerd Corporation
Estoppel Certificate
Date:
Re: Lease dated , 20___ between
Landlord: Commercial Net Lease Realty Services, Inc.
Tenant: Eckerd Corporation
Location:
Modified:
Ladies and or Gentlemen:
The undersigned, as the present owner and holder of the Tenant's interest
under the aforesaid Lease, hereby confirms the following to the best of its
knowledge:
1. That it has accepted possession of the premises demised pursuant to
the terms of the aforesaid Lease.
2. That the improvements and space required to be furnished according to
the said Lease have been completed and have been found to be satisfactory.
3. That the Landlord has fulfilled all of its duties of an inducement
nature including the parking requirements as set forth in the lease.
4. That the aforesaid Lease has not been modified, altered or amended
except as noted herein.
5. That there are no off-sets or credits against rentals, nor have
rentals been prepaid except as provided by the Lease terms, but in no event have
rentals been paid more than thirty (30) days in advance.
6. That the Landlord, as of this date, is not in default under any of the
terms of said Lease.
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STORE NO. 2872R
7. That said Lease commenced on ______________, 20____. The current Lease
term expires on __________________, 20____.
8. That it has no notice of prior assignment, hypothecation or pledge of
rents of the Lease.
9. That no claim of amendment, modification or waiver of any of the terms
and conditions of the Lease shall be made against the undersigned, its
successors or assigns, as a result of any statement or representation contained
in this Estoppel Certificate.
Eckerd Corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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STORE NO. 2872R
EXHIBIT J
ENVIRONMENTAL DISCLOSURE
1. Subsurface Exploration Report,
Project No. 03025239,
dated August 13, 2002,
Prepared for Commercial Net Lease Realty Services, Inc. by
Terracon of Oklahoma City, Oklahoma.
2. Enercon Services, Inc., Oklahoma City, Oklahoma,
Phase I Environmental Site Assessment for
Proposed Eckerd at Northwest Corner of 36th and West Xxxxxxxx,
Norman, Oklahoma,
Project No. PH-508 performed for Commercial Net Lease Realty Services, Inc.,
dated August 21, 2002.
3. Phase II Limited Subsurface Investigation of Village Texaco
at 0000 Xxxx Xxxxxxxx, Xxxxxx, Xxxxxxxx,
dated October 31, 2002,
Prepared for Commercial Net Lease Realty Services, Inc. by
Enercon Services, Inc., Oklahoma City, Oklahoma.
4. Subsurface Boring and Ground-water Samples submitted to
Oklahoma Corporation Commission by Enercon Services, Inc.
5. No Further Action Letter dated November 21, 2002
from Oklahoma Corporation Commission to Enercon Services, Inc.
1
FIRST AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "First
Amendment") is made and entered into as of the 23RD day of October, 2003, by and
between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real Estate
Purchase Contract dated as of September 16, 2003 (the "Agreement"), with respect
to certain real property and all improvements thereon located at 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this First Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
First Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. TITLE/SURVEY. Paragraph 6 of the Agreement is hereby deleted in its
entirety. Any and all references in the Agreement to Paragraph 6 shall mean and
refer to Paragraph 5 of the Agreement. Paragraph 5 of the Agreement is hereby
amended and restated in its entirety as follows:
"5. TITLE/SURVEY. No later than November 21, 2003, Seller shall
deliver or cause to be delivered to Purchaser an as-built survey of the
Property prepared by a surveyor licensed in the State of Oklahoma (the
"Survey") certified to Purchaser, Purchaser's lender, if any, the Title
Insurer and such other parties as Purchaser shall designate in writing to
Seller prior to delivery of the Survey, and prepared in accordance with the
Accuracy Standards and Minimum Standard Detail Requirements for ALTA-ACSM
Land Title Surveys as adopted by the American Land Title Association, the
American Congress on Surveying and Mapping and the National Society of
Professional Surveyors in 1999, and prepared in accordance with the items
set forth in the Surveyor's Certificate and other requirements attached
hereto as EXHIBIT "F" and made a part hereof. Seller shall be responsible
to pay for the costs of the Survey up to a total cost of $1,000. Purchaser
shall pay the costs of the Survey in excess of $1,000. Notwithstanding the
foregoing, if the cost of the Survey is expected to exceed the amount that
Seller is obligated to pay, then, prior to ordering the same, Seller shall
obtain Purchaser's prior approval of the cost thereof. Any and all
references contained in this Agreement to the "Survey" and the "As-Built
Survey" shall mean and refer to the Survey. No later than three (3) days
after the Effective Date, Purchaser shall, at Seller's sole cost and
expense, order from the Title Insurer (as defined hereinbelow) a commitment
for an ALTA Owner's Title Insurance Policy (the "Title Commitment") for the
Property, together with legible copies of any and all title exception
documents referenced therein,
issued by Chicago Title Insurance Company (the "Title Insurer") in the
amount of the Purchase Price of the Property, showing Seller as owner of
the Property in fee simple, subject only to the title exceptions approved
or deemed approved by Purchaser pursuant to this Paragraph 5 (each a
"PERMITTED EXCEPTION"), and other exceptions pertaining to liens or
encumbrances of a definite or ascertainable amount (which, in the
aggregate, do not exceed that portion of the Purchase Price payable to
Seller on the Closing Date) which may be removed by the payment of money at
closing and which Seller shall so remove, and providing for full extended
coverage over all general title exceptions contained in such Title
Commitment and the following special endorsements (collectively, the
"SPECIAL TITLE ENDORSEMENTS"): Zoning Endorsement 3.1 (amended to include
parking), owner's comprehensive, access, survey (legal description
equivalency), separate tax parcel, contiguity (if applicable), waiver of
creditor's rights, environmental protection lien, encroachment (if
applicable), utility facility, subdivision, location, deletion of the
arbitration provision, and any other endorsements required by Purchaser. No
later than ten (10) days after Purchaser's receipt of all of the Title
Commitment, legible copies of all documents referenced in the Title
Commitment and the Survey, Purchaser may deliver to Seller a notice (the
"TITLE AND SURVEY NOTICE") identifying any matters contained in or
disclosed by any of the Title Commitment and/or the Survey that are not
acceptable to Purchaser in its sole and absolute discretion (each, a
"TITLE/SURVEY OBJECTION", and collectively, the "TITLE/SURVEY OBJECTIONS").
Any and all references in this Agreement (a) to the "New Title and Survey
Notice" and the "Title and Survey Notice" shall mean and refer to the Title
and Survey Notice, and (b) to a "Title/Survey Objections(s)" and/or "New
Title/Survey Objection(s)" shall mean and refer to the Title/Survey
Objections(s). Purchaser's failure to deliver the Title and Survey Notice
as aforesaid shall be deemed Purchaser's approval and acceptance of the
Title Commitment and the Survey, and all matters shown and referenced
thereon and therein shall be deemed Permitted Exceptions. Additionally,
Purchaser's failure to object to any matters disclosed by the Title
Commitment and/or the Survey in a Title and Survey Notice shall be deemed
Purchaser's acceptance of such matters, and such matters shall be deemed
Permitted Exceptions. If Purchaser shall deliver the Title and Survey
Notice to Seller as aforesaid, Seller shall, within five (5) days after
receipt of the same, notify Purchaser, with respect to each Title/Survey
Objection, whether Seller intends to either (a) cause the Title/Survey
Objection to be removed, (b) have the Title Insurer issue a title
endorsement insuring against damage and loss caused by any Title/Survey
Objection (which endorsement shall be subject to the review and approval of
Purchaser), or (c) take no further action regarding such Title/Survey
Objection in which event, subject to the immediately following sentence,
such Title/Survey Objection shall become a Permitted Exception.
Notwithstanding the foregoing, Seller shall, at its expense, remove (or
cause to be removed) or cause the Title Insurer to insure over any
Title/Survey Objection appearing on the Title Commitment that is any of the
following: (1) judgments against Seller, and/or (2) mortgages or monetary
liens, defects, obligations or exceptions of a definite and ascertainable
amount that can be satisfied solely by the payment of money (items (1) and
(2) above to be hereinafter referred to collectively as "MONETARY
EXCEPTIONS"). If Seller elects, or is deemed to have elected, item (c)
above, then Purchaser shall have the right, by delivering notice to Seller
within three (3) business days after the expiration of the aforementioned
five (5) day period to either (i) terminate this Agreement in which event
the Xxxxxxx Money (and any interest earned thereon) shall be immediately
returned to Purchaser and thereupon neither Seller nor Purchaser shall have
any further rights, duties or obligations under this Agreement, or (ii)
waive its objection and accept title to the Property subject to such
Title/Survey Objections, in which event this Agreement shall remain in full
force and effect. Seller's failure to notify Purchaser within the
aforementioned five (5) day period of which foregoing course of
action Seller elects to take with respect to a Title/Survey Objection shall
be deemed Seller's election of item (c) above. With respect to any
Title/Survey Objection that Seller has elected or is deemed to have elected
not to take any further action, Purchaser's failure to terminate this
Agreement on or before the expiration of the aforementioned three (3)
business day period as aforesaid shall be deemed Purchaser's waiver of its
objection as provided in (ii) above. If the Title Commitment discloses
judgments, bankruptcies or other matters against other persons having names
the same as or similar to that of Seller, Seller, on the Title Insurer's
request, shall deliver to the Title Insurer affidavits or other evidence
reasonably acceptable to the Title Insurer showing and/or confirming that
such judgments, bankruptcies or other matters are not against Seller, or
any affiliates.
If Seller has elected or, with respect to Monetary Exception is
required, to cure any Title/Survey Objection as provided above (whether by
removal of, or obtaining title insurance over, the same), but failed to
cure any such matters prior to the Closing Date, then Purchaser, and
without waiving any rights of Purchaser for a Seller default under this
Agreement, may elect to either (i) terminate this Agreement in which event
the Xxxxxxx Money shall be immediately returned to Purchaser and thereupon
neither Seller nor Purchaser shall have any further rights, duties or
obligations under this Agreement, (ii) waive its objection and accept the
Property subject to such Title/Survey Objection, in which event this
Agreement shall remain in full force and effect; provided, however, that if
the Title/Survey Objection is a Monetary Exception, then Purchaser shall
have the right to deduct from the Purchase Price the amount of such
Monetary Exception, and any amount so deducted from the Purchase Price
shall be paid to the appropriate party in exchange for the removal of such
Monetary Exceptions; or (iii) xxx Seller for specific performance.
Notwithstanding anything in this Section or Agreement to the contrary,
Seller may elect to not pay off any mechanic's or materialman's lien filed
against the Property in connection with the construction provided Seller
bonds any such lien to the reasonable satisfaction of Purchaser and the
Title Insurer and further provided that the Title Insurer issues, at
Seller's cost, an endorsement to Purchaser's final Owner's Title Policy to
be issued pursuant to Section 10(c) below insuring against any loss or
damage arising on account of such lien. Seller shall have one (1) year from
the Closing Date to finalize and cause the release of any mechanic's or
materialman's lien filed against the Property in connection with Seller's
work to construct, complete and/or to perform warranty work on the
Improvements pursuant to Section 15(3) below. This provision shall survive
the Closing."
3. CLOSING COSTS. Clause (vii) of the Seller's closing costs as set forth
in Paragraph 11 of the Agreement is hereby amended and restated in its entirety
as follows: "(vii) the costs of the Title Commitment (including all updates
thereof);".
4. COUNTERPARTS; FACSIMILE SIGNATURES. This First Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original executed
and delivered agreement.
5. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this First Amendment,
this First Amendment shall be deemed to be a part of the Agreement. The terms
and provisions of Sections 21, 22, 23, 24, 25 (except that the Agreement and
this First Amendment contain the sole and entire understanding between
Seller and Purchaser with respect to the transactions contemplated by the
Agreement and this First Amendment), 26, 27, 28 and 31 of the Agreement are, by
this reference, incorporated into this First Amendment and shall apply to this
First Amendment as if fully set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
----------------------------------
Name: G. Xxxxxx Xxxxxxx
-------------------------
Its: President
--------------------------
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------
Its: EVP
--------------------------
SECOND AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS SECOND AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "Second
Amendment") is made and entered into as of the 27th day of October, 2003, by and
between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real Estate
Purchase Contract dated as of September 16, 2003 (the "Original Agreement"), as
amended by that certain First Amendment to Real Estate Purchase Contract dated
as of October 23, 2003 (the "First Amendment"; the Original Agreement and the
First Amendment shall hereinafter sometimes be referred to collectively as the
"Agreement"), with respect to certain real property and all improvements thereon
located at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Second Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Second Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Paragraph 4 of the Original Agreement,
the Inspection Period is scheduled to expire on or about October 28, 2003.
Seller and Purchaser hereby agree that the date upon which the Inspection Period
shall expire is hereby extended from October 28, 2003 to November 11, 2003.
Purchaser hereby agrees that, prior to the expiration of the Inspection Period,
Seller shall have the right to market the Property for sale. From and after the
expiration of the Inspection Period (provided that Purchaser shall not have
terminated the Agreement pursuant to Paragraph 7 thereof), Seller shall cease
any and all such marketing efforts.
3. COUNTERPARTS; FACSIMILE SIGNATURES. This Second Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
4. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Second Amendment,
this Second Amendment shall be deemed to be a part of the Agreement. The terms
and provisions of Paragraphs 21, 22, 23, 24, 25 (except that the Agreement and
this Second Amendment contain the sole and entire understanding between Seller
and Purchaser with respect to the transactions contemplated by the Agreement and
this Second Amendment), 26, 27, 28 and 31 of the Original Agreement are, by
this reference, incorporated into this Second Amendment and shall apply to this
Second Amendment as if fully set forth herein.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
----------------------------------
G. Xxxxxx Xxxxxxx
President
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------
Its: Executive VP
--------------------------
THIRD AMENDMENT TO
REAL ESTATE PURCHASE CONTRACT
THIS THIRD AMENDMENT TO REAL ESTATE PURCHASE CONTRACT (this "Third
Amendment") is made and entered into as of the 11th day of November, 2003, by
and between COMMERCIAL NET LEASE REALTY SERVICES, INC., a Maryland corporation
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Real Estate
Purchase Contract dated as of September 16, 2003 (the "Original Agreement"), as
amended by that certain First Amendment to Real Estate Purchase Contract dated
as of October 23, 2003 (the "First Amendment") and as further amended by that
certain Second Amendment to Real Estate Purchase Contract dated as of October
27, 2003 (the "Second Amendment"; the Original Agreement, the First Amendment
and the Second Amendment shall hereinafter sometimes be referred to collectively
as the "Agreement"), with respect to certain real property and all improvements
thereon located at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals are,
by this reference, incorporated into the text of this Third Amendment as if
fully set forth herein. Initially capitalized terms used but not defined in this
Third Amendment, but defined in the Agreement, shall have the meanings given to
them in the Agreement.
2. DELIVERIES AT CLOSING. The last two (2) grammatical sentences of
Paragraph 9(a)(vi) are hereby deleted and replaced with the following: "Prior to
Closing, Purchaser and Seller shall agree upon the Licenses, Permits, Plans,
Contracts and Warranties to be set forth on Exhibits B and C to the License
Assignment." The last grammatical sentence of Paragraph 9(a)(x) of the Original
Agreement is hereby deleted and replaced with the following: "Purchaser shall,
as part of the Title and Survey Notice, give Seller in writing a list of the
operating agreements and/or reciprocal easement agreements for which Purchaser
wants estoppel certificates or Seller shall have no obligation to furnish
Purchaser any such estoppel certificates." Additionally, the following shall be
incorporated as Section 9(a)(xxiv) of the Original Agreement:
"(xxiv) Not less that ten (10) days prior to Closing, copies of all
documents and materials to be provided by the general contractor (a) under
the Construction Contract pursuant to Section F of the Construction
Administration Procedures attached as Exhibit J to such Construction
Contract, and (b) required in that certain letter from Xxxxxxx Xxxxxxx (of
Seller's office) to Xxx Xxxxxx (of Xxxxxx Construction Corp.) dated August
7, 2003."
3. ROOF WARRANTY. Seller covenants and agrees that the roof warranty to
be issued with respect to the Property shall comply in all respects with the
requirements of the Lease.
4. LEASE COMMENCEMENT DATE AND LEASE TERMINATION DATE. In addition to the
other terms, provisions and conditions to Closing, Seller shall, at Closing,
deliver to Purchaser a fully executed document or instrument pursuant to which
Tenant acknowledges and confirms the Lease Commencement Date and the Lease
Termination Date (as such terms are defined in the Lease).
5. CONTRACTOR AND ARCHITECT CONSENT. Seller and Purchaser acknowledge,
and it shall be a condition precedent to Purchaser's obligation to close the
transaction contemplated by the Agreement and this Third Amendment, that (a)
each of the general contractor under the Construction Contract and the architect
under the Architect's Agreement, as applicable, consent to and approve of the
assignment of seller's right, title and interest in, to and under the
Construction Contract and the Architect's Agreement to Purchaser (or Purchaser's
nominee or assignee), and (b) such consents/approvals contain a provision
pursuant to which such general contractor and architect agree to look only to
Seller for payment of any and all costs, expenses, fees, reimbursables and other
amounts due and payable (or that become due and payable) under the Construction
Contract and the Architect's Agreement.
6. OTHER CONTRACTS. Seller represents and warrants to Purchaser that any
and all labor, materials, services and other work to be provided and/or
performed under and pursuant to the contracts and agreements with the following
entities have been fully provided and performed in accordance with the terms and
provisions of such contracts and agreements, and final, full payment for all
such labor, materials, services and other work has been made or will have been
made by Closing: Xxxxxxx & Associates Civil Engineering and Surveying Services;
(b) Terracon Geotechbical; and (c) Enercon Services, Inc.
7. COUNTERPARTS; FACSIMILE SIGNATURES. This Third Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
8. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. This Third Amendment shall be deemed to be a part
of the Agreement. The terms and provisions of Paragraphs 21, 22, 23, 24, 25
(except that the Agreement and this Third Amendment contain the sole and entire
understanding between Seller and Purchaser with respect to the transactions
contemplated by the Agreement and this Third Amendment), 26, 27, 28 and 31 of
the Original Agreement are, by this reference, incorporated into this Third
Amendment and shall apply to this Third Amendment as if fully set forth herein.
[SIGANTURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ G. Xxxxxx Xxxxxxx
----------------------------------
G. Xxxxxx Xxxxxxx
President
SELLER:
COMMERCIAL NET LEASE REALTY
SERVICES, INC., a Maryland corporation
By:
----------------------------------
Name:
-------------------------
Its:
--------------------------
