Exhibit 10.326
AGREEMENT OF PURCHASE AND SALE
BY AND BETWEEN
AIG ▇▇▇▇▇ MRP, L.L.C.,
AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC.
AS BUYER
July 20, 2004
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS......................................................................4
SECTION 1.2 TERMS GENERALLY..................................................................9
ARTICLE II
PURCHASE AND SALE OF PROPERTY
SECTION 2.1 SALE.............................................................................9
SECTION 2.2 PURCHASE PRICE..................................................................10
SECTION 2.3 DUE DILIGENCE PERIOD............................................................11
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE....................................12
SECTION 3.2 CONDITIONS TO SELLER'S OBLIGATIONS TO SELL......................................13
SECTION 3.3 TERMINATION.....................................................................13
SECTION 3.4 WAIVER BY BUYER.................................................................13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTY
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF SELLER........................................14
SECTION 4.2 ESTOPPELS.......................................................................16
SECTION 4.3 LIMITATION ON CLAIMS; SURVIVAL OF REPRESENTATIONS AND WARRANTIES................16
SECTION 4.4 REPRESENTATIONS AND WARRANTIES OF BUYER.........................................17
SECTION 4.5 BUYER'S INDEPENDENT INVESTIGATION...............................................18
SECTION 4.6 ENTRY AND INDEMNITY; LIMITS ON GOVERNMENT CONTACTS..............................21
SECTION 4.7 RELEASE.........................................................................22
ARTICLE V
TITLE AND SURVEY MATTERS
SECTION 5.1 DELIVERY; OBJECTION.............................................................22
SECTION 5.2 EVIDENCE OF TITLE...............................................................23
ARTICLE VI
BROKERS AND EXPENSES
SECTION 6.1 BROKERS.........................................................................23
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SECTION 6.2 EXPENSES........................................................................23
ARTICLE VII
INTERIM OPERATION OF THE PROPERTY
SECTION 7.1 INTERIM OPERATION OF THE PROPERTY...............................................23
SECTION 7.2 LEASING COSTS...................................................................25
SECTION 7.3 SELLER'S MAINTENANCE OF THE PROPERTY............................................26
SECTION 7.4 LEASE ENFORCEMENT...............................................................26
SECTION 7.5 LEASE TERMINATION PRIOR TO CLOSING..............................................26
SECTION 7.6 TENANT NOTICES..................................................................26
SECTION 7.7 RISK OF LOSS AND INSURANCE PROCEEDS.............................................27
SECTION 7.8 NOTIFICATIONS...................................................................27
ARTICLE VIII
CLOSING AND ESCROW
SECTION 8.1 ESCROW INSTRUCTIONS.............................................................28
SECTION 8.2 CLOSING.........................................................................28
SECTION 8.3 DEPOSIT OF DOCUMENTS............................................................28
SECTION 8.4 ESTOPPEL CERTIFICATES...........................................................29
SECTION 8.5 PRORATIONS......................................................................30
SECTION 8.6 TAX CERTIORARI PROCEEDINGS......................................................32
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES.........................................................................33
SECTION 9.2 ENTIRE AGREEMENT................................................................35
SECTION 9.3 TIME............................................................................35
SECTION 9.4 ATTORNEYS' FEES.................................................................35
SECTION 9.5 NO MERGER.......................................................................35
SECTION 9.6 ASSIGNMENT......................................................................35
SECTION 9.7 COUNTERPARTS....................................................................35
SECTION 9.8 GOVERNING LAW; JURISDICTION AND VENUE...........................................35
SECTION 9.9 WAIVER OF TRIAL BY JURY.........................................................36
SECTION 9.10 CONFIDENTIALITY AND RETURN OF DOCUMENTS........................................36
SECTION 9.11 INTERPRETATION OF AGREEMENT....................................................38
SECTION 9.12 AMENDMENTS.....................................................................38
SECTION 9.13 NO RECORDING...................................................................38
SECTION 9.14 NO THIRD PARTY BENEFICIARY.....................................................38
SECTION 9.15 SEVERABILITY...................................................................38
SECTION 9.16 DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING CONTRACT...................38
SECTION 9.17 FURTHER ASSURANCES.............................................................38
SECTION 9.18 SIGNATURES.....................................................................38
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EXHIBITS
EXHIBIT A LIMITED WARRANTY DEED
EXHIBIT B ▇▇▇▇ OF SALE
EXHIBIT C ASSIGNMENT OF LEASES
EXHIBIT D ASSIGNMENT OF CONTRACTS, WARRANTIES AND GUARANTIES AND
OTHER INTANGIBLE PROPERTY
EXHIBIT E SELLER'S AFFIDAVIT
EXHIBIT F TENANT ESTOPPEL CERTIFICATE
EXHIBIT G SELLER'S CERTIFICATE
SCHEDULES
SCHEDULE 2.1.1 PROPERTY DESCRIPTION
SCHEDULE 2.1.2 SITE PLAN OF THE SHOPPING CENTER
SCHEDULE 4.1.1 EXISTING LEASES
SCHEDULE 4.1.2 CONTRACTS
SCHEDULE 4.1.3 RENT ROLL
SCHEDULE 4.1.4 TENANT DEFAULTS
SCHEDULE 4.1.5 NON-TERMINABLE CONTRACTS
SCHEDULE 4.1.6 PENDING LITIGATION
SCHEDULE 7.2.1 LEASING COSTS
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "AGREEMENT"), is dated as of July
20, 2004 (this "AGREEMENT"), by and between AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("SELLER"), and INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation ("BUYER").
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below, which meanings shall be applicable
equally to the singular and plural of the terms defined:
"AFFILIATE" shall mean with respect to any Person (i) any other
Person that directly or indirectly through one or more intermediaries controls
or is controlled by or is under common control with such Person, (ii) any other
Person owning or controlling ten percent (10%) or more of the outstanding voting
securities of or other ownership interests in such Person, (iii) any officer,
director or partner of such Person or (iv) if such Person is an officer,
director or partner, any other company for which such Person acts in any such
capacity.
"AGREEMENT" shall have the meaning set forth in the first paragraph
of this Agreement of Purchase and Sale.
"ANCHOR TENANT" shall mean the following tenants: ▇▇▇▇ ▇. ▇▇▇▇▇
d/b/a ▇▇▇▇▇▇▇▇'▇ Leaning Tower Italian Restaurant; Electronic Boutiques of
America, Inc.; Suncoast Clips, Inc., d/b/a Great Clips; Deb's Shops II, Inc.,
d/b/a Hallmark Gold Crown; Mattress Firm, Inc.; Marshalls of MA, Inc.; Panera,
LLC; Payless ShoeSource, Inc.; PETsMART, Inc.; Pier 1 Imports (U.S.), Inc.;
Publix Super Markets, Inc.; ▇▇▇▇ Dress for Less, L.C.; ▇▇▇▇▇ Beauty Company,
Inc.; and Starbucks Corporation
"ASSIGNMENT OF CONTRACTS" shall have the meaning set forth in
SECTION 8.3(a)(iv).
"ASSIGNMENT OF LEASES" shall have the meaning set forth in SECTION
8.3(a)(iii).
"▇▇▇▇ OF SALE" shall have the meaning set forth in SECTION
8.3(a)(ii).
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday,
or a federal holiday recognized by the Federal Reserve Bank of New York.
"BUYER" shall have the meaning set forth in the first paragraph of
this Agreement and shall include any assignee of Buyer (including, without
limitation, any Permitted Assignee).
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"BUYER PARTY" or "BUYER PARTIES" shall have the meaning set forth in
SECTION 4.6(a).
"CLAIM NOTICE" shall mean a written notice delivered by Buyer or a
Permitted Assignee to Seller setting forth (i) a reasonably detailed description
of the claimed breach or inaccuracy of a representation or warranty, including
reasonably detailed information as to the adverse effect on the value of the
Property, (ii) the specific provision of this Agreement under which such breach
is claimed and (iii) complete and detailed evidence of the satisfaction of the
conditions to Buyer's or a Permitted Assignee's recovery set forth in SECTION
4.3.
"CLAIMS" shall have the meaning set forth in SECTION 4.3(a).
"CLOSING" shall have the meaning set forth in SECTION 2.2(b)(ii).
"CLOSING DATE" shall have the meaning set forth in SECTION 8.2.
"CLOSING DOCUMENTS" shall have the meaning set forth in SECTION
4.3(a).
"CLOSING MONTH" shall have the meaning set forth in SECTION 8.5(a).
"CODE" shall mean the Internal Revenue Code of 1986, as amended, or
any corresponding provision(s) of any succeeding law.
"CONTRACTS" shall have the meaning set forth in SECTION 2.1(d).
"DEED" shall have the meaning set forth in SECTION 8.3(a)(i).
"DELINQUENT RENTS" shall have the meaning set forth in SECTION
8.5(a).
"DEPOSIT" shall have the meaning set forth in SECTION 2.2(b)(i).
"DUE DILIGENCE MATERIALS" shall mean all of the documents and other
materials delivered by or on behalf of Seller to Buyer, its Permitted Assignee
and their representatives during the Due Diligence Period.
"DUE DILIGENCE PERIOD" shall mean the period commencing on the date
hereof and ending at 5:00 P.M. (Central Time) on Friday, August 13, 2004, during
which period Buyer shall conduct the due diligence activities contemplated by
SECTION 4.5 of this Agreement.
"EVALUATION MATERIAL" shall have the meaning set forth in SECTION
9.10(a)(i).
"EFFECTIVE DATE" shall mean the date of this Agreement.
"ESCROW AGENT" shall have the meaning set forth in SECTION
2.2(b)(i).
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"EXISTING LEASES" shall mean those leases, license agreements and
occupancy agreements identified in SCHEDULE 4.1.1, as the same may be amended or
modified from time to time in accordance with the terms of this Agreement.
"EXPIRATION DATE" shall have the meaning set forth in SECTION
4.3(b).
"FEE PARCEL" shall have the meaning set forth in SECTION 2.1(a).
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, county or
municipal government, or political subdivision thereof, any governmental agency,
authority, board, bureau, commission, department, instrumentality, or public
body, or any court or administrative tribunal.
"HAZARDOUS MATERIALS" shall mean materials, wastes or substances
that are (A) included within the definition of any one or more of the terms
"hazardous substances", "hazardous materials, "toxic substances, "toxic
pollutants," and "hazardous waste" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, ET
SEQ.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901, ET SEQ.), the Clean Water Act (33 U.S.C. Section 1251, ET SEQ.), the Safe
Drinking Water Act (14 U.S.C. Section 1401, ET SEQ.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, ET SEQ.), and the Toxic Substance
Control Act (15 U.S.C. Section 2601, ET SEQ.) and the regulations promulgated
pursuant to such laws, (B) regulated, or classified as hazardous or toxic, under
federal, state or local environmental laws or regulations, (C) petroleum, (D)
asbestos or asbestos-containing materials, (E) polychlorinated biphenyls, (F)
flammable explosives or (G) radioactive materials.
"IMPROVEMENTS" shall have the meaning set forth in SECTION 2.1(a).
"INDEMNIFIED PARTY" shall have the meaning set forth in SECTION 6.1.
"INTANGIBLE PROPERTY" shall have the meaning set forth in SECTION
2.1(g).
"LEASES" shall mean all Existing Leases and New Leases,
collectively.
"LEASING COSTS" shall have the meaning set forth in SECTION 7.3(a).
"LICENSES AND PERMITS" shall have the meaning set forth in SECTION
2.1(g).
"MASTER LEASE ESCROW" shall have the meaning set forth in SECTION
7.2.
"MISSING TENANTS" shall have the meaning set forth in SECTION
3.1(f).
"NEW LEASES" shall mean those leases, license agreements and
occupancy agreements encumbering the Property which are entered into after the
Effective Date in accordance with the terms of this Agreement, as the same may
be amended or modified from time to time in accordance with the terms of this
Agreement.
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"NON-ANCHOR TENANT" shall mean any Tenant other than an Anchor
Tenant.
"NON-TERMINABLE CONTRACTS" shall have the meaning set forth in
SECTION 4.1(h).
"ORDER" shall mean an order or decree of any Governmental Authority.
"PERMITTED ASSIGNEE" shall have the meaning set forth in SECTION
9.6.
"PERMITTED EXCEPTIONS" shall have the meaning set forth in SECTION
5.1(b).
"PERSON" shall mean any individual, partnership, joint venture,
corporation, trust, limited liability company, unincorporated association, any
other entity and any government or any department or agency thereof, whether
acting in an individual, fiduciary or other capacity.
"PERSONAL PROPERTY" shall have the meaning set forth in SECTION
2.1(b).
"PRESCRIBED FORM" shall have the meaning set forth in SECTION 8.4.
"PRIME RATE" shall mean the prime (or base) rate of interest
publicly announced by Citibank, N.A. or its successors from time to time.
"PROPERTY" shall have the meaning set forth in SECTION 2.1.
"PURCHASE PRICE" shall have the meaning set forth in SECTION 2.2(a).
"REAL ESTATE TAXES" shall have the meaning set forth in SECTION
4.5(b)(iv).
"REAL PROPERTY" shall have the meaning set forth in SECTION 2.1.(a).
"RECORDS AND PLANS" shall have the meaning set forth in SECTION
2.1(f).
"REIMBURSEMENT EXPENSES" shall have the meaning set forth in SECTION
8.5(c).
"RELEASE" shall have the meaning set forth in SECTION 9.10(b).
"RENT ROLL" shall have the meaning set forth in SECTION 4.1(g).
"RENTS" shall have the meaning set forth in SECTION 8.5(a).
"REPRESENTATIVES" shall have the meaning set forth in SECTION
9.10(a)(i).
"REQUIRED DELETION ITEMS" shall have the meaning set forth in
SECTION 5.1(c).
"REQUIRED TENANTS" shall have the meaning set forth in SECTION
3.1(f).
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"RETAINED PARCELS" shall have the meaning set forth in SECTION 2.1.
"RETAINED PARCELS REA" shall have the meaning set forth in SECTION
8.3(a)(viii).
"SCHEDULE OF CONTRACTS" shall have the meaning set forth in SECTION
4.1(f).
"SCHEDULE OF LEASES" shall have the meaning set forth in SECTION
4.1(f).
"SCHEDULE OF LEASING COSTS" shall have the meaning set forth in
SECTION 7.2(a).
"SCHEDULE OF NON-TERMINABLE CONTRACTS" shall have the meaning set
forth in SECTION 4.1(h).
"SCHEDULE OF PENDING LITIGATION" shall have the meaning set forth in
SECTION 4.1(j).
"SCHEDULE OF TENANT DEFAULTS" shall have the meaning set forth in
SECTION 4.1(g).
"SELLER" shall have the meaning set forth in the first paragraph of
this Agreement.
"SELLER PARTY" or "SELLER PARTIES" shall have the meaning set forth
in SECTION 4.7(a).
"SELLER'S AFFIDAVIT" shall have the meaning set forth in SECTION
8.3(a)(vi).
"SHOPPING CENTER" shall have the meaning set forth in SECTION
2.1(a).
"SURVEY" shall have the meaning set forth in SECTION 5.1(a).
"TENANT" shall mean the tenant, occupier or licensee under any Lease
encumbering any Real Property.
"TERMINATION NOTICE" shall have the meaning set forth in SECTION
2.3.
"THRESHOLD AMOUNT" shall have the meaning set forth in SECTION
4.3(a).
"TITLE COMMITMENT" shall have the meaning set forth in SECTION
3.1(c).
"TITLE COMPANY" shall mean Chicago Title Insurance Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇).
"TITLE POLICY" shall have the meaning set forth in SECTION 5.2.
"VACANT SPACES" shall have the meaning set forth in SECTION 7.2.
"VACANT SPACES LEASE-UP COSTS" shall have the meaning set forth in
SECTION 7.2.
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"WARRANTIES" shall have the meaning set forth in SECTION 2.1(e).
"2003 RECONCILIATION PAYMENTS" shall have the meaning set forth in
SECTION 8.5(a).
SECTION 1.2 TERMS GENERALLY. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "HEREIN", "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(b) the words "INCLUDING" and "INCLUDE" and other words of similar
import shall be deemed to be followed by the phrase "WITHOUT LIMITATION"; and
(c) any consent, determination, election or approval required to be
obtained, or permitted to be given, by or of any party hereunder, shall be
granted, withheld or made (as the case may be) by such party in the exercise of
such party's reasonable discretion.
ARTICLE II
PURCHASE AND SALE OF PROPERTY
SECTION 2.1 SALE. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, subject only to the Permitted Exceptions and to all other
terms, covenants and conditions set forth herein, all of Seller's right, title
and interest in and to the following: (a) the parcel of land described in
SCHEDULE 2.1.1 attached hereto (the "FEE PARCEL") and being a portion of the
certain shopping center known as the ▇▇▇▇▇▇▇▇ RANCH PLAZA SHOPPING CENTER (the
"SHOPPING CENTER") and as more particularly shown on SCHEDULE 2.1.2 attached
hereto, together with any and all rights, privileges and casements appurtenant
thereto owned by Seller, together with all buildings, improvements and fixtures
(other than fixtures owned or removable by any Tenant or third party) located
thereon (collectively, the "IMPROVEMENTS"; the Fee Parcel, together with the
Improvements thereon, the "REAL PROPERTY") [Buyer acknowledges that the Real
Property does NOT include either Outparcel No. 6, which is under contract to be
sold to Steak N' Shake, OR that certain approximately 3.3 acre tract of land
shown on the Site Plan attached hereto as "Future Development," which such
parcels are being retained by the Seller (collectively, the "RETAINED
PARCELS")]; (b) all tangible personal property not owned or removable by any
Tenant or third party, if any, located on the Real Property and owned by Seller
and used in the operation or maintenance of the Real Property (the "PERSONAL
PROPERTY"); (c) (i) Seller's interest, as landlord, owner or licensor, in each
of the Existing Leases, (ii) Seller's interest, as landlord, owner or licensor,
in any New Leases and (iii) to the extent assignable, Seller's rights under any
guarantees, letters of credit or other instruments that secure or guarantee the
performance of the obligations of each Tenant; (d) to the extent assignable, all
service contracts, maintenance contracts, operating contracts, warranties,
guarantees, listing agreements, parking contracts and like contracts and
agreements relating to the Real Property, and commission agreements, equipment
leases, contracts, subcontracts and agreements relating to the construction of
any unfinished tenant improvements (collectively, the "CONTRACTS"); (e) to the
extent assignable, all warranties and guaranties made by or received from any
third party with respect to any building, building component, structure,
fixture, machinery, equipment or material situated on the Real Property, or
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contained in any or comprising a part of any Improvement (collectively, the
"WARRANTIES"); (f) to the extent Seller currently has such items in its
possession, all (i) preliminary, final and proposed building plans and
specifications (including "as-built" floor plans and drawings) and tenant
improvement plans and specifications for the Improvements and any leasehold
improvements made by any Tenant and (ii) surveys, grading plans, topographical
maps, architectural and structural drawings and engineering, environmental,
soils, seismic, geologic and architectural reports, studies and tests relating
to the Real Property ((f)(i) and (f)(ii) collectively, the "RECORDS AND PLANS");
and (g) to the extent transferable, any intangible personal property now or
hereafter owned by Seller and used in the ownership, use or operation of the
Real Property and/or the Personal Property, including the name "▇▇▇▇▇▇▇▇ Ranch
Plaza," but EXCLUDING the names "A.B.," "AIG," "▇▇▇▇▇," "A.L.," "American
International," or any portion, combination, or permutation of any one or more
of the foregoing, and any related names and proprietary computer equipment,
software and systems, BUT INCLUDING all (i) transferable licenses, permits,
building inspection approvals, certificates of occupancy, approvals, subdivision
maps and entitlements issued, approved or granted by Governmental Authorities in
connection with the Real Property, (ii) all recorded and unrecorded (but only to
the extent first approved by the Buyer) covenants, conditions and restrictions,
reciprocal easement agreements, area easement agreements and other common or
planned development agreements or documents affecting the Real Property and
(iii) licenses, consents, easements, rights of way and approvals obtained from
private parties to make use of utilities and to ensure vehicular and pedestrian
ingress and egress for the Real Property ((g)(i), (g)(ii) and (g)(iii)
collectively, the "LICENSES AND PERMITS") or other rights relating to the
ownership, use or operation of the Real Property or the Personal Property
(collectively, the "INTANGIBLE PROPERTY"). The Real Property, together with the
Personal Property, the Leases, the Contracts, the Warranties, the Records and
Plans and the Intangible Property relating thereto, are hereinafter collectively
referred to as the "PROPERTY."
SECTION 2.2 PURCHASE PRICE.
(a) The purchase price for the Property is Thirty-Four Million and
No/100 Dollars ($34,000,000.00) (the "PURCHASE PRICE"), subject to prorations,
credits and adjustments as set forth herein.
(b) The Purchase Price shall be paid by Buyer as follows:
(i) Within three (3) Business Days of execution of this
Agreement, Buyer will deposit the amount of Five Hundred Thousand and No/100
Dollars ($500,000.00) (the "DEPOSIT"), with Chicago Title Insurance Company, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇) (in such capacity, the "ESCROW AGENT").
(ii) If the sale of the Property as contemplated hereunder
is consummated, then the Deposit shall be returned to Buyer at the consummation
of the purchase and sale of the Property (the "CLOSING"), or at Buyer's option,
applied to the Purchase Price.
(iii) The Purchase Price, as adjusted pursuant to the terms
of this Agreement, shall be deposited by Buyer, in immediately available funds,
with the Escrow Agent and paid to Seller at the Closing.
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(c) (i) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED DUE TO THE
FAILURE OF ANY CONDITION TO BUYER'S OBLIGATION TO PURCHASE OR SELLER'S INABILITY
TO PERFORM OR SELLER'S DEFAULT HEREUNDER, THEN THE DEPOSIT SHALL BE RETURNED TO
BUYER, AND BUYER'S SOLE REMEDY, AT LAW OR IN EQUITY, SHALL BE THE RETURN OF THE
DEPOSIT, PROVIDED, THAT IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED BECAUSE
OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF SELLER, BUYER MAY EITHER (A)
TERMINATE THIS AGREEMENT BY WRITTEN NOTICE OF TERMINATION TO SELLER ON THE
CLOSING DATE, WHEREUPON THE DEPOSIT SHALL BE IMMEDIATELY RETURNED TO BUYER OR
(B) CONTINUE THIS AGREEMENT PENDING BUYER'S ACTION FOR SPECIFIC PERFORMANCE (IN
THE EVENT THAT BUYER PREVAILS IN SUCH SPECIFIC PERFORMANCE ACTION, BUYER SHALL
BE ENTITLED TO ALL REASONABLE FEES AND EXPENSES INCURRED BY BUYER IN SUCH
ACTION, INCLUDING REASONABLE ATTORNEYS FEES AND COURT COSTS).
(ii) IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED AS A
RESULT OF A DEFAULT BY BUYER HEREUNDER, THEN, AS ITS SOLE AND EXCLUSIVE REMEDY,
SELLER SHALL HAVE THE RIGHT TO OBTAIN THE DEPOSIT FROM THE TITLE COMPANY AND TO
RETAIN THE SAME AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A FAILURE TO CONSUMMATE THIS SALE DUE TO BUYER'S
DEFAULT, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER
NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, THE AMOUNT OF THE DEPOSIT IS A
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD INCUR IN SUCH EVENT. BY
PLACING ITS INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL
WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS
LIQUIDATED DAMAGES PROVISION. THE FOREGOING IS NOT INTENDED TO LIMIT BUYER'S
INDEMNITY OBLIGATIONS UNDER SECTIONS 4.6(a), 6.1, 9.4 AND 9.10(a).
INITIALS: SELLER ___________ BUYER ___________
SECTION 2.3 DUE DILIGENCE PERIOD. At any time prior to the expiration of
the Due Diligence Period, Buyer shall be free, in its sole and absolute
discretion, to terminate this Agreement by written notice to Seller (the
"TERMINATION NOTICE") delivered on or prior to the expiration date of the Due
Diligence Period. If the Termination Notice is not delivered on or prior to the
expiration date of the Due Diligence Period, Buyer shall be deemed to have
reviewed, accepted and approved (and all representations and warranties of
Seller made herein shall be subject to and qualified by) all of the Due
Diligence Materials. Notwithstanding anything to the contrary herein, Seller
shall have no liability whatsoever to Buyer with respect to any matter disclosed
to or discovered by Buyer or its agents prior to the Closing Date.
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ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE. Buyer's
obligation to purchase the Property is conditioned upon the satisfaction (or
Buyer's written waiver) on or prior to the Closing Date of the following
conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Seller from consummating the transactions
contemplated hereby.
(b) All consents required to be obtained from, or filings required
to be made with, any Governmental Authority or third party in connection with
the execution and delivery of this Agreement by Seller or the consummation by
Seller of the transactions contemplated hereby shall have been obtained or made.
(c) The Title Company shall have issued or shall have committed to
issue, upon payment of the applicable premium therefor, an ALTA Form B Owner's
Policy of Title Insurance, with respect to the Real Property in the form of the
title insurance commitment or preliminary title report issued by the Title
Company and delivered to and approved by Buyer pursuant to the terms of SECTION
5.1 hereof (the "TITLE COMMITMENT"), showing title to the Real Property vested
in Seller, subject only to the Permitted Exceptions. It shall not be a condition
to Closing that Buyer obtain any endorsements or coverages not set forth in the
Title Commitment.
(d) Each of the documents required to be delivered by Seller
pursuant to SECTION 8.3 shall have been delivered as provided therein and Seller
shall not otherwise be in material default of its material obligations
hereunder, and all of Seller's representations and warranties contained herein
shall be true and correct in all material respects as of the Closing Date.
(e) Buyer shall not have previously terminated this Agreement
pursuant to and in accordance with SECTION 7.7.
(f) On the Closing Date, not less than ninety-five percent (95%)
of the Improvements (or 190,383.80 square feet) shall be leased and the Tenants
thereunder shall be open and operating their respective demised premises and
paying full Rents and other Reimbursable Expenses, and have not filed for
bankruptcy or other relief from creditors (the "REQUIRED TENANTS").
Notwithstanding the foregoing, if, on the Closing Date, one or more of the
Required Tenants does not meet the requirements of the preceding sentence (the
"MISSING TENANTS"), the requirements of the preceding sentence will be deemed
satisfied if all of the following requirements are met: (a) the Missing Tenants
do not exceed 10,000 square feet individually or 30,360 square feet in the
aggregate; and (b) on the Closing Date, Seller deposits into the Master Lease
Escrow (as defined in SECTION 7.2 hereof) for each such Missing Tenant an amount
equal to: (i) twenty four (24) months Rents and Reimbursable Expenses in the
amounts specified in the Rent Roll (as hereinafter defined); and (ii) estimated
brokerage commissions in the amount of $3.00 per square foot and estimated
tenant improvement allowances in the amount of $5.00 per square foot (if the
premises are already in a vanilla box condition) or $15.00 per square foot (if
the premises are not in a vanilla box condition),
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with such amounts to be administered pursuant to the terms of the Master Lease
Escrow described in Section 7.2.
(g) Seller shall have obtained and delivered to Buyer the tenant
estoppel certificates and REA estoppel certificates described in Section 8.4.
SECTION 3.2 CONDITIONS TO SELLER'S OBLIGATIONS TO SELL. Seller's obligation
to sell the Property is conditioned upon the satisfaction (or Seller's written
waiver) on or prior to the Closing Date of the following conditions:
(a) There shall exist on the Closing Date no pending Order
prohibiting, enjoining or restraining Buyer from consummating the transactions
contemplated hereby.
(b) All consents required to be obtained from, or filings required
to be made with, any Governmental Authority or third party in connection with
the execution and delivery of this Agreement by Buyer or the consummation by
Buyer of the transactions contemplated hereby shall have been obtained or made.
(c) Buyer shall have deposited with the Title Company the entirety
of the Purchase Price, subject to the prorations set forth herein, any permitted
deductions and credit for the Deposit.
(d) Buyer shall not otherwise be in default of its obligations
hereunder, it being understood and agreed that a failure of Buyer to purchase
the Property shall be deemed a material breach by Buyer of this Agreement,
excusing performance by Seller.
(e) Each of the documents required to be delivered by Buyer
pursuant to SECTION 8.3 shall have been delivered as provided therein, and all
of Buyer's representations and warranties contained herein shall be true and
correct in all material respects as of the Closing Date.
SECTION 3.3 TERMINATION. In the event that any condition set forth in
SECTION 3.1 or SECTION 3.2 is not satisfied on or prior to the Closing Date,
then the party to this Agreement whose obligations are conditioned upon the
satisfaction of such condition may in its sole and absolute discretion terminate
this Agreement, subject to Section 2.2(c), by written notice delivered to the
other party at or prior to the occurrence of the Closing. Upon any termination
of this Agreement pursuant to this SECTION 3.3, neither party shall have any
further rights nor obligations hereunder, except as provided in SECTIONS 2.2(c),
4.6(a), 6.1. 9.4 and 9.10(a).
SECTION 3.4 WAIVER BY BUYER. If Buyer and/or its Permitted Assignee, with
knowledge of (i) a default in any of the covenants, agreements or obligations to
be performed by Seller under this Agreement and/or (ii) any breach of or
inaccuracy in any representation or warranty of Seller made in this Agreement,
nonetheless elects to proceed to Closing, then, upon the consummation of the
Closing, Buyer and/or its Permitted Assignee shall be deemed to have waived any
such default and/or breach or inaccuracy and shall have no claim against Seller
with respect thereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
BUYER'S EXAMINATION OF THE PROPERTY
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Subject to (i) the
provisions of SECTIONS 2.3, 4.2 and 4.3 and (ii) with respect to each of the
representations and warranties set forth below, except for those in clauses (a),
(b), (c) and (d) of this SECTION 4.1, to the information disclosed in the Due
Diligence Materials, Seller hereby makes the following representations and
warranties:
(a) Seller has not (i) made a general assignment for the benefit
of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing of any involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of the Property or all, or
substantially all, of Seller's other assets, (iv) suffered the attachment or
other judicial seizure of any of the Property or all, or substantially all, of
Seller's other assets, (v) admitted in writing its inability to pay its debts as
they come due or (vi) made an offer of settlement, extension or composition to
its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445 of
the Code and any related regulations.
(c) Seller is duly organized and validly existing and in good
standing under the laws of its state of formation. Seller further represents and
warrants that this Agreement and all documents executed by Seller that are to be
delivered to Buyer at Closing (i) are, or at the time of Closing will be, duly
authorized, executed and delivered by Seller, (ii) do not, and at the time of
Closing will not, violate any provision of any agreement or judicial order to
which Seller is a party or to which Seller or the Property is subject and (iii)
constitute (or in the case of Closing documents will constitute) a valid and
legally binding obligation of Seller, enforceable in accordance with its terms.
(d) Seller has full and complete power and authority to enter into
this Agreement and to perform its obligations hereunder.
(e) Seller is not aware of any consents required for the
performance of Seller's obligations hereunder.
(f) The Due Diligence Materials contain true, correct and complete
copies of all Existing Leases, all material Contracts and all material
environmental and structural reports in the possession of Seller. All Existing
Leases, in effect on the Effective Date, are identified in SCHEDULE 4.1.1 (the
"SCHEDULE OF LEASES") and all Contracts, in effect on the Effective Date, are
identified in SCHEDULE 4.1.2 (the "SCHEDULE OF CONTRACTS"). This representation
shall not be deemed breached by virtue of any Leases or Contracts entered into
after the Effective Date in accordance with SECTION 7.1.
(g) Except as included in the Due Diligence Materials (including
the rent roll attached hereto as SCHEDULE 4.1.3 attached hereto (the "RENT
ROLL")), there are, to Seller's knowledge,
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(i) no leases, license agreements or occupying agreements (or any amendments or
supplements thereto) encumbering, or in force with respect to, the Property
(except for any New Leases entered into after the Effective Date in accordance
with SECTION 7.1) and (ii) no material defaults by any Tenants under the
Existing Leases, except as set forth in SCHEDULE 4.1.4 (the "SCHEDULE OF TENANT
DEFAULTS").
(h) To Seller's knowledge, the only Contracts and amendments
thereto that will be in effect on the Closing Date that are not terminable
without cause or penalty within sixty (60) days (the "NON-TERMINABLE CONTRACTS")
are as set forth in SCHEDULE 4.1.5 (the "SCHEDULE OF NON-TERMINABLE CONTRACTS")
or as entered into in accordance with SECTION 7.1.
(i) As of the Effective Date, Seller has not received any written
notice of any pending or threatened condemnation of all or any portion of the
Property.
(j) Seller has not received written notice of any litigation that
is pending or threatened with respect to the Property, except (i) litigation
fully covered by insurance policies (subject to customary deductibles) or (ii)
litigation set forth in SCHEDULE 4.1.6 (the "SCHEDULE OF PENDING LITIGATION").
(k) As of the Effective Date, except as set forth in the Due
Diligence Materials, Seller has not received any written notice from any
Governmental Authority that all or any portion of the Property is in material
violation of any applicable building codes or any applicable environmental law
(relating to clean-up or abatement), zoning law or land use law, or any other
applicable local, state or federal law or regulation relating to the Property,
which material violation has not been cured or remedied prior to the Effective
Date. Seller will advise Purchaser in the event that Seller receives any written
notice from any Governmental Authority that all or any portion of the Property
is in material violation of any applicable building codes or any applicable
environmental law (relating to clean-up or abatement), zoning law or land use
law, or any other applicable local, state or federal law or regulation relating
to the Property between the Effective Date and the Closing Date.
(l) Except as set forth in the Existing Leases, Seller has not
granted any option or right of first refusal or first opportunity to any party
to acquire any fee interest in any portion of the Property.
Each of the representations and warranties of Seller contained in
this SECTION 4.1: (1) is made as of the Effective Date (subject to the
information disclosed in the Due Diligence Materials); (2) other than clauses
(i) and (k) above (which, in the case of clause (i) above, the parties
acknowledge shall be governed by SECTION 7.7 with respect to events occurring
after the Effective Date) shall be deemed remade by Seller, and shall be true in
all material respects, as of the Closing Date, subject to (A) the information
disclosed in the Due Diligence Materials, (B) litigation that is not reasonably
likely to have a material adverse effect on the Property, and (C) other matters
expressly permitted in this Agreement or otherwise specifically approved in
writing by Buyer; and (3) shall survive the Closing only as and to the extent
expressly provided in SECTION 4.2 and SECTION 4.3. If prior to the expiration of
the Due Diligence Period, Buyer discovers the existence of any option or right
of first refusal or first opportunity to acquire any fee interest in any portion
of the
15
Property, Buyer shall promptly provide Seller written notice thereof so that the
same may be disclosed to the Title Company in Seller's Affidavit.
SECTION 4.2 ESTOPPELS. The representations and warranties of Seller
regarding Leases in SECTION 4.1(f) or 4.1(g) shall cease to survive the Closing
to the extent specifically confirmed by a tenant estoppel certificate delivered
by a Tenant.
SECTION 4.3 LIMITATION ON CLAIMS; SURVIVAL OF REPRESENTATIONS AND
WARRANTIES.
(a) Notwithstanding any provision to the contrary herein or in any
document or instrument (including, without limitation, any deeds or assignments)
executed by Seller and delivered to Buyer or its Permitted Assignee at or in
connection with the Closing (collectively, "CLOSING DOCUMENTS"), Seller shall
have no liability whatsoever with respect to any suits, actions, proceedings,
investigations, demands, claims, liabilities, fines, penalties, liens,
judgments, losses, injuries, damages, expenses or costs, including, without
limitation, attorneys' and experts' fees and costs and investigation, and
remediation costs (collectively, "CLAIMS") under any of the representations and
warranties contained in this Agreement or in any Closing Document, except to the
extent (and only to the extent) that the amount of such Claims exceeds Ten
Thousand and No/100 Dollars ($10,000.00) (the "THRESHOLD AMOUNT") (and, in such
case, such Claims shall only be valid (and Seller shall only be liable) for the
portion that exceeds the Threshold Amount; PROVIDED, HOWEVER, notwithstanding
any provision to the contrary herein or in any Closing Document, the total
aggregate liability of Seller for any or all Claims with respect to the entirety
of the Property shall not exceed the sum of Five Hundred Thousand and No/100
Dollars ($500,000.00). Further notwithstanding any provision to the contrary
herein or in any Closing Document, Seller shall have no liability with respect
to any Claim under any of the representations and warranties contained in this
Agreement or in any Closing Document, which Claim relates to or arises in
connection with (1) any Hazardous Materials (except solely to the extent that
Seller has breached its representation in SECTION 4.1(k)), (2) the physical
condition of the Property (except solely to the extent that Seller has breached
its representation in SECTION 4.1(k)) or (3) any other matter not expressly set
forth in Seller's representations and warranties in SECTION 4.1. Buyer shall not
make any Claim or deliver any Claim Notice unless it in good faith believes the
Claims would exceed the Threshold Amount provided in this SECTION 4.3(a).
(b) Except as otherwise specifically set forth in this Agreement,
the representations and warranties of Seller contained herein or in any Closing
Document shall survive only until the date that is one (1) year following the
Closing Date (the "EXPIRATION DATE"). Any Claim that Buyer may have at any time
against Seller for a breach of any such representation or warranty, whether
known or unknown, with respect to which a Claim Notice HAS NOT been delivered to
Seller on or prior to the Expiration Date shall not be valid or effective. For
the avoidance of doubt, on the Expiration Date, Seller shall be fully discharged
and released (without the need for separate releases or other documentation)
from any liability or obligation to Buyer, its Permitted Assignee and/or their
successors and assigns with respect to any Claims or any other matter relating
to this Agreement, any Closing Document or the Property, except solely for those
matters that are then the subject of a pending Claim Notice delivered by Buyer
to Seller. Any Claim that Buyer may have at any time against Seller for a breach
of any such representation or warranty, whether known or
16
unknown, with respect to which a Claim Notice HAS been delivered to Seller on or
prior to the Expiration Date may be the subject of subsequent litigation brought
by Buyer against Seller, PROVIDED that such litigation is commenced against
Seller on or prior to the date that is sixty (60) days following the Expiration
Date. For the avoidance of doubt, on the date that is sixty (60) days following
the Expiration Date, Seller shall be fully discharged and released (without the
need for separate releases or other documentation) from any liability or
obligation to Buyer and/or its successors and assigns with respect to any Claims
or any other matter relating to this Agreement, any Closing Document or the
Property, except solely for those matters that are the subject of litigation by
Buyer against Seller that is pending on the date that is sixty (60) days
following the Expiration Date.
(c) This SECTION 4.3 shall survive the Closing.
SECTION 4.4 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby makes the
following representations and warranties:
(a) Buyer is a corporation duly organized and validly existing and
in good standing under the laws of the State of Illinois. Buyer further
represents and warrants to Seller that this Agreement and all documents executed
by Buyer that are to be delivered to Seller at Closing (i) are, or at the time
of Closing will be, duly authorized, executed and delivered by Buyer, (ii) do
not, and at the time of Closing will not, violate any provision of any agreement
or Order to which Buyer is a party or to which Buyer or the Property owned by
Buyer is subject and (iii) constitutes (or in the case of Closing documents will
constitute) a valid and legally binding obligation of Buyer, enforceable in
accordance with its terms.
(b) Buyer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the
filing, of any involuntary petition by Buyer's creditors, (iii) suffered the
appointment of a receiver to take possession of all, or substantially all, of
Buyer's assets, (iv) suffered the attachment or other judicial seizure of all,
or substantially all, of Buyer's assets, (v) admitted in writing its inability
to pay its debts as they come due or (vi) made an offer of settlement, extension
or composition to its creditors generally. As of the Closing Date, Buyer will
have sufficient funds to pay the Purchase Price and consummate the transactions
contemplated by this Agreement.
(c) Buyer has full and complete power and authority to enter into
this Agreement and to perform its obligations hereunder.
(d) Buyer (i) is a sophisticated investor, (ii) is represented by
competent counsel and (iii) understands the assumptions of risk and liability
set forth in this Agreement.
(e) No consents are required to be obtained from, and no filings
are required to be made with, any Governmental Authority or third party in
connection with the execution and delivery of this Agreement by Buyer or the
consummation by Buyer of the transactions contemplated hereby.
Each of the representations and warranties of Buyer contained in
this Section (i) is made on the Effective Date; (ii) shall be deemed remade by
Buyer and/or its assignee(s), as
17
applicable and appropriate, and shall be true in all material respects, as of
the Closing Date; and (iii) shall survive the Closing. Except as otherwise
specifically set forth in this Agreement, the representations and warranties of
Buyer contained herein or in any Closing Document shall survive only until the
date that is one (1) year following the Closing Date (the "EXPIRATION DATE").
SECTION 4.5 BUYER'S INDEPENDENT INVESTIGATION.
(a) Buyer, for itself and any successors or assigns (including any
Permitted Assignee), acknowledges and agrees that it is being given the full
opportunity during the Due Diligence Period to inspect and investigate each and
every aspect of the Property, either independently or through agents,
representatives or experts of Buyer's choosing, as Buyer considers necessary or
appropriate, and the failure of Buyer to terminate this Agreement prior to the
expiration of the Due Diligence Period will conclusively evidence Buyer's
complete satisfaction with such independent investigation (but will not
constitute a waiver of any breach of representation or warranty set forth in
SECTION 4.1 unless such breach is disclosed in the Due Diligence Materials or is
otherwise known by Buyer and/or any Permitted Assignee before the Closing Date
and Buyer and/or such Permitted Assignee(s) elect to proceed with the Closing).
Such independent investigation by Buyer may include, without limitation:
(i) all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal
requirements with respect to the Property, such as taxes, assessments, zoning,
use permit requirements and building codes;
(iii) all zoning, land use, building, environmental and other
statutes, rules or regulations applicable to the Property;
(iv) the physical condition of the Property, including,
without limitation, the interior, the exterior, the square footage of the
Improvements and of each tenant space therein, the structure, the roof, the
paving, the utilities and all other physical and functional aspects of the
Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting the Property;
(vi) the Leases with respect to the Property and all matters
in connection therewith, including, without limitation, the ability of the
Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of
significance affecting the Property;
(viii) all matters that would be revealed by an ALTA as-built
survey, a physical inspection or an environmental site assessment of the
Property;
18
(ix) all matters relating to the income and operating or
capital expenses of the Property and all other financial matters; and
(x) all other matters of significance affecting, or otherwise
deemed relevant by Buyer with respect to, the Property.
(b) The Due Diligence Materials heretofore delivered (or to be
delivered within five (5) Business Days following the Effective Date) by Seller
to Buyer for its review and approval include:
(i) the existing Leases (including all amendments thereto)
and Contracts;
(ii) to the extent the following are in Seller's possession
for the Property:
(1) current financial statements of Tenants and
guarantors, if any;
(2) architectural drawings, plans and specifications;
and
(3) existing survey.
(iii) existing owner's title policy for the Property; and
(iv) the bills issued for the most recent year for the
Property for all real estate taxes ("REAL ESTATE TAXES").
(c) Buyer acknowledges and agrees that (i) on or prior to the
expiration of the Due Diligence Period it will have completed its independent
investigation of the Property and the Due Diligence Materials, (ii) it is
acquiring the Property based on such independent investigation and subject to
all information disclosed in the Due Diligence Materials (and also in reliance
on Seller's representations and warranties contained herein), and (iii) shall
have no right after the expiration of the Due Diligence Period to terminate this
Agreement based on any further investigations of the Property or the Due
Diligence Materials. The failure of Buyer to send a Termination Notice prior to
the expiration of the Due Diligence Period shall conclusively constitute Buyer's
approval of each and every aspect of the Property. The preceding sentence is not
intended to relieve, and shall not relieve, Seller from any of its obligations
under SECTION 4.1, if any.
(d) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT (i) SELLER SHALL
SELL AND BUYER SHALL PURCHASE THE PROPERTY "AS IS, WHERE IS AND WITH ALL FAULTS"
AND (ii) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, BUYER IS NOT RELYING ON
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER, NOR ANY
PARTNER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLER, AS TO ANY
MATTER, CONCERNING THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE
DILIGENCE MATERIALS (INCLUDING WITHOUT LIMITATION, THE COMPLETENESS THEREOF),
INCLUDING
19
WITHOUT LIMITATION: (i) the quality, nature, habitability, merchantability, use,
operation, value, marketability, adequacy or physical condition of the Property
or any aspect or portion thereof, including, without limitation, structural
elements, foundation, roof, appurtenances, access, landscaping, parking
facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems,
facilities and appliances, soils, geology and groundwater, (ii) the dimensions
or lot size of the Real Property or the square footage of the Improvements
thereon or of any tenant space therein, (iii) the development or income
potential, or rights of or relating to, the Real Property, or the Real
Property's use, habitability, merchantability, or fitness, or the suitability,
value or adequacy of the Real Property for any particular purpose, (iv) the
zoning or other legal status of the Real Property or any other public or private
restrictions on the use of the Real Property, (v) the compliance of the Real
Property or its operation with any applicable codes, laws, regulations,
statutes, ordinances, covenants, conditions and restrictions of any Governmental
Authority or of any other person or entity (including, without limitation, the
Americans with Disabilities Act), (vi) the ability of Buyer to obtain any
necessary governmental approvals, licenses or permits for Buyer's intended use
or development of the Real Property, (vii) the presence or absence of Hazardous
Materials on, in, under, above or about the Real Property or any adjoining or
neighboring property, (viii) the quality of any labor and materials used in any
Improvements, (ix) the condition of title to the Real Property, (x) the Leases,
Contracts or any other agreements affecting the Real Property or the intentions
of any party with respect to the negotiation and/or execution of any lease or
contract with respect to the Real Property, (xi) Seller's ownership of the
Property or any portion thereof or (xii) the economics of, or the income and
expenses, revenue or expense projections or other financial matters, relating
to, the operation of the Real Property. Without limiting the generality of the
foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on
any representation or warranty of Seller, nor any partner, officer, employee,
attorney, agent or broker of Seller, whether implied, presumed or expressly
provided at law or otherwise, arising by virtue of any statute, common law or
other legally binding right or remedy in favor of Buyer. Buyer further
acknowledges and agrees that Seller is under no duty to make any inquiry
regarding any matter that may or may not be known to Seller or any partner,
officer, employee, attorney, agent or broker of Seller. This SECTION 4.5(d)
shall survive the Closing, or, if the Closing does not occur, beyond the
termination of this Agreement.
As a condition to Closing, and subject to the provisions of SECTION 3.1(f)
and SECTION 7.2, all unleased space shall be constructed to vanilla shell
finish; provided, however, that at Seller's option, Seller may escrow with the
Escrow Agent at Closing an amount necessary to complete such vanilla shell
finish, and Seller shall complete such work when the spaced is leased; upon
completion of such construction and delivery to Buyer of lien waivers from
applicable contractors confirming that all work has been paid, the escrowed
funds will be released to the Seller.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE
RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT THERE IS NO OBLIGATION ON THE
PART OF SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO
CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER.
BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY
OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY AND
FOR ANY
20
REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER'S SOLE COST
AND EXPENSE.
SECTION 4.6 ENTRY AND INDEMNITY; LIMITS ON GOVERNMENT CONTACTS.
(a) In connection with any entry by Buyer, its Permitted
Assignee(s) or any of their agents, employees or contractors (each a "BUYER
PARTY", and collectively, the "BUYER PARTIES") onto the Real Property, Buyer
shall give Seller reasonable advance notice of such entry and shall conduct such
entry and any inspections in connection therewith so as to minimize, to the
greatest extent possible, interference with Seller's business and the business
of the Tenants and otherwise in a manner reasonably acceptable to Seller.
Without limiting the foregoing, prior to any entry to perform any necessary
on-site testing, Buyer shall give Seller written notice thereof, including the
identity of the company or persons who will perform such testing and the
proposed scope of the testing and the party performing the testing. Seller shall
approve or disapprove any proposed testing and the party performing the same
within three (3) Business Days after receipt of such notice. If a Buyer Party
takes any sample from the Real Property in connection with any such approved
testing, Buyer shall provide to Seller a portion of such sample being tested to
allow Seller, if it so chooses, to perform its own testing. Seller or its
representative may be present to observe any testing, or other inspection
performed on the Real Property. Buyer shall promptly deliver to Seller copies of
any reports relating to any testing or other inspection of the Real Property
performed by or on behalf of any Buyer Party in the event that (i) Buyer
requests any action on the part of Seller as a result of such testing or (ii)
Buyer subsequently terminates this Agreement as a result of the information
contained in any such report. Buyer shall maintain, and shall ensure that its
contractors maintain, public liability and property damage insurance insuring
the Buyer Parties against any liability arising out of any entry or inspections
of the Real Property pursuant to the provisions hereof. Such insurance
maintained by Buyer shall be in the amount of Two Million and No/100 Dollars
($2,000,000.00) combined single limit for injury to or death of one or more
persons in an occurrence, and for damage to tangible property (including loss of
use) in an occurrence. The policy maintained by Buyer shall insure the
contractual liability of Buyer covering the indemnities herein and shall (i)
name Seller (and its respective successors, assigns and Affiliates) as
additional insureds, (ii) contain a cross-liability provision, and (iii) contain
a provision that "the insurance provided by Buyer hereunder shall be primary and
noncontributing with any other insurance available to Seller." Buyer shall
provide Seller with evidence of such insurance coverage prior to any entry or
inspection of the Real Property. Buyer shall indemnify and hold the Seller
Parties harmless from and against any Claims arising out of or relating to any
entry on any Real Property by any Buyer Party, in the course of performing any
inspections, testings or inquiries. The foregoing indemnity shall survive the
Closing, or, if the Closing does not occur, beyond the termination of this
Agreement.
(b) Notwithstanding any provision in this Agreement to the
contrary, neither Buyer nor any other Buyer Party shall contact any Governmental
Authority regarding any Hazardous Materials on or the environmental condition of
the Real Property without Seller's prior written consent thereto, unless
required to do so by applicable law (and in such case, Buyer shall provide
Seller written notice prior to such notification). Buyer may contact applicable
Governmental Authorities and review public records for customary information to
obtain an environmental audit of the Property. In addition, if Seller's consent
is obtained by Buyer, Seller shall be entitled to receive
21
at least five (5) Business Days' prior written notice of the intended contact
and to have a representative present when Buyer has any such contact with any
governmental official or representative.
SECTION 4.7 RELEASE.
(a) Without limiting the provisions of SECTION 4.5, Buyer, for
itself and any successors and assigns of Buyer (including, without limitation,
any Permitted Assignee), waives its right to recover from, and forever releases
and discharges, and covenants not to ▇▇▇, Seller, Seller's Affiliates, Seller's
property and asset managers, any lender to Seller, the partners, trustees,
shareholders, controlling persons, directors, officers, attorneys, employees and
agents of each of them, and their respective heirs, successors, personal
representatives and assigns (each a "SELLER PARTY", and collectively, the
"SELLER PARTIES") with respect to any and all Claims, whether direct or
indirect, known or unknown, foreseen or unforeseen, that may arise on account of
or in any way he connected with the Property including, without limitation, the
physical, environmental and structural condition of the Real Property or any law
or regulation applicable thereto, including, without limitation, any Claim or
matter relating to the use, presence, discharge or release of Hazardous
Materials on, under, in, above or about the Real Property; PROVIDED, HOWEVER,
Buyer does not waive its rights, if any, to recover from, and does not release
or discharge or covenant not to ▇▇▇ Seller for (i) any breach of Seller's
representations or warranties set forth in SECTION 4.1, subject to the
limitations and conditions provided herein, (ii) any breach of Seller's
obligations set forth in this Agreement, (iii) Claims covered by Seller's
policies of insurance, (iv) litigation actually commenced against Seller by one
or more third-parties prior to Closing, and (v) warranties and representations
contained in any Closing Documents.
(b) This SECTION 4.7 shall survive the Closing indefinitely.
ARTICLE V
TITLE AND SURVEY MATTERS
SECTION 5.1 DELIVERY; OBJECTION.
(a) Buyer acknowledges receipt from Seller of an ALTA survey last
revised June 30, 2004 (the "SURVEY") of the Property prepared by
Florida Design
Group, Inc., and a title insurance commitment prepared by Hobby & Hobby P.A.,
together with copies of all Schedule B title exceptions noted therein. Buyer
will, within five (5) days after the Effective Date, order a Title Commitment
from Title Company (the "TITLE COMMITMENT"). Buyer shall have until July 23,2004
to review the Survey and Title Commitment and to deliver in writing to Seller
such objections as Buyer may have to anything contained in the Survey or the
Title Commitment. Any such item to which Purchaser shall not object shall be
deemed a "PERMITTED EXCEPTION." Seller shall have a period of five (5) days
after receipt of Buyer's notice of title objections to advise Buyer is Seller is
willing to cure such objections (but Seller shall be under no obligation to do
so). In the event that Seller elects not to cure any title objections raised by
the Buyer, Buyer's sole remedies shall be to waive such objection and proceed to
Closing, or terminate this Agreement and receive a refund of the Deposit, in
which case this Agreement shall terminate and neither party shall have further
rights or obligations
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hereunder. Nothing contained herein shall require Seller to bring any action or
proceeding or otherwise to incur any expense to correct, discharge or otherwise
remove title exceptions or defects with respect to the Property or to remove,
remedy or comply with any other grounds for Buyer's refusing to approve title,
PROVIDED that Seller, at Seller's sole cost and expense, shall be obligated to
remove or discharge, or otherwise cause the Title Company to omit as an
exception to title or to insure against collection thereof from or against the
Property any mortgages created by Seller, any mechanics' liens or judgment liens
that are the obligation of Seller (as opposed to any Tenant or other third
party) and any liens and encumbrances voluntarily created by Seller in violation
of SECTION 7.3 (collectively, the "REQUIRED DELETION ITEMS"). If on the Closing
Date there are any Required Deletion Items, Seller may use any portion of the
Purchase Price payable pursuant to SECTION 2.2(b) to satisfy same, PROVIDED the
Title Company shall omit such lien or encumbrance as an exception to title.
SECTION 5.2 EVIDENCE OF TITLE. Delivery of title in accordance with the
foregoing shall be evidenced by the Title Company issuing, or to committing to
issue, at Closing, upon payment by Seller of the applicable premium therefor, an
ALTA Extended Form Owner's Policy of Title Insurance in the amount of the
Purchase Price showing title to the Property vested in Buyer or its Permitted
Assignee or designee, subject only to the Permitted Exceptions (the "TITLE
POLICY").
ARTICLE VI
BROKERS AND EXPENSES
SECTION 6.1 BROKERS. Seller and Buyer represent and warrant to each other
that no broker or finder was instrumental in arranging or bringing about this
transaction and that there are no claims or rights for brokerage commissions or
finders' fees in connection with the transactions contemplated hereby by any
person or entity. If any person brings a claim for a commission or finder's fee
based upon any contact, dealings or communication with Buyer or Seller, then the
party through whom such person makes its claim shall defend the other party (the
"INDEMNIFIED PARTY") from such claim, and shall indemnify the Indemnified Party
and hold the Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including without limitation, reasonable attorneys'
fees and disbursements) incurred by the Indemnified Party in defending against
the claim. The provisions of this SECTION 6.1 shall survive the Closing or, if
the Closing does not occur, any termination of this Agreement.
SECTION 6.2 EXPENSES. Except as provided in SECTION 8.5(d), each party
hereto shall pay its own expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
ARTICLE VII
INTERIM OPERATION OF THE PROPERTY
SECTION 7.1 INTERIM OPERATION OF THE PROPERTY.
(a) Except as otherwise contemplated or permitted by this
Agreement or approved by Buyer in writing, from the Effective Date to the
Closing Date, Seller agrees that it will carry on
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the business of Seller with respect to the Property in the manner in which it
has heretofore conducted such business.
(b) In the event Seller enters into any new Contract or Lease, or
amends any existing Contract or Lease, prior to the expiration of the Due
Diligence Period, Seller shall provide Buyer a copy of the same within three (3)
Business Days after entering into any such new or amended Contract or Lease, and
Buyer shall have until the expiration of the Due Diligence Period to review any
such new or amended Contract or Lease, PROVIDED in no event shall Buyer have
less than five (5) days prior to the expiration of the Due Diligence Period to
complete such review (and the Due Diligence Period shall be extended as
necessary).
(c) Following the expiration of the Due Diligence Period, Seller
shall first obtain Buyer's reasonable approval prior to entering into any new
Contract or Lease, or amending any existing Contract or Lease. Any such
approval, by Buyer shall not be unreasonably withheld or delayed and shall be
deemed granted if Buyer does not respond in writing to Seller's request for
approval within three (3) Business Days from its receipt thereof.
SECTION 7.2 VACANT SPACES.
As of the Effective Date of this Agreement, certain spaces within the
Property are vacant with no tenant paying rent (the "VACANT SPACES"). A
schedule of the Vacant Spaces is attached hereto as SCHEDULE 7.2.1. At Closing,
Seller agrees to establish an escrow (the "MASTER LEASE ESCROW") with the Escrow
Agent from the proceeds of the Purchase Price in the amount of: (i) rent and
additional charges for the Vacant Spaces for a period of twenty four (24) months
following the Closing Date, subject to the limitations set forth hereinbelow in
this Section; and (ii) estimated brokerage commissions in the amount of $3.00
per square foot and estimated tenant improvement allowances in the amount of
$5.00 per square foot for vanilla box finish ($15.00 if not vanilla box finish)
with respect to each of the Vacant Spaces (such estimated brokerage commissions
and tenant improvement allowances being hereinafter collectively referred to as
the "VACANT SPACES LEASE-UP COSTS"). Notwithstanding, Buyer acknowledges that
the space shown on the rent roll as "MIN B" (10,000 square feet) is being
divided into three (3) spaces of 6,000 square feet, 1,400 square feet, and 1,600
square feet, and the Seller is negotiating leases for such space; NO MASTER
LEASE WILL BE REQUIRED FOR THE 800 SQUARE FOOT BALANCE OF SUCH DIVIDED SPACE.
Buyer and Seller agree that if any portion of the Vacant Spaces is leased
in accordance with the terms of this Agreement between now and the Closing Date,
the actual amount to be placed into such escrow shall be recalculated as of the
Closing Date to reflect such leased space and the terms of the applicable
leases. The Master Lease Escrow shall be invested by the Escrow Agent in an
interest-bearing account with a federally-insured banking institution reasonably
acceptable to Seller and Buyer pursuant to an escrow agreement approved by the
parties and the Escrow Agent. Buyer shall have the right to draw from the Master
Lease Escrow, on the first day of each month, an amount sufficient to pay the
monthly rental amounts set forth in SCHEDULE 7.2.1 for the Vacant Spaces,
together with estimated common area maintenance charges ("CAM"), insurance and
Real Estate Taxes with respect thereto.
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The estimated payments for CAM, insurance and Real Estate Taxes withdrawn
monthly by Buyer shall be reconciled by Buyer and Seller within sixty (60) days
after the end of each calendar year during the Master Lease Escrow or the end of
the Master Lease Escrow (whichever occurs first) to the actual charges for CAM,
insurance and Real Estate Taxes. Upon reconciliation, if one party owes the
other party a refund or payment, respectively, then such party shall pay the
other party within thirty (30) days after its receipt of the reconciliation
statement. Seller's obligations in respect thereof for any Vacant Space, as the
case may be, shall terminate on the date that is the earlier to occur of (i) the
date that a tenant, reasonably acceptable to both Seller and Buyer, begins the
payment of rent and additional charges in an amount equal to or greater than the
amount shown in SCHEDULE 7.2.1 with respect to such space, or (ii) one (1) year
following the Closing Date. The Vacant Spaces Lease-Up Costs shall be disbursed
to Buyer from time-to-time, with Seller's prior, written approval, which
approval shall not be unreasonably withheld, delayed or conditioned and shall be
given if Seller shall not have provided notice to the contrary within five (5)
Business Days from Buyer's disbursement request, in order for Buyer to pay such
brokerage commissions or tenant improvement costs as are due under any Lease
entered into by Buyer for a Vacant Space after the Closing Date, as demonstrated
by applicable invoices and appropriate lien waivers or releases. Buyer and
Seller shall both use reasonable efforts to lease the Vacant Spaces. Buyer shall
not unreasonably withhold its consent to any New Lease for a Vacant Space
procured by Seller so long as (a) such tenant will be paying, at a minimum, the
rental amounts set forth in SCHEDULE 7.2.1, and (b) the brokerage fee and tenant
improvement allowance do not exceed the amounts set forth in SCHEDULE 7.2.1;
PROVIDED, HOWEVER, in the event the brokerage fee and/or tenant improvement
allowance for any proposed lease do exceed the amount set forth in SCHEDULE
7.2.1, Buyer shall not unreasonably withhold its consent to such proposed lease
if Seller agrees to pay all excess costs above the Vacant Space Lease-Up Costs
shown on SCHEDULE 7.2.1. In the event any Tenant of a Vacant Space fails to
begin the payment of rent or additional charges as required pursuant to the
terms of such Tenant's Lease as a result of a default by Buyer, as landlord
under the Tenant's Lease, Seller's obligations to pay such rent and additional
charges for such Vacant Space shall terminate as of the date of Buyer's default.
Amounts in the Master Lease Escrow applicable to a Vacant Space (exclusive
of the Vacant Spaces Lease-Up Costs for executed leases, to the extent such
Vacant Space Lease-Up Costs have not been paid to the applicable Tenant) shall
be released to the Seller once an executed Lease is obtained for the applicable
Vacant Space, and any balance remaining in the Master Lease Escrow (exclusive of
the Vacant Spaces Lease-Up Costs for executed leases, to the extent such Vacant
Space Lease-Up Costs have not been paid to the applicable Tenant) shall be
released to the Seller in all events on the date that is twenty four (24) months
following the Closing and Seller shall have no further liability with respect to
any matters set forth in this SECTION 7.2(a).
SECTION 7.3 LEASING COSTS.
(a) In the event that there are any unpaid costs for tenant
improvement work or allowances, third-party leasing commissions, or other
leasing costs (collectively, "LEASING COSTS") with respect to any Lease as of
the Closing Date, then at Closing, Buyer shall receive a credit towards the
Purchase Price for any unpaid Leasing Costs. A schedule of all unpaid Leasing
Costs, as of the Effective Date of this Agreement, is attached hereto as
SCHEDULE 7.3.1 (the "SCHEDULE OF LEASING COSTS").
25
(b) If the Closing occurs, Buyer shall be responsible and shall
pay for any Leasing Costs relating to or arising from (i) those Leases or
modifications of Leases entered into by Buyer on or after the Closing Date and
for those Leases listed in SCHEDULE 7.3.1 that were entered into prior to the
Closing Date for which Buyer shall receive a credit towards the Purchase Price
at Closing, and (ii) the exercise by a Tenant of a renewal, expansion or
extension option contained in any Lease, which renewal or extension period
commences, or which expansion space such Tenant first has the right to occupy,
on or after the Closing Date.
(c) The provisions of this SECTION 7.3 shall survive the Closing.
SECTION 7.4 SELLER'S MAINTENANCE OF THE PROPERTY. Between the Effective
Date and the Closing Date, Seller shall (a) maintain the Property in
substantially the same manner as prior hereto pursuant to Seller's normal course
of business, subject to reasonable wear and tear and further subject to the
occurrence of any damage or destruction thereto by casualty or other causes or
events beyond the control of Seller; PROVIDED, HOWEVER, that Seller's
maintenance obligations under this SECTION 7.4 shall not include any obligation
to make capital expenditures not incurred in Seller's normal course of business
or any other expenditures not incurred in Seller's normal course of business;
(b) continue to maintain its existing insurance coverage; and (c) not grant any
voluntary liens or encumbrances affecting the Property other than Permitted
Exceptions of the type described in clauses (i) and (x) of SECTION 5.1(b).
SECTION 7.5 LEASE ENFORCEMENT. Subject to the provisions of SECTION 7.1,
prior to the Closing Date, Seller shall have the right, but not the obligation,
to enforce the rights and remedies of the landlord under any Lease or New Lease,
by summary proceedings or otherwise, and to apply all or any portion of any
security deposits then held by Seller toward any loss or damage incurred by
Seller by reason of any defaults by any Tenant, PROVIDED, that (i) with respect
to delinquent rents, Seller may apply Tenant security deposits held by Seller
only to rents that are thirty (30) days or more past due and (ii) with respect
to any application by Seller of Tenant security deposits held by Seller, Seller
will deliver, in connection with any such application, written notice to the
affected Tenant(s) indicating that their security deposits have been or are
being so applied.
SECTION 7.5 LEASE TERMINATION PRIOR TO CLOSING. Except as otherwise
expressly provided in SECTION 3.1(f), the bankruptcy or default of any
Non-Anchor Tenant or the termination of any Lease of a Non-Anchor Tenant or New
Lease or the removal of any Non-Anchor Tenant by reason of a default by such
Tenant (by summary proceedings or otherwise) or by operation of the terms of
such Lease or New Lease shall not affect the obligations of Buyer under this
Agreement in any manner or entitle Buyer to a reduction in, or credit or
allowance against, the Purchase Price or give rise to any other claim on the
part of Buyer.
SECTION 7.7 TENANT NOTICES. At the Closing, Seller shall furnish Buyer with
a signed notice to be given to each Tenant. Such notice shall disclose that the
Property has been sold to Buyer and that, after the Closing, all rents should be
paid to Buyer.
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SECTION 7.8 RISK OF LOSS AND INSURANCE PROCEEDS. Buyer shall be bound to
purchase the Property for the full Purchase Price as required by the terms
hereof, without regard to the occurrence or effect of any damage to the related
Real Property or destruction of any improvements thereon or condemnation of any
portion of the Property, PROVIDED THAT upon the Closing, there shall be a credit
against the Purchase Price due hereunder equal to the amount of any insurance
proceeds or condemnation awards collected by Seller as a result of any such
damage or destruction or condemnation, plus the amount of any insurance
deductible or any uninsured amount or retention, less any sums reasonably
expended by Seller prior to the Closing for the restoration or repair of the
Property or in collecting such insurance proceeds or condemnation awards. Seller
shall provide Buyer with a certificate of insurance for Seller's property
insurance policy so that Buyer can confirm its satisfaction with such policy.
Seller agrees that it will maintain such policy in full force and effect until
the Closing. If the proceeds or awards have not been collected as of the
Closing, then such proceeds or awards shall be assigned to Buyer, except to the
extent needed to reimburse Seller for sums it reasonably expended prior to the
Closing for the restoration or repair of the Property or in collecting such
insurance proceeds or condemnation awards. Notwithstanding the foregoing, (i)
Seller shall not settle, compromise or otherwise stipulate any award or recovery
in connection with any damage, destruction or condemnation, in each case if such
damage, destruction or condemnation impairs the value of the Property by at
least One Hundred Thousand and No/100 Dollars ($100,000.00) and occurs after the
expiration of the Due Diligence Period, without the prior written approval of
Buyer, which approval shall not be unreasonably withheld, (ii) following the
expiration of the Due Diligence Period, Buyer shall have the right to
participate in any such settlement or other proceedings, and (iii) if the amount
of the damage or destruction as described in this SECTION 7.7 exceeds Two
Hundred Fifty Thousand and No/100 Dollars ($250,000), then Buyer may, at its
option to be exercised within five (5) Business Days of Seller's written notice
of the occurrence of the damage or destruction, either terminate this Agreement
or consummate the purchase for the full Purchase Price as required by the terms
hereof. If Buyer elects to terminate this Agreement, then the Deposit shall be
immediately returned to Buyer and neither party shall have any further rights or
obligations hereunder except to the extent set forth in SECTIONS 4.6(a), 6.1,
9.4 and 9.10(a). If Buyer elects to proceed with the purchase, then upon the
Closing, Buyer shall be entitled to a credit against the Purchase Price and
shall receive an assignment of any uncollected proceeds or awards, all as set
forth in this SECTION 7.8 above. The provisions of this SECTION 7.8 shall
survive the Closing.
SECTION 7.9 NOTIFICATIONS. Between the Effective Date and the Closing,
Seller shall promptly notify Buyer of any condemnation, environmental, zoning or
other land-use regulation proceedings relating to the Property of which Seller
obtains knowledge, any notices of violations of any legal requirements relating
to the Property received by Seller, any litigation of which Seller obtains
knowledge that arises out of the ownership of the Property unless covered by
insurance usual, reasonable and customary for such risks (subject to customary
deductibles), and any other matters that would materially affect Seller's
representations and warranties hereunder.
27
ARTICLE VIII
CLOSING AND ESCROW
SECTION 8.1 ESCROW INSTRUCTIONS. Upon execution of this Agreement, the
parties hereto shall deposit an executed counterpart of this Agreement with the
Escrow Agent, and this instrument shall serve as the instructions to the Escrow
Agent as the escrow holder for consummation of the purchase and sale
contemplated hereby. Seller and Buyer agree to execute such reasonable
additional and supplementary escrow instructions as may be appropriate to enable
the Escrow Agent to comply with the terms of this Agreement; PROVIDED, HOWEVER,
that in the event of any conflict between the provisions of this Agreement and
any supplementary escrow instructions, the terms of this Agreement shall
control, unless a contrary intent is expressly indicated in such supplementary
instructions.
SECTION 8.2 CLOSING. The Closing hereunder shall be held and delivery of
all items to be made at the Closing under the terms of this Agreement shall be
made at the local office of the Title Company at 10:00 A.M. (Eastern Time) on a
date designated by Buyer in writing, not later than five (5) business days after
the expiration of the Inspection Period (the "CLOSING DATE"), with time being of
the essence. Except as otherwise permitted under this Agreement, such date and
time may not be extended without the prior written approval of both Seller and
Buyer.
SECTION 8.3 DEPOSIT OF DOCUMENTS.
(a) At or before the Closing, Seller shall deposit into escrow the
following items:
(i) a duly executed and acknowledged Special Warranty Deed in
the form attached hereto as EXHIBIT A (the "DEED");
(ii) a duly executed ▇▇▇▇ of Sale for the Property in the form
attached hereto as EXHIBIT B (the "▇▇▇▇ OF SALE");
(iii) a duly executed counterpart of an Assignment and
Assumption of Leases for the Property in the form attached hereto as
EXHIBIT C (the "ASSIGNMENT OF LEASES");
(iv) a duly executed counterpart of an Assignment and
Assumption of Contracts, Warranties and Guaranties and Other Intangible
Property for the Property in the form attached hereto as EXHIBIT D (the
"ASSIGNMENT OF CONTRACTS");
(v) a duly executed counterpart of such disclosures and
reports (including withholding certificates) as are required by applicable
state and local law in connection with the conveyance of the Property;
(vi) Seller's affidavit to the Title Company, in the form of
EXHIBIT E attached hereto (the "SELLER'S AFFIDAVIT"); and
28
(vii) an affidavit pursuant to Section 1445(b)(2) of the Code,
and on which Buyer is entitled to rely, that Seller is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Code; and
(viii) a Reciprocal Easement Agreement in form and content
acceptable to the Seller and Buyer with respect to the Seller Retained Land
which is to be finalized during the Due Diligence Period (the "RETAINED
PARCEL REA");
(b) At or before Closing, Buyer shall deposit into escrow the
following items:
(i) the Purchase Price;
(ii) a duly executed counterpart of the Assignment of Leases;
(iii) a duly executed counterpart of the Assignment of
Contracts; and
(iv) a duly executed counterpart of the Retained Parcel REA;
and
(v) a duly executed counterpart of such disclosures and reports as
are required by applicable state and local law in connection with the
conveyance of the Property.
(c) Buyer and Seller shall endeavor in good faith to agree on the
final, execution form of all of the documents referred to above on or before the
last day of the Due Diligence Period. Buyer and Seller shall each deposit such
other instruments as are reasonably required by the Title Company or otherwise
required to close the escrow and consummate the purchase and sale of the
Property in accordance with the terms hereof; PROVIDED, that Seller shall not be
required to provide any indemnities or affidavits or to escrow any funds other
than Seller's Affidavit.
(d) Seller shall deliver to Buyer originals of the Leases (or, if
originals are not available, copies), copies of the tenant correspondence files
of the Real Property in Seller's possession, a set of keys to the Real Property
and originals (or copies, if originals are not available) of any other items in
Seller's possession relating to the use, ownership, operation, maintenance,
leasing, repair, alteration, management or development of the Real Property, all
within five (5) Business Days after the Closing Date. Following the Closing,
Buyer shall make all Leases, Contracts, other documents, books, records and any
other materials in its possession, to the extent the same relate to the period
of Seller's ownership of the Property, available to Seller or its
representatives for inspection and/or copying at reasonable times and upon
reasonable notice.
SECTION 8.4 ESTOPPEL CERTIFICATES.
(a) Seller shall use its reasonable efforts (without incurring any
additional expense) to obtain and deliver to Buyer not later than five (5) days
prior to the Closing Date tenant estoppel certificates, in substantially the
form attached hereto as EXHIBIT F, from (a) each of the Anchor Tenants, and (b)
eighty percent (80%) of the square footage leased by Non-Anchor Tenants.
Notwithstanding anything contained herein to the contrary, if a form of estoppel
certificate is
29
attached to or otherwise prescribed in a particular lease document or if it is
the policy of any Tenant that a particular form of estoppel certificate be used,
that form (the "PRESCRIBED FORM") shall be deemed to be acceptable to Buyer.
Each tenant estoppel certificate shall bear an effective date not earlier than a
date within thirty (30) days preceding the Closing Date. In the event that an
estoppel certificate is not obtained from any Tenant, Seller shall provide a
certificate to Buyer in the form attached hereto as EXHIBIT G. Seller's
representations and warranties in the certificate shall survive the Closing,
PROVIDED THAT (i) Buyer must give Seller a Claim Notice with respect to any
claim it may have against Seller for a breach of any such representation and
warranty and must commence litigation (if any) relating to such Claim Notice by
the times set forth in SECTION 4.3(b) (and any claim that Buyer may have that is
not so asserted, or litigation by Buyer that is not so commenced, shall not be
valid or effective and Seller shall have no liability whatsoever with respect
thereto), and (ii) any certificate delivered by Seller pursuant to this SECTION
8.4 shall cease to survive the Closing to the extent specifically confirmed by a
tenant estoppel certificate delivered by a Tenant.
(b) Seller shall use its reasonable efforts (without incurring any
additional expense) to obtain and deliver to Buyer not later than five (5) days
prior to the Closing Date an estoppel certificate (an "REA Estoppel
Certificate") from each party to any reciprocal easement agreement, declaration
of covenants, operating agreement or similar agreement ("REA") affecting the
Property indicating that the REA is in full force and effect, and to the best of
such party's knowledge, neither Seller nor any other party to such REA is in
default of its obligations thereunder.
SECTION 8.5 PRORATIONS.
The following shall be adjusted between Seller and Buyer and shall be
prorated as of 12:01 A.M. (Eastern Time) on the Closing Date with Buyer deemed
the owner of the Property on the entire Closing Date:
(a) Rents, common area charges, escalations and other tenant
reimbursements (other than security deposits and real property taxes
reimburseable by tenants on any annual basis) payable under the Existing Leases
and New Leases (collectively, the "RENTS") for the Property or portions thereof
shall be prorated as of the Closing Date on an accrual basis. If any Rents are
delinquent as of the Closing Date (hereinafter called the "DELINQUENT RENTS"),
then all Rents collected by Purchaser after the Closing shall be applied first
to current Rents and then to Delinquent Rents, provided further that any
Delinquent Rents paid by Tenants therefor and specifically identified as such by
the Tenant shall be treated as a reimbursement of such charges regardless of the
order of priority otherwise set forth in this SECTION 8.5(a). Buyer shall use
reasonable efforts until December 31, 2004 to collect any Delinquent Rents,
including any unpaid amounts previously billed for common area maintenance
charges, Real Estate Taxes and insurance for the year ending December 31, 2003
(the "2003 RECONCILIATION PAYMENTS") that accrued prior to the Closing Date.
Seller agrees to forward any Rents received by it after the Closing Date to
Buyer for application in accordance with the provisions hereof. The amount of
any security deposits that are required to be returned to Tenants under Leases
shall be credited against the Purchase Price (and Seller shall be entitled to
retain such security deposits). Seller may not pursue litigation against any
tenant for Delinquent Rents or 2003 Reconciliation Payments.
30
(b) Real Estate Taxes for the then current year relating to the
Property shall be prorated as of the Closing Date. If the Closing shall occur
before the tax rate is fixed for the then current year, the apportionment of
taxes shall be made on the basis of the tax rate for the immediately preceding
year applied to the latest assessed valuation of the Property, provided that, if
the taxes actually due for the current year are more or less than the taxes for
the preceding year, then within thirty (30) days after the issuance of the then
current year's tax ▇▇▇▇, Seller and Buyer shall adjust the proration of such
taxes and Seller or Buyer, as the case may be, shall pay to the other any amount
required as a result of such adjustment; this covenant shall not merge with the
Deed delivered hereunder but shall survive the Closing. All special taxes or
assessments assessed prior to the Closing Date shall be paid by Seller, and
those assessed after the Closing Date shall be paid by Buyer. Tax reimbursements
from Tenants shall, upon receipt, be equitably prorated and reimbursed to
Seller. Buyer shall make reasonable efforts to promptly collect all tax
reimbursements from the Tenants.
(c) All other income from, and expenses of, the Property,
including but not limited to public utility charges, interest, maintenance
charges and service charges, shall be prorated as of the Closing Date, except as
set forth hereinbelow. To the extent that information for any such proration is
not available at the Closing, the parties shall effect such proration within
ninety (90) days after Closing. If, however, the proration of percentage rental
from any Tenant or any other item of income or expense cannot be made within
ninety (90) days after the Closing, then the proration of such item for each
such Tenant shall be made within ten (10) days after the information relating to
such item becomes available. Percentage rents for each Tenant Lease shall be
prorated on the basis of the number of days lapsed during the Tenant's
percentage rent period as of the Closing Date and not on the basis of the amount
of the Tenant's sales which accrued during such percentage rent period as of the
Closing Date.
Within ninety (90) days after the Closing Date, Seller agrees to
provide Buyer (i) a detailed operating expense statement for the actual costs
incurred by Seller for operating expenses and other pass-through items that are
reimbursable to Seller, as landlord, by Tenants under the Leases (collectively,
the "REIMBURSEMENT EXPENSES") that covers the period from the beginning of the
then current billing/reconciliation period for such party through the Closing
Date together with copies of supporting invoices and other documentation
supporting the expenses; and (ii) a statement showing amounts actually collected
by Seller as estimated payments or otherwise from the Tenants for the
Reimbursement Expenses that covers the period from the beginning of the then
current tenant billing/reconciliation period through the Closing Date. Buyer and
Seller agree that they will promptly, at the end of the calendar year of the
year in which the Closing occurs (or, if the current billing/reconciliation
period ends on other than the end of the calendar year, the end of the current
applicable billing/reconciliation period), reconcile the Tenants' payments of
the Reimbursement Expenses, and Buyer will ▇▇▇▇ the Tenants promptly for any
amounts owed by the Tenants to landlord for payment of the Reimbursement
Expenses. In reconciling the Tenants' payments of the Reimbursement Expenses,
Buyer and Seller agree to reallocate between them the total amount actually
collected by Buyer and Seller for the Reimbursements Expenses for the calendar
year (or other applicable billing/reconciliation period corresponding to the
applicable period for reconciling the Reimbursement Expenses under the Leases)
in which the Closing occurs based on the proportion that the actual costs
incurred by each party for the Reimbursement Expenses bears to the total of the
31
Reimbursement Expenses incurred by the parties combined. To the extent either
party has collected more than its share of the Tenants' payment for the
Reimbursement Expenses as determined by the preceding sentence, such party shall
promptly remit such excess amount to the other party; PROVIDED, to the extent
the Tenants are due a refund for overpayment of the Reimbursement Expenses
attributable to any such excess amount, Buyer may retain such excess amount for
the purpose of reimbursing amounts due to Tenants in reconciling the such
party's payment of the Reimbursement Expenses. After making the adjustments
provided by the previous two sentences, Buyer will promptly remit Seller's pro
rata share of any additional amounts actually collected from the Tenants as the
result of reconciliation billing to the Tenants for the Reimbursement Expenses
due landlord. In the event any amounts are owing to the Tenants, Buyer will
notify Seller of its pro rata share of such amounts, with appropriate back-up,
and Seller will promptly within thirty (30) days after receipt remit its share
of such amounts to Buyer who will then reimburse the Tenants for any amounts
owed by landlord. In reconciling the Tenants' payments and determining the pro
rate share due to or from Seller, the total amount owing to the Tenants or the
total amount collected from the Tenants, shall be multiplied by a fraction the
numerator of which shall be the actual expenses incurred by Seller for the
Reimbursement Expenses for the applicable billing/reconciliation period and the
denominator of which will be the total of the Reimbursement Expenses incurred by
both Buyer and Seller combined for the applicable tenant billing/reconciliation
period for such expenses.
(d) Seller shall calculate the prorations contemplated by this
SECTION 8.5 for Closing for Buyer's review and approval. Buyer and its
representatives and auditors shall be afforded the opportunity to review all
underlying financial records and work papers pertaining to the preparation of
Seller's proration statements, and Seller will provide Buyer such backup
information as is reasonably requested to verify Seller's proposed prorations.
(e) At the Closing, Buyer shall pay the deed and/or other
recordation fees and the cost of obtaining a Phase One or other environmental
audit/engineering reports. Seller shall pay the documentary stamp tax on the
transfer, deed stamp or other similar taxes or fees, the premium for the
issuance by the Title Company of the Title Policy (except that the cost of any
endorsements requested by Buyer's lender, shall be at Buyer's sole cost and
expense) and all title search, underwriting, and other related fees and expenses
charged by the Title Company and the cost of obtaining the Survey.
(f) Notwithstanding anything to the contrary herein, to the extent
set forth in SECTION 8.6, Seller reserves the right to protest any Real Estate
Taxes relating to the period prior to the Closing Date and to receive and retain
any refunds on account of such Real Estate Taxes.
(g) The obligations of Seller and Buyer under this SECTION 8.5
shall survive for one (1) year from the Closing Date.
SECTION 8.6 TAX CERTIORARI PROCEEDINGS. Seller is hereby authorized, but
not obligated, to (a) commence (prior to the Closing Date) or continue (after
the Effective Date and after the Closing Date) any proceeding for the reduction
of the assessed valuation of the Property for any tax year which, in accordance
with the laws and regulations applicable to the Property, requires that, to
preserve the right to bring a tax certiorari proceeding with respect to such tax
year, such proceeding
32
be commenced prior to the Closing Date and (b) endeavor to settle any such
proceeding in Seller's discretion. After the Closing, with respect to the
Property, (i) Seller shall retain all rights (subject to any rights of Tenants
under their Leases) with respect to any tax year ending prior to the tax year
(and all refunds relating thereto) in which the Closing Date occurs, and shall
have the sole right to participate in and settle any proceeding relating thereto
(PROVIDED, that such settlement does not affect the assessed tax value for any
subsequent tax year), and (ii) Buyer shall have all rights (subject to any
rights of Tenants under their Leases) with respect to any tax year (and all
refunds relating thereto) which ends after the Closing Date; PROVIDED, HOWEVER,
that if the proceeding is for a tax year in which the Closing Date occurs, such
settlement shall not be made without Buyer's prior consent, which consent shall
not be unreasonably withheld or delayed. With respect to any such proceeding for
a tax year in which the Closing Date occurs (whether commenced by Seller or
Buyer), any refund or credit of taxes for such tax year shall be applied first
to the unreimbursed out-of-pocket expenses, including reasonable attorneys'
fees, necessarily incurred in obtaining such refund or credit, and second, to
any Tenant entitled to same, and the balance shall be apportioned between Seller
and Buyer as of the Closing Date in accordance with the proportion of the
applicable tax year occurring before and after the Closing Date. In each case,
the party which prosecuted the proceeding shall deliver to the other copies of
receipted tax bills and any decision or settlement agreement evidencing the
reduction in taxes. If any refund shall be received by Seller which is for the
account of Buyer as provided in this SECTION 8.6, then Seller shall hold Buyer's
share thereof in trust for Buyer and, promptly upon receipt thereof, pay such
share to Buyer or any other party entitled to the same as provided above. If any
refund shall be received by Buyer which is for the account of Seller as provided
in this SECTION 8.6, then Buyer shall hold Seller's share thereof in trust for
Seller and, promptly upon receipt thereof, pay such share to Seller or any other
party entitled to the same as provided above. Each party shall execute any and
all consents or other documents as may be reasonably necessary to be executed by
such party so as to permit the other party to commence or continue any tax
certiorari proceeding which such other party is authorized to commence or
continue pursuant to the terms of this SECTION 8.6, or to collect any refund or
credit with respect to any such tax proceeding. The provisions of this SECTION
8.6 shall survive the Closing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES. Any notices required or permitted to be given
hereunder shall be given in writing and shall be delivered (a) in person, (b) by
certified mail, postage prepaid, return receipt requested, (c) by a commercial
overnight courier that guarantees next day delivery and provides a receipt or
(d) by legible facsimile (followed by hard copy delivered in accordance with the
preceding subsections (a)-(c)), and such notices shall be addressed as follows:
To Buyer: Inland Real Estate Acquisitions, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
33
with a copy to: The Inland Real Estate Group, Inc.
Law Department
Attn: ▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: 630/218-8000 ext. 2854
Fax: 630/▇▇▇-▇▇▇▇
To Seller: AIG ▇▇▇▇▇ MRP, L.L.C.
c/o AIG ▇▇▇▇▇ Shopping Center Properties, L.L.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
with copies to: AIG ▇▇▇▇▇ Shopping Center Properties, L.L.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
and AIG Global Real Estate Investment Corp.
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
and ▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party may from time to time specify in
writing to the other party. Any notice shall be effective only upon receipt (or
refusal by the intended recipient to accept delivery).
34
SECTION 9.2 ENTIRE AGREEMENT. This Agreement, together with the Exhibits
and Schedules hereto, contains all representations, warranties and covenants
made by Buyer and Seller and constitutes the entire understanding between the
parties hereto with respect to the subject matter hereof. Any correspondence,
memoranda or agreements between the parties, including, without limitation, any
oral or written statements made by Seller, its Affiliates, employees or agents,
are not binding on or enforceable against any party, and are superseded and
replaced in total by this Agreement together with the Exhibits and Schedules
hereto.
SECTION 9.3 TIME. Time is of the essence in the performance of each of the
parties' respective obligations contained herein.
SECTION 9.4 ATTORNEYS' FEES. If either party hereto fails to perform any of
its obligations under this Agreement or if any dispute arises between the
parties hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
(including costs of any trial or appeal therefrom) and reasonable attorneys'
fees and disbursements.
SECTION 9.5 NO MERGER. The obligations contained herein, the performance of
which is contemplated after the Closing, shall not merge with the transfer of
title to the Property but shall remain in effect until fulfilled.
SECTION 9.6 ASSIGNMENT. Buyer's rights and obligations hereunder shall not
be assignable, directly or indirectly, without the prior written consent of
Seller; PROVIDED, THAT Buyer may, by written notice delivered to Seller not less
than five (5) Business Days prior to the Closing, assign its rights under this
Agreement any entity sponsored by Inland Retail Real Estate Trust, Inc., Inc.,
Inland Western Retail Real Estate Trust, Inc., or to any Affiliate of the Inland
Group, Inc. (a "PERMITTED ASSIGNEE") and Seller shall convey the Property at
Closing (on behalf of Buyer) in accordance with such written instructions.
Nothing contained in the preceding sentence shall be deemed to diminish or
otherwise affect the obligations of Buyer hereunder, including the obligations
to pay the Purchase Price at Closing and to indemnify Seller and the other
Seller Parties in accordance with the terms hereof. Subject to the limitations
described herein, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
SECTION 9.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
SECTION 9.8 GOVERNING LAW; JURISDICTION AND VENUE.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA.
35
(b) For the purposes of any suit, action or proceeding involving
this Agreement, Buyer and Seller hereby expressly submit to the jurisdiction of
all federal and state courts sitting in the State of
Florida and consent that
any order, process, notice of motion or other application to or by any such
court or a judge thereof may be served within or without such court's
jurisdiction by registered mail or by personal service, provided that a
reasonable time for appearance is allowed, and Buyer and Seller agree that such
courts shall have the exclusive jurisdiction over any such suit, action or
proceeding commenced by any party. In furtherance of such agreement, Buyer and
Seller agree upon the request of the other to discontinue (or agree to the
discontinuance of) any such suit, action or proceeding pending in any other
jurisdiction.
(c) Buyer and Seller hereby irrevocably waive any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any federal
or state court sitting in the State of
Florida and hereby further irrevocably
waive any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 9.9 WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY WAIVES, IRREVOCABLY
AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE
OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN
CONNECTION HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR
OTHER ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.
SECTION 9.10 CONFIDENTIALITY AND RETURN OF DOCUMENTS.
(a) As a condition to Seller's agreement to furnish and/or
disclose Evaluation Material (as defined below) to Buyer, any Permitted
Assignee(s) and their Affiliates and representatives for review and inspection,
Buyer (on behalf of itself, any Permitted Assignee(s), and their respective
Affiliates and representatives) hereby agrees to be bound by the terms set forth
in this Section 9.10(a).
(i) "EVALUATION MATERIAL" shall include all documents, and
other written or oral information, as well as diskettes and other forms of
electronically transmitted data, furnished to Buyer, a Permitted Assignee, or
their respective officers, directors, employees, agents, advisors, Affiliates or
representatives (collectively, "REPRESENTATIVES") by Seller or its Affiliates
relating to the Property, as well as written memoranda, notes, analyses,
reports, compilations, or studies prepared by Buyer or its Representatives (in
whatever form of medium) that contain, or are derived from, such information
provided by Seller. Notwithstanding the foregoing, information provided by
Seller shall not constitute "Evaluation Material" if such information (i) is or
becomes generally available to the public other than as a result of a disclosure
by or through Buyer or its Representatives in contravention of this SECTION
9.10(a) or (ii) is or becomes available to Buyer from a source (other than
Seller) not bound, to the knowledge of Buyer, by any legal or contractual
obligation prohibiting the disclosure of Evaluation Material by such source to
Buyer.
36
(ii) Buyer agrees that it and its Representatives will use
the Evaluation Material exclusively for the purpose of evaluating the merits of
a possible purchase of the Property as contemplated by this Agreement and not
for any other purpose whatsoever. Buyer (on behalf of itself and its
Representatives) further agrees that it will not disclose any Evaluation
Material or use it to the detriment of Seller or its Affiliates; PROVIDED,
HOWEVER, that Buyer may without liability disclose Evaluation Material (x) to
any Representative of Buyer who needs to know such Evaluation Material for the
purpose of evaluating the transactions described in this Agreement involving
Seller and the Property and Buyer or its Permitted Assignee(s) (it being
understood and agreed that Buyer shall be fully responsible for any disclosures
by any such Person) and (y) pursuant to administrative order or as otherwise
required by law.
(iii) In the event that Buyer desires to disclose Evaluation
Material under the circumstances contemplated by clause (y) of the preceding
paragraph, Buyer will (x) provide Seller with prompt notice thereof, (y) consult
with Seller on the advisability of taking steps to resist or narrow such
disclosure, and (z) cooperate with Seller (at Seller's cost) in any attempt that
Seller may make to obtain an order or other reliable assurance that confidential
treatment will be accorded to designated portions of the Evaluation Material.
(iv) Buyer agrees that, in the event this Agreement is
terminated prior to the consummation of the purchase and sale contemplated
hereunder, all written Evaluation Material and all copies thereof will be
promptly returned to Seller. All analysis, compilations, studies or other
documents prepared by or for Buyer and reflecting Evaluation Material or
otherwise based thereon will be (at Buyer's option) either (x) destroyed or (y)
retained by Buyer in accordance with the confidentiality restrictions set forth
in this SECTION 9.10(a).
(v) Buyer acknowledges that significant portions of the
Evaluation Material are proprietary in nature and that Seller and its Affiliates
would suffer significant and irreparable harm in the event of the misuse or
disclosure of the Evaluation Material. Without affecting any other rights or
remedies that either party may have, Buyer acknowledges and agrees that Seller
shall be entitled to seek the remedies of injunction, specific performance and
other equitable relief for any breach, threatened breach or anticipatory breach
of the provisions of this agreement by Buyer or its Representatives.
(vi) Buyer agrees to indemnify and hold harmless Seller from
and against all loss, liability, claim, damage and expense arising out of any
breach of this Section 9.10(a) by Buyer or any of its Representatives.
(vii) This SECTION 9.10(a) shall survive, if the Closing does
not occur, any termination of this Agreement, but shall terminate upon the
Closing.
(b) Seller and Buyer hereby covenant that prior to the Closing it
shall not issue any press release or public statement (a "RELEASE") with respect
to the transactions contemplated by this Agreement without the prior consent of
all parties to this Agreement, except to the extent required by law or the
regulations of the Securities and Exchange Commission. If Buyer is required by
law to issue a Release prior to the Closing Date, Buyer shall, at least five (5)
Business Days prior
37
to the issuance of the same, deliver a copy of the proposed Release to Seller
for its review and approval.
SECTION 9.11 INTERPRETATION OF AGREEMENT. The article, section and other
headings of this Agreement are for convenience of reference only and shall not
be construed to affect the meaning of any provision contained herein. Where the
context so requires, the use of the singular shall include the plural and vice
versa and the use of the masculine shall include the feminine and the neuter.
SECTION 9.12 AMENDMENTS. This Agreement may be amended or modified only by
a written instrument signed by both Buyer and Seller.
SECTION 9.13 NO RECORDING. Neither this Agreement nor any memorandum or
short form thereof may be recorded by Buyer.
SECTION 9.14 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement
are not intended to benefit any third parties.
SECTION 9.15 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
SECTION 9.16 DRAFTS NOT AN OFFER TO ENTER INTO A LEGALLY BINDING CONTRACT.
The parties hereto agree that the submission of a draft of this Agreement by one
party to another is not intended by either party to be an offer to enter into a
legally binding contract with respect to the purchase and sale of the Property.
The parties shall be legally bound with respect to the purchase and sale of the
Property pursuant to the terms of this Agreement only if and when the parties
have been able to negotiate all of the terms and provisions of this Agreement in
a manner acceptable to each of the parties in their respective sole discretion,
including, without limitation, all of the Exhibits and Schedules hereto, and
each of Seller and Buyer have fully executed and delivered to each other a
counterpart of this Agreement, including, without limitation, all Exhibits and
Schedules hereto.
SECTION 9.17 FURTHER ASSURANCES. Each party shall, whenever and as often as
it shall be requested to do so by the other party, execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, any and all such
other documents and do any and all other acts as may be necessary to carry out
the intent and purpose of this Agreement.
SECTION 9.18 SIGNATURES. Signatures to this Agreement transmitted by
telecopy shall be valid and effective to bind the party so signing. Each party
agrees to promptly deliver an execution original to this Agreement with its
actual signature to the other party, but a failure to do so shall not affect the
enforceability of this Agreement, it being expressly agreed that each party to
this Agreement shall be bound by its own telecopied signature and shall accept
the telecopied signature of the other party to this Agreement.
38
SECTION 9.19 LIKE-KIND EXCHANGE. Seller and Buyer may both utilize the
provisions of 28 U.S.C. Section 1031 to effect a like-kind exchange. Both Seller
and Buyer agree to execute any necessary documents that will effect such a
transaction by the requesting party, or that facilitate such an exchange, and
take such action including the appropriate escrow of proceeds, and to otherwise
conduct this transaction so that either party can receive the benefits of such
provisions, if so elected; provided however that the non-requesting party shall
not bear any additional expense in the transaction due to such accommodation,
nor shall the terms herein otherwise be affected.
IN WITNESS WHEREOF, Buyer has executed this Agreement as of the date
first written above.
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.
an Illinois corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: Senior Vice President
------------------------------
(SIGNATURES CONTINUED ON THE NEXT PAGE)
39
IN WITNESS WHEREOF, Seller has executed this Agreement as of the date first
written above.
SELLER:
AIG ▇▇▇▇▇ MRP, L.L.C.,
a Delaware limited liability company
By: AIG ▇▇▇▇▇ SHOPPING CENTER
PROPERTIES, L.L.C.,
a Delaware limited liability company,
its sole member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇,
President
40
EXHIBIT A
RECORDING REQUESTED BY SEND TAX NOTICES TO:
AND WHEN RECORDED MAIL TO:
HOBBY & HOBBY, P.A. Inland Real Estate Acquisitions, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ _____________________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ _____________________________________
STATE OF
FLORIDA )
COUNTY OF PASCO )
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS, that for and in consideration of the sum of
TEN DOLLARS ($10.00) in hand paid to AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware limited
liability company (the "GRANTOR"), whose address is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ by INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation (the "GRANTEE"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the receipt whereof is hereby acknowledged, the Grantor has
granted, bargained, sold, and conveyed, and by these presents does hereby grant,
bargain, sell, and convey unto Grantee and its successors and assigns forever,
all those pieces, parcels, or tracts of real estate more fully described in
EXHIBIT A attached hereto (the "REAL ESTATE"), together with all and singular
rights, privileges, hereditaments, and appurtenances to the Real Estate
belonging or in any wise incident or appertaining thereto (collectively, the
"PREMISES").
The Premises are being conveyed subject to the lien of the current and
subsequent years taxes, the easements and other title exceptions set forth in
EXHIBIT B attached hereto (the "PERMITTED ENCUMBRANCES").
TO HAVE AND TO HOLD all and singular the Premises before mentioned unto
Grantee, its successors and assigns, forever.
Grantor hereby covenants and agrees that it will warrant and forever defend
the right and title to the Premises unto the Grantee and its successors and
assigns against the claims of Grantor and all others claiming by, through, or
under Grantor, but not otherwise, subject, however to the Permitted
Encumbrances.
41
IN WITNESS WHEREOF, the undersigned has caused this Deed to be properly
executed on this the _____ day of ________________, 2004.
GRANTOR:
WITNESSES: AIG ▇▇▇▇▇ MRP, L.L.C.
a Delaware limited liability company
--------------------------------
Print Name: BY: AIG ▇▇▇▇▇ SHOPPING CENTER
--------------------- PROPERTIES, L.L.C., a Delaware
limited liability company
its Sole Member
--------------------------------
Print Name: BY:
--------------------- ---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
STATE OF ALABAMA )
:
COUNTY OF SHELBY )
The foregoing conveyance was acknowledged before me this ____ day of
___________, 2004, by ▇▇▇▇ ▇. ▇▇▇▇▇ as President of AIG ▇▇▇▇▇ Shopping Center
Properties, L.L.C., a Delaware limited liability company, as Sole Member of AIG
▇▇▇▇▇ MRP, L.L.C., a Delaware limited liability company. He is personally known
to me or has produced a driver's license as identification.
--------------------------------------
Print Name:
---------------------------
Notary Public
[NOTARY STAMP OR SEAL]
[SEAL]
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PERMITTED EXCEPTIONS
42
EXHIBIT B
▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS, that AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("SELLER"), for and in consideration of Ten and No/100
Dollars ($10.00) and other valuable consideration, to it in hand paid by INLAND
REAL ESTATE ACQUISITIONS, INC., an Illinois corporation ("BUYER"), the receipt
and sufficiency of which are hereby acknowledged, by these presents does bargain
and sell unto Buyer all right, title, and interest of Seller in and to all
fixtures, machinery, equipment, and other tangible personal property of every
kind and description owned by Seller and located on, attached to, or used in
connection with the management, operation, maintenance and repair of the
premises described on EXHIBIT A attached hereto (the "PROPERTY"), but not
including property of any tenant occupying space in the Premises (including
supplemental air conditioning units), moveable personal property, or property of
public utilities.
TO HAVE AND TO HOLD THE SAME, unto Buyer, its successors and assigns
forever.
This ▇▇▇▇ of Sale is made without any warranty or representation, express
or implied, except as expressly set forth in the Purchase Agreement.
IN WITNESS WHEREOF, Seller has set its hand this _____ day of
______________, 2004.
SELLER:
AIG ▇▇▇▇▇ MRP, L.L.C.
a Delaware limited liability company
BY: AIG ▇▇▇▇▇ SHOPPING CENTER
PROPERTIES, L.L.C., a Delaware
limited liability company
its Sole Member
BY:
----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
EXHIBIT A LEGAL DESCRIPTION
1
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "ASSIGNMENT") made as of
the_____day of August, 2004, by and between AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("ASSIGNOR") and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation ("ASSIGNEE").
For Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assignor hereby assigns to Assignee the entire right, title and
interest of Assignor (including the right to collect rent) in, to and under the
leases, license agreements and occupancy agreements affecting the real property
(the "PROPERTY") described in EXHIBIT A attached hereto, including, without
limitation, those leases which are more particularly described on EXHIBIT B
attached hereto (collectively, the "LEASES"). Security deposits under the Leases
and any rental and other payments under the Leases shall be prorated between the
parties as provided in the Agreement of Purchase and Sale by and between
Assignor and Assignee dated as of___________ ____, 2004 (the "PURCHASE
AGREEMENT").
2. Assignee hereby assumes and agrees to perform and observe all of the
terms, covenants, conditions and agreements as landlord under the Leases with
respect to all matters arising or accruing on or after the date hereof, and
Assignee shall indemnify, defend and hold harmless Assignor, its agents and
employees, and their respective direct and indirect partners, members,
shareholders, officers and directors from and against any and all claims,
demands, actions, proceedings, costs and expenses (including, without
limitation, reasonable attorneys' fees, expenses and court costs, if any),
losses, damages, obligations, charges, liabilities, penalties, orders and
judgments which may be imposed upon, incurred by or asserted against Assignor by
reason of any failure by Assignee to perform any of the aforesaid terms,
covenants, conditions and agreements after the date hereof.
3. Assignor shall indemnify, defend and hold harmless Assignee, its
agents and employees, and their respective direct and indirect partners,
members, shareholders, officers and directors from and against any and all
claims, demands, actions, proceedings, costs and expenses (including, without
limitation, reasonable attorneys' fees, expenses and court costs, if any),
losses, damages, obligations, charges, liabilities, penalties, orders and
judgments which may be imposed upon, incurred by or asserted against Assignee by
reason, of any failure by Assignor to perform any of the aforesaid terms,
covenants, conditions and agreements under the Leases prior to the date hereof.
4. This Assignment is made without recourse and without any express or
implied representation or warranty of any kind, except as expressly set forth in
the Purchase Agreement.
5. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
1
6. This Agreement is delivered pursuant to the Purchase Agreement and
Assignee acknowledges and affirms the provisions thereof.
7. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be
duly executed on the day and year first above written:
ASSIGNOR:
WITNESSES: AIG ▇▇▇▇▇ MRP, L.L.C.
a Delaware limited liability company
------------------------------------
Print Name: BY: AIG ▇▇▇▇▇ SHOPPING CENTER
------------------------- PROPERTIES, L.L.C., a Delaware
limited liability company
its Sole Member
------------------------------------
Print Name: BY:
------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
ASSIGNEE:
WITNESSES: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By:
------------------------------------ ------------------------------
Print Name: Name:
------------------------- ------------------------------
Title:
------------------------------
------------------------------------
Print Name:
-------------------------
STATE OF ALABAMA )
:
COUNTY OF SHELBY )
The foregoing Assignment was acknowledged before me this____day of August,
2004, by ▇▇▇▇ ▇. ▇▇▇▇▇ as President of AIG ▇▇▇▇▇ Shopping Center Properties,
L.L.C., a Delaware limited liability company, as Sole Member of AIG ▇▇▇▇▇ MRP,
L.L.C., a Delaware limited liability company. He is personally known to me or
has produced a driver's license as identification.
------------------------------
Print Name:
-------------------
2
Notary Public
[NOTARY STAMP OR SEAL]
[SEAL]
STATE OF____________ )
:
COUNTY OF___________ )
The foregoing Assignment was acknowledged before me this____day of______,
2004, by ____________ as____________of Inland Real Estate Acquisitions, Inc., an
Illinois corporation. He is personally known to me or has produced a driver's
license as identification.
-------------------------------------
Print Name:
--------------------------
Notary Public
[NOTARY STAMP OR SEAL]
[SEAL]
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B LEASES
3
EXHIBIT D
ASSIGNMENT OF CONTRACTS, WARRANTIES AND GUARANTIES
AND OTHER INTANGIBLE PROPERTY
THIS ASSIGNMENT OF CONTRACTS, WARRANTIES AND GUARANTIES AND OTHER
INTANGIBLE PROPERTY (this "ASSIGNMENT"), is made and entered into as of this
_______ day of August, 2004, by and between AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("ASSIGNOR") and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation ("ASSIGNEE").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, effective as of the date hereof, Assignor hereby assigns and
transfers unto Assignee all of its right, title, claim and interest in and
under:
(A) to the extent assignable, all warranties and guaranties made by or
received from any third party with respect to any building, building component,
structure, fixture, machinery, equipment, or material situated on, contained in
any building or other improvement situated on, or comprising a part of any
building or other improvement situated on, any part of that certain real
property described on EXHIBIT A attached hereto (collectively, the
"WARRANTIES");
(B) to the extent assignable, all of the service contracts listed in
EXHIBIT B attached hereto (the "SERVICE CONTRACTS"); and
(C) to the extent assignable, any Intangible Property (as defined in that
certain Agreement of Purchase and Sale by and between Assignor and Assignee
dated ________ ____, 2004 (the "PURCHASE AGREEMENT").
ASSIGNOR AND ASSIGNEE FURTHER HEREBY AGREE AND COVENANT AS FOLLOWS:
1. Assignee hereby accepts and agrees to perform and observe all of the
terms, covenants, conditions and agreements relating to or arising out of the
Service Contracts with respect to all matters arising or accruing on or after
the date hereof, and Assignee shall indemnify, defend and hold harmless
Assignor, its agents and employees, and their respective direct and indirect
partners, members, shareholders, officers and directors from and against any and
all claims, demands, actions, proceedings, costs and expenses (including,
without limitation, reasonable attorneys' fees, expenses and court costs, if
any), losses, damages, obligations, charges, liabilities, penalties, orders and
judgments which may be imposed upon, incurred by or asserted against Assignor by
reason of any failure by Assignee to perform any of the aforesaid terms,
covenants, conditions and agreements after the date hereof.
2. Assignor shall indemnify, defend and hold harmless Assignee, its
agents and employees, and their respective direct and indirect partners,
members, shareholders, officers and directors from and against any and all
claims, demands, actions, proceedings, costs and expenses
4
(including, without limitation, reasonable attorneys' fees, expenses and court
costs, if any), losses, damages, obligations, charges, liabilities, penalties,
orders and judgments which may be imposed upon, incurred by or asserted against
Assignee by reason of any failure by Assignor to perform any of the aforesaid
terms, covenants, conditions and agreements prior to the date hereof.
3. Assignor shall cooperate with Assignee in facilitating the transfer of
any Warranties held by Assignor in favor of Assignee.
4. This Assignment shall be binding on and inure to the benefit of the
parties hereto, and their successors in interest and assigns.
5. This Assignment shall not be construed as a representation or warranty
by Assignor as to the transferability of the Warranties, the Service Contracts
or the Intangible Property (collectively, the "INTERESTS"), and Assignor shall
have no liability to Assignee in the event that any or all of the Interests (a)
are not transferable to Assignee or (b) are canceled or terminated by reason of
this assignment or any acts of Assignee.
6. This Assignment is made without recourse and without any express or
implied representation or warranty of any kind, except as expressly set forth in
the Purchase Agreement.
7. This Assignment is delivered pursuant to the Purchase Agreement and
Assignee expressly acknowledges and affirms the provisions thereof.
8. This Assignment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
WITNESSES: AIG ▇▇▇▇▇ MRP, L.L.C.
a Delaware limited liability company
------------------------------------
Print Name: BY: AIG ▇▇▇▇▇ SHOPPING CENTER
------------------------- PROPERTIES, L.L.C., a Delaware
limited liability company
its Sole Member
------------------------------------
Print Name: BY:
------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President
5
ASSIGNEE:
WITNESSES: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
------------------------------------ By:
Print Name: -------------------------------
------------------------- Name:
-------------------------------
Title:
-------------------------------
------------------------------------
Print Name:
--------------------------
STATE OF ALABAMA )
:
COUNTY OF SHELBY )
The foregoing Assignment was acknowledged before me this ___ day of August,
2004, by ▇▇▇▇ ▇. ▇▇▇▇▇ as President of AIG ▇▇▇▇▇ Shopping Center Properties,
L.L.C., a Delaware limited liability company, as Sole Member of AIG ▇▇▇▇▇ MRP,
L.L.C., a Delaware limited liability company. He is personally known to me or
has produced a driver's license as identification.
-------------------------------------
Print Name:
--------------------------
Notary Public
[NOTARY STAMP OR SEAL]
[SEAL]
STATE OF _________ )
:
COUNTY OF _________)
The foregoing Assignment was acknowledged before me this ___ day of August,
2004, by __________ as __________ of Inland Real Estate Acquisitions, Inc., an
Illinois corporation. He is personally known to me or has produced a driver's
license as identification.
-------------------------------------
Print Name:
--------------------------
Notary Public
[NOTARY STAMP OR SEAL]
[SEAL]
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B LIST OF SERVICE CONTRACTS
6
EXHIBIT E
SELLER'S AFFIDAVIT
STATE OF ALABAMA
COUNTY OF SHELBY
PERSONALLY APPEARED BEFORE ME, the undersigned officer, duly authorized to
administer oaths, the undersigned party (the "DEPONENT"), who being sworn
according to law, deposes and says on oath as follows:
That the Deponent is the President of AIG ▇▇▇▇▇ Shopping Center Properties,
L.L.C., a Delaware limited liability company, the sole member of AIG ▇▇▇▇▇ MRP,
L.L.C., a Delaware limited liability company who is the owner (the "SELLER") of
certain real property (the "PROPERTY") described on EXHIBIT A attached hereto
and incorporated herein by this reference and as such the Deponent has knowledge
of the statements herein.
That the Seller has the right to convey fee simple title to the Property,
that, to the best of the Deponent's knowledge, there are no unpaid or
unsatisfied security deeds, mortgages, claims of lien, special assessments for
sewer, water main or street improvements, or taxes which could constitute a lien
against the Property and that, to the best of the Deponent's knowledge, the
Property is free and clear of any other encumbrances or any security deeds,
mortgages, restrictions, easements, claims of casements, encroachments, ways or
rights of use, whether existing of record or otherwise, that could in any way
affect the title to the Property, or constitute a lien thereon, except for those
matters set forth on EXHIBIT B attached hereto and incorporated herein by
reference.
That, to the best of the Deponent's knowledge, there are no pending suits,
proceedings, judgments, bankruptcies, liens, bonds or executions against the
Seller in Pasco County,
Florida, or in any other county in the State of
Florida,
or in any other jurisdiction affecting the Property.
That no improvements or repairs have been made on the Property by or at the
instance of the Seller during the ninety (90) days immediately preceding this
date, for which the Seller has not paid for such improvements or repairs or will
pay for upon the completion of all work and final inspection by the Seller of
such improvements or repairs.
That the Seller has been in open, notorious, adverse and peaceful
possession of the Property and that the undersigned Deponent knows of no adverse
claim to the Seller's title to the Property.
That there are no tenants in possession of the Property except as set forth
on EXHIBIT C attached hereto.
1
Sworn to and subscribed before me this
_____ day of _______________, 2004.
(SEAL)
---------------------------- ---------------------------------
Notary Public ▇▇▇▇ ▇. ▇▇▇▇▇
(Affix seal and commission expiration)
Dated:
-------------------------------
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PERMITTED EXCEPTIONS
EXHIBIT C LIST OF LEASES
2
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
To: Inland Real Estate Acquisitions, Inc., and its lender, successors, and
assigns
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Retail Lease Agreement (the "LEASE") dated __________, 200___ for Space
______ consisting of _______ square feet (the "PREMISES") at ▇▇▇▇▇▇▇▇ Ranch
Plaza Shopping Center (the "SHOPPING CENTER") located in New Port ▇▇▇▇▇▇,
Florida (the "PROPERTY"), by and between AIG ▇▇▇▇▇ MRP, L.L.C., a Delaware
limited liability company ("LANDLORD"), as the current Landlord,
and ______________ ("TENANT"), as Tenant.
Gentlemen:
Tenant understands that Inland Real Estate Acquisitions, Inc., an Illinois
corporation, or its assignee ("BUYER") and its lender ("LENDER") is reviewing
the possible purchase and finance of the Property from Landlord. In connection
therewith, and with the understanding that Buyer and Lender are relying upon the
agreements and certifications referenced or contained herein, Tenant agrees and
certifies to Buyer, its respective successors and assigns, and to Lender, as
follows:
1. Tenant hereby confirms that the leasable square footage of Tenant's
Premises is equal to _____________ square feet. The Lease constitutes the entire
agreement between Landlord and Tenant with respect to the Premises and the
Property, is in full force and effect and has not been amended, modified or
assigned except as follows: (If none, state "none".)
Except as above provided, there are no other agreements between
Landlord and Tenant with respect to the Premises or the Property.
2. The term of the Lease commenced on ____________, 20___, and will
terminate on ____________, 20____. Tenant has ______ unexercised renewal options
of ______ years each.
3. The rent commencement date under the Lease was ______. The current
monthly amount of Base Rent payable by the Tenant is equal to $_______; and
current ▇▇▇▇▇▇▇▇ for operating expenses, insurance and real estate taxes are
$_________ per month. Base Rent has been paid through ________, 2004, and
additional rent for operating expenses, insurance premiums and real estate taxes
has been paid through ____________, 2004. No rent has been paid more than one
month in advance of its due date, except as indicated below: (If none, state
"none").
4. Landlord is holding a security deposit in the amount of $_________
with respect to the Lease, and Tenant is not entitled to interest accrued
thereon pursuant to the terms of the Lease.
3
5. To the best of Tenant's knowledge, there are no defaults of Landlord
or Tenant under the Lease, and there are no existing circumstances which with
the passage of time, or giving of notice, or both, would give rise to a default
under the Lease.
6. Construction of all improvements required under the Lease and any
other conditions to Tenant's obligations under the Lease, if any, have been
satisfactorily completed by Landlord including the payment for any tenant
improvement work, if any (any payment still to be paid for tenant improvement
work should be indicated below) and Tenant has accepted and is occupying and
operating in the Premises: (If none, state "none").
7. Tenant has no rent concession, charge, lien, claim of set-off,
abatement or defense against rents or other charges due or to become due under
the Lease or otherwise under any of the terms, conditions, and covenants
contained therein, and Tenant is not currently entitled to any concessions,
rebates, allowances or other considerations for free or reduced rent.
8. To Tenant's knowledge, there are no attachments, executions,
assignments for the benefit of creditors, receiverships, conservatorships, or
voluntary or involuntary proceedings in bankruptcy or pursuant to any other laws
for relief or debtors contemplated or filed by Tenant or pending against Tenant.
9. Tenant is currently operating its business in all of the Premises.
Tenant has not subleased all or any portion of the Premises or assigned any of
its rights under the Lease, nor pledged any interest therein, except as follows:
(If none, state "none").
10. Tenant does not have any rights or options to purchase the Property,
or any portion thereof.
11. Except as set forth below, Tenant does not have any options (except as
stated above), rights of first refusal, rights of first offer or similar rights
to other Property space, and such rights, if any, are subject to all
pre-existing rights accorded to other tenants: (If none, state "none").
12. The person whose signature appears below is duly and fully authorized
to execute this Certificate and has knowledge of the facts and statements
recited herein and acknowledges full and proper execution of the Lease.
In Witness Whereof, Tenant has executed and delivered this Certificate
this_______ day of _________, 2004.
TENANT:
By:
-------------------------------------
Its:
-------------------------------------
3
EXHIBIT G
SELLER'S CERTIFICATE
The undersigned is the Landlord under that certain Retail Lease Agreement
dated ______________ entered into between Landlord therein and _____________, as
Tenant therein (the "LEASE"), covering the premises commonly known as Space
_______ (the "PREMISES") located at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ (the "SHOPPING CENTER"), and hereby confirms to Inland Real Estate
Acquisitions, Inc., an Illinois corporation, or its assignee ("BUYER"), and its
lender ("LENDER") the following:
1. That the current Tenant is (Legal Name) _____________, hereinafter
referred to as "Tenant";
2. That to the best of the undersigned's knowledge, no material default
exists under the Lease on the part of either Landlord or Tenant. As used herein,
"material default" shall mean (1) in the case of a default by Landlord, a
default giving rise to a right on the part of Tenant to offset any rent or
terminate the Lease, and (2) in the case of Tenant, a monetary default or a
non-monetary default giving rise to a right on the part of Landlord to terminate
the Lease;
3. That to the best of the undersigned's knowledge, there are no actions,
suits proceedings or claims pending or threatened with respect to or in any
manner affecting the Lease;
4. That to the best of the undersigned's knowledge, Tenant has no defense
to enforcement of the Lease in accordance with its terms, nor any right of
setoff or counterclaim with respect to the obligations thereunder;
5. That to the best of the undersigned's knowledge, and except as set
forth in the Due Diligence Materials, the Lease constitutes the entire Rental
Agreement and remains in full force and effect, unmodified and unchanged;
6. That to the best of the undersigned's knowledge, the rental has not
been paid more than one month in advance, and that the rental being paid is in
accordance with the terms of the Lease and is currently in the amount of $______
per month;
7. That the Lease term is for __________ years and commenced on ________,
and terminates on ______________;
8. That the Lease contains an option to renew for _________ successive
terms of ____ years each;
9. That the current balance of the security deposit under the Lease is
$_________; and
10. That to the best of the undersigned's knowledge, and except to the
extent set forth in the Due Diligence Materials, Tenant has no right of first
refusal to purchase, option to purchase or
4
other rights to purchase all or part of the Premises, or in the event Tenant has
any such rights, Tenant has waived said rights in their entirety.
As used herein, the term "DUE DILIGENCE MATERIALS" shall have the meaning
set forth in that certain Agreement of Purchase and Sale, dated___________,
2004, between Landlord, as Seller, and Buyer.
This Certificate is made with knowledge by the undersigned that reliance is
being made upon this Certificate. The representations of this Seller's
Certificate shall only be valid until an executed estoppel certificate is
obtained from Tenant.
Dated this _______ day of ______, 2004.
LANDLORD:
AIG ▇▇▇▇▇ MRP, L.L.C.,
a Delaware limited liability company
By: AIG ▇▇▇▇▇ Shopping Center
Properties, L.L.C.,
a Delaware limited liability company,
its sole member
By:
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇,
President
5
SCHEDULE 2.1.1
PROPERTY DESCRIPTION
LEGAL DESCRIPTION: ▇▇▇▇▇▇▇▇ RANCH PLAZA (AlG ▇▇▇▇▇)
A parcel of land lying within Sections 23, 24, 25 & 26 of Township 26 South,
Range 16 East, Pasco County,
Florida, being more particularly described as
follows:
Commencing at the Northwest Corner of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; thence N00 DEG. 00'5l"W (BEING THE BASIS OF BEARINGS
FOR THIS DESCRIPTION)along the West line of the Southwest 1/4 of Section 24,
Township 26 South, Range 16 East, for 142.68 feet; thence S89 DEG. 59'09"W, for
50.01 feet to the POINT OF BEGINNING, same also being the point of intersection
with the easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard as shown on Pasco
County right-of-way maps, Project Number 04325-01000219; thence N00 DEG. 01'12"W
along said easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard, for 49.22 feet;
thence leaving said easterly right-of-way line of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
14'17"E, for 16.94 feet; thence N90 DEG. 00'00"E, for 162.14 feet; thence N35
DEG. 30'43"E, for 32.56 feet to a point of curvature of a non-tangent curve;
thence 132.18 feet along the arc of a curve to the right, said curve having a
radius of 273.00 feet, a central angle of 27 DEG.44'30", and a chord of 130.89
feet which bears N05 DEG. 06'19"W; thence N08 DEG. 45'57"E, for 347.13 feet;
thence N40 DEG. 37'02"W, for 30.36 feet; thence S90 DEG. 00'00"W, for 124.85
feet; thence S66 DEG. 00'48"W, for 22.27 feet to the point of intersection with
said easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard as shown on Pasco County
right-of-way maps, Project Number 04325-01000219; thence N08 DEG. 59'06"E along
said easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard, for 25.31 feet to a point
of curvature of a non-tangent curve; thence continue along said easterly
right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard, 29.08 feet along the arc of a curve to
the left, said curve having a radius of 1,233.00 feet, a central angle of 01
DEG. 21'05", and a chord of 29.08 feet which bears N08 DEG. 18'46"E; thence
leaving said easterly right-of-way line of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇. 19'41"E,
for 13.78 feet; thence N90 DEG. 00'00"E, for 138.89 feet; thence N45 DEG.
18'59"E, for 24.11 feet; thence N08 DEG. 45'57"E, for 151.25 feet to a point of
curvature; thence 138.94 feet along the arc of a curve to the right, said curve
having a radius of 98.00 feet, a central angle of 81 DEG. 14'03", and a chord of
127.60 feet which bears N49 DEG. 22'59"E; thence N90 DEG. 00'00"E, for 363.74
feet; thence N45 DEG. 00'00"E, for 28.28 feet; thence N00 DEG. 00'00"E, for
165.86 feet; thence N07 DEG. 33'51"W, for 11.83 feet to the point of
intersection with the southerly right-of-way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇ (▇▇▇▇▇▇▇▇
▇▇▇▇) as shown on the right-of-way map, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ #▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, dated July 7, 1994; thence S89 DEG. 32'49"E
along said southerly right-of-way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇), for
9.08 feet; thence continue along said southerly right-of-way line of ▇▇▇▇▇ ▇▇▇▇
▇▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇), ▇▇▇ DEG. 02'45"E, for 38.00 feet; thence leaving said
southerly right-of-way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇ (▇▇▇▇▇▇▇▇ ▇▇▇▇), ▇▇▇ ▇▇▇. 28'01"W,
for 17.88 feet; thence S00 DEG. 00'00"E, for 168.52 feet; thence S45 DEG.
00'00"E, for 28.28 feet; thence N90 DEG. 00'00"E, for 238.00 feet; thence N45
DEG. 00'00"E, for 21.21 feet; thence N00 DEG. 00'00"E, for 182.08 feet; thence
N19 DEG. 05'12"W, for 18.31 feet to a point of curvature of a non-tangent curve,
same also being a point of intersection with the proposed southerly right-of-way
line of ▇▇▇▇▇ ▇▇▇▇ ▇▇; thence 61.99 feet along the arc of a curve to the right,
same also being said proposed southerly right-of-way line of State Road 54, said
curve having a radius of
1
29027.11 feet, a central angle of 0 DEG. 07'20" and a chord of 61.99 feet which
bears N89 DEG. 47'45"E; thence leaving said proposed southerly right-of-way line
of ▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇. 00'00"E, for 169.61 feet to a point of curvature;
thence 47.12 feet along the arc of a curve to the left, said curve having a
central angle of 90 DEG. 00'00", a radius of 30.00 feet and a chord of 42.43
feet which bears S45 DEG. 00'00"E; thence S90 DEG. 00'00"E, for 8.13 feet;
thence S00 DEG. 00'00"W, for 266.00 feet to a point of curvature; thence 149.23
feet along the arc of a curve to the right, said curve having a radius of 95.00
feet, a central angle of 90 DEG. 00'00" and a chord of 134.35 feet which bears
S45 DEG. 00'00"W; thence N90 DEG. 00'00"W, for 128.83 feet to a point of
curvature; thence 125.66 feet along the arc of a curve to the left, said curve
having a radius of 80.00 feet, a central angle of 90 DEG. 00'00" and a chord of
113.14 feet which bears S45 DEG. 00'00"W thence S00 DEG. 00'00"W, for 368.69
feet to a point of curvature; thence 16.55 feet along the arc of a curve to the
left, said curve having a radius of 30.00 feet, a central angle of 31 DEG.
36'26", and a chord of 16.34 feet which bears S15 DEG. 48'13"E to a point of
reverse curvature; thence 38.62 feet along the arc of a curve to the right, said
curve having a radius of 70.00 feet, a central angle of 3l DEG. 36'26", and a
chord of 38.13 feet which bears S15 DEG. 48'13"E; thence S00 DEG. 00'00"W, for
142.61 feet to a point of curvature; thence 47.12 feet along the arc of a curve
to the left, said curve having a radius of 30.00 feet, a central angle of 90
DEG. 00'00", and a chord of 42.43 feet which bears S45 DEG. 00'00"E; thence S90
DEG. 00'00"E, for 377.81 feet; thence N00 DEG. 01'08"E, for 8.45 feet to a
southerly corner of Official Records Book 4979, page 153 of the Public Records
of Pasco County,
Florida; thence along the southerly line of said Official
Records Book 4979, page 153 the following (9) courses:
1) S89 DEG. 45'29"E, 145.93 feet;
2) N70 DEG. 03'21"E, 134.56 feet;
3) S73 DEG. 24'09"E, 101.65 feet;
4) S37 DEG. 52'14"E, 169.61 feet;
5) S44 DEG. 39'05"E, 154.53 feet;
6) S00 DEG. 00'00"E, 159.00 feet;
7) S23 DEG. 44'27"E, for 37.26 feet;
8) S00 DEG. 00'00"E, 2.37 feet;
9) S89 DEG. 59'06"E, 786.00 feet;
thence leaving said southerly line of Official Records Book 4979, page 153, S58
DEG. 31'13"W, for 9.29 feet; thence S07 DEG. 44'28"W, for 7.24 feet; thence S15
DEG. 26'38"W, for 99.52 feet; thence S12 DEG. 02'15"W, for 84.00 feet; thence
S13 DEG. 13'56"W, for 114.46 feet; thence S09 DEG. 29'24"W, for 76.40 feet;
thence S10 DEG. 08'55"W, for 98.58 feet; thence S11 DEG. 15'28"W, for 404.12
feet; thence S15 DEG. 03'19"W, for 376.90 feet; thence S13 DEG. 26'49"W, for
142.29 feet; thence S16 DEG. 40'25"W, for 192.92 feet; thence N79 DEG. 29'25"W,
for 84.79 feet; thence N67 DEG. 52'33"W, for 31.55 feet; thence N47 DEG.
56'54"W, for 52.96 feet; thence N22 DEG. 05'00"W, for 91.05 feet; thence N36
DEG. 03'11"W, for 228.03 feet; thence N83 DEG. 48'39"W, for 143.10 feet; thence
S83 DEG. 07'41"W, for 71.60 feet; thence S77 DEG. 57'28"W, for 20.44 feet;
thence S81 DEG. 08'31"W, for 28.12 feet; thence S85 DEG. 10'24"W, for 25.87 feet
to a point of curvature; thence 129.76 feet along the arc of a curve to the
left, said curve having a radius of 360.00 feet, a central angle of 20 DEG.
39'06", and a chord of 129.06 feet which bears S74 DEG. 50'51"W; thence S64 DEG.
31'18"W, for 52.94 feet; thence S61 DEG. 44'47"W, for 35.40 feet; thence S55
DEG. 11'27"W, for 37.10 feet; thence S16 DEG. 56'52"W, for 37.02 feet; thence
S07 DEG. 25'50"W, for 63.31 feet; thence S02 DEG. 47'18"W, for 61.06 feet;
thence S04 DEG. 34'11"E, for 56.28 feet;
2
thence S12 DEG. 29'24"E, for 36.15 feet; thence S03 DEG. 06'02"E, for 91.19
feet; thence N82 DEG. 31'44"W, for 77.99 feet; thence N53 DEG. 12'35"W, for
249.96 feet; thence N36 DEG. 46'10"E, for 80.00 feet; thence N36 DEG. l8'12"E,
for 8.72 feet; thence N46 DEG. 02'02"E, for 19.44 feet; thence N49 DEG. 35'25"E,
for 32.50 feet; thence N32 DEG. 44'54"E, for 19.45 feet; thence N48 DEG.
40'10"E, for 49.67 feet; thence N42 DEG. 52'54"E, for 46.05 feet; thence N31
DEG. 13'04"E, for 32.92 feet; thence N36 DEG. 34'44"E, for 43.39 feet; thence
N28 DEG. 13'26"E, for 37.39 feet; thence N45 DEG. 49'21"E, for 45.28 feet;
thence N37 DEG. 33'17"E, for 34.70 feet; thence N31 DEG. 08'28"E, for 41.65
feet; thence N50 DEG. 52'29"E, for 13.38 feet; thence N88 DEG. 27'44"E, for
14.56 feet; thence S80 DEG. 29'21"E, for 33.37 feet; thence S59 DEG. 56'44"E,
for 38.53 feet; thence S79 DEG. 20'58"E, for 41.72 feet; thence S78 DEG.
37'18"E, for 43.26 feet; thence S84 DEG. 44'54"E, for 42.70 feet; thence N79
DEG. 51'45"E, for 64.53 feet; thence N53 DEG. 36'19"E, for 57.39 feet; thence
N52 DEG. 50'27"E, for 48.38 feet; thence N53 DEG. 15'20"E, for 25.00 feet;
thence N36 DEG. 03'11"W, for 1.60 feet; thence N35 DEG. 32'30"E, for 30.01 feet;
thence N49 DEG. 32'06"E, for 40.24 feet; thence N25 DEG. 24'39"E, for 44.52
feet; thence N29 DEG. 28'58"E, for 54.45 feet; thence N24 DEG. 2l'46"E, for
58.43 feet; thence N23 DEG. 07'23"E, for 9.89 feet; thence N11 DEG. 19'22"W, for
47.82 feet; thence N16 DEG. 52'50"W, for 50.68 feet; thence N35 DEG. 28'41"W,
for 51.69 feet; thence N31 DEG. 56'03"W, for 55.94 feet; thence N70 DEG.
18'15"W, for 33.95 feet; thence N77 DEG. 43'45"W, for 62.52 feet; thence N81
DEG. 41'15" W, for 44.80 feet; thence S81 DEG. 59'17"W, for 67.45 feet; thence
S87 DEG. 25'04"W, for 54.38 feet; thence S85 DEG. 57'21"W, for 45.57 feet;
thence S71 DEG. 18'17"W, for 35.14 feet to a point of curvature; thence 118.69
feet along the arc of a curve to the right, said curve having a radius of 48.00
feet, a central angle of ▇▇▇ ▇▇▇. 40'19", and a chord of 90.68 feet which bears
N37 DEG. 51'34"W; thence N32 DEG. 58'35"E, for 21.47 feet; thence N37 DEG.
36'30"E, for 44.46 feet; thence N21 DEG. 12'56"E, for 56.75 feet; thence N12
DEG. 30'35"E, for 86.41 feet; thence N00 DEG. 55'10"E, for 45.74 feet; thence
N07 DEG. 53'53"E, for 60.35 feet; thence N90 DEG. 00'00"E, for 29.46 feet;
thence S00 DEG. 00'00"W, for 32.29 feet; thence S90 DEG. 00'00"E, for 276.26
feet; thence N01 DEG. 41'00"W, for 70.29 feet; thence N05 DEG. 06'48"E, for
47.76 feet; thence N14 DEG. 07'12"E, for 66.09 feet; thence N02 DEG. 36'33"E,
for 12.12 feet; thence N37 DEG. 12'41"W, for 83.14 feet; thence N89 DEG.
59'20"W, for 20.00 feet; thence N00 DEG. 01'00"E, for 20.00 feet; thence N27
DEG. 25'05"W, for 53.18 feet; thence N00 DEG. 00'00"W, for 193.34 feet to a
point of curvature; thence 19.48 feet along the arc of a curve to the left, said
curve having a radius of 25.00 feet, a central angle of 44 DEG. 39'05", and a
chord of 18.99 feet which bears ▇▇▇ ▇▇▇.▇▇'▇▇"▇; thence ▇▇▇ ▇▇▇.▇▇'▇▇"▇, for
109.30 feet; thence N66 DEG. 38'03"W, for 36.88 feet; thence S08 DEG. 33'47"E,
for 14.27 feet; thence S18 DEG. 48'41"W, for 48.78 feet; thence S27 DEG.
41'12"W, for 46.70 feet; thence S29 DEG. 00'25"W, for 36.23 feet; thence S38
DEG. 36'05"W, for 46.88 feet; thence S54 DEG. 43'47"W, for 29.96 feet; thence
S78 DEG. 48'25"W, for 68.06 feet; thence N74 DEG. 53'40"W, for 26.66 feet;
thence S15 DEG. 06'20"W, for 13.20 feet; thence S18 DEG. 32'56"W, for 90.54
feet; thence N71 DEG. 27'04"W, for 12.21 feet; thence N84 DEG. 23'47"W, for
97.63 feet; thence S71 DEG. 18'14"W, for 28.68 feet; thence N85 DEG. 09'00"W,
for 54.45 feet; thence S00 DEG. 01'08"W, for 25.22 feet to the point of
intersection with the southerly line of that certain parcel of land as described
in Official Records Book 4588 Page 1475 of the Public Records of Pasco County,
Florida; thence along said southerly line of Official Records Book 4588, Page
1475 for the following 38 courses:
1) N85 DEG. 09'00"W, for 8.52 feet;
2) S88 DEG. 13'20"W, for 34.68 feet;
3) S78 DEG. 24'18"W, for 35.45 feet;
4) S66 DEG. 50'15"W, for 50.33 feet;
3
5) S56 DEG. 37'21"W, for 60.84 feet;
6) S36 DEG. 58'43"W, for 42.40 feet;
7) S41 DEG. 10'03"W, for 47.42 feet;
8) S28 DEG. 50'07"W, for 61.42 feet;
9) S16 DEG. 28'54"W, for 27.42 feet;
10) S28 DEG. 58'41"E, for 20.69 feet;
11) S11 DEG. 49'28"E, for 23.82 feet;
12) S01 DEG. 48'41"E, for 88.44 feet;
13) S29 DEG. 47'07"W, for 83.06 feet;
14) S43 DEG. 19'37"W, for 53.24 feet;
15) S65 DEG. 52'57"W, for 69.43 feet;
16) S87 DEG. 55'46"W, for 43.43 feet;
17) N85 DEG. 58'54"W, for 76.42 feet;
18) N68 DEG. 41'57"W, for 62.41 feet;
19) S85 DEG. 07'13"W, for 72.97 feet;
20) N86 DEG. 56'01"W, for 55.64 feet;
21) N82 DEG. 57'18"W, for 30.47 feet;
22) N83 DEG. 11'18"W, for 47.36 feet;
23) S85 DEG. 21'32"W, for 40.34 feet;
24) N80 DEG. 44'32"W, for 43.84 feet;
25) N78 DEG. 47'59"W, for 44.77 feet;
26) N77 DEG. 29'31"W, for 38.14 feet;
27) N78 DEG. 28'24"W, for 36.20 feet;
28) N89 DEG. 12'28"W, for 28.13 feet;
29) N40 DEG. 54'09"W, for 26.05 feet;
30) N73 DEG. 33'40"W, for 38.60 feet;
31) S38 DEG. 34'29"W, for 33.53 feet;
32) S74 DEG. 38'43"W, for 35.03 feet;
33) S78 DEG. 45'07"W, for 30.20 feet;
34) S16 DEG. 21'27"W, for 30.02 feet;
35) N88 DEG. 10'26"W, for 29.64 feet;
36) S24 DEG. 30'04"W, for 34.58 feet;
37) S44 DEG. 11'06"W, for 33.20 feet;
38) S90 DEG. 00'00"W, for 74.88 feet to the point of intersection with the
aforesaid easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard as shown on Pasco
County right-of-way maps, Project Number 04325-01000219, same also being the
West line of said Official Records Book 4588, page 1475;
thence N00 DEG. 40'08"E along said easterly right-of-way line of ▇▇▇▇▇▇▇▇
Boulevard and said West line of Official Records Book 4588, page 1475, for
174.08 feet to a point of intersection with the southerly line of that certain
parcel of land as described in official records book 5783, page 278, of the
Public Records of Pasco County, Florida; thence along said southerly line of
that certain parcel of land as described in official records book 5783, page
278, the following (12) courses;
l) thence leaving said easterly right-of-way line of ▇▇▇▇▇▇▇▇ Boulevard and said
West line of Official Records Book 4588, page 1475, N90 DEG. 00'00"E, for 222.89
feet to a point of curvature;
4
2) thence 38.88 feet along the arc of a curve to the right, said curve having a
radius of 200.00 feet, a central angle of 11 DEG. 08'20", and a chord of 38.82
feet which bears S84 DEG. 25'50"E;
3) thence S78 DEG. 51'40"E, for 202.42 feet to a point of curvature;
4) thence 37.89 feet along the arc of a curve to the left, said curve having a
radius of 219.50 feet, a central angle of 09 DEG. 53'26", and a chord of 37.84
feet which bears S83 DEG. 48'23"E;
5) thence S88 DEG. 45'06"E, for 211.24 feet to a point of curvature;
6) thence 34.40 feet along the arc of a curve to the right, said curve having a
radius of 219.50 feet, a central angle of 08 DEG. 58'50", and a chord of 34.37
feet which bears S84 DEG. 15'42"E;
7) thence S79 DEG. 46'17"E, for 84.28 feet to a point of curvature;
8) thence 209.04 feet along the arc of a curve to the left, said curve having a
radius of 119.50 feet, a central angle of ▇▇▇ ▇▇▇. 13'43", and a chord of 183.39
feet which bears N50 DEG. 06'52"E;
9) thence N00 DEG. 00'00"E, for 60.22 feet to a point of curvature;
10) thence 72.85 feet along the arc of a curve to the right, said curve having a
radius of 119.50 feet, a central angle of 34 DEG. 55'50" and a chord of 71.73
feet which bears N17 DEG. 27'55"E;
11) thence N34 DEG. 55'50"E, for 79.30 feet;
12) thence N57 DEG. 53'48"W, for 24.54 feet;
thence leaving said southerly line of that certain parcel of land as described
in official records book 5783, page 278, of the Public Records of Pasco County,
Florida, N34 DEG. 55'50"E, for 38.14 feet to a point of curvature; thence 113.65
feet along the arc of a curve to the right, said curve having a radius 212.00
feet, a central angle of 30 DEG. 42'58", and a chord of 112.30 feet which bears
N50 DEG. 17'18"E; thence N65 DEG. 38'47"E, for 52.09 feet to a point of
curvature; thence 90.54 feet along the arc of a curve to the left, said curve
having a radius of 115.00 feet, a central angle of 45 DEG. 06'37", and a chord
of 88.22 feet which bears N43 DEG. 05'29"E; thence N00 DEG. 01'08"E, for 108.72
feet; thence N89 DEG. 58'52"W, for 8.00 feet; thence N00 DEG. 01'08"E, for 34.00
feet; thence S89 DEG. 58'52"E, for 8.00 feet; thence N00 DEG. 01'08"E, for 98.30
feet to a point of curvature; thence 47.13 feet along the arc of a curve to the
left, said curve having a radius of 30.00 feet, a central angle of 90 DEG.
01'08", and a chord of 42.43 feet which bears N44 DEG. 59'26"W; thence S90 DEG.
00'00"W, for 320.12 feet to a point of curvature; thence 47.13 feet along the
arc of a curve to the left, said curve having a radius of 30.00 feet, a central
angle of 90 DEG. 00'27", and a chord of 42.43 feet which bears S44 DEG. 59'46"W;
thence S00 DEG. 00'27"E, for 116.23 feet to the point of intersection with a
non-tangent curve; thence 48.52 feet along the arc of a curve to the left said
curve having a radius of 71.00 feet, a central angle of 39 DEG. 09'25", and a
chord of 47.59 feet which bears S55 DEG. 03'11"E, to a point of intersection
with the northerly line of said certain parcel of land as described in official
records book 5783, page 278, of the Public Records of Pasco County, Florida;
thence along the northerly line of said certain parcel of land as described in
official records book 5783, page 278, the following (8) courses;
1) thence S00 DEG. 00'27"E, for a distance of 77.84 feet;
2) thence S89 DEG. 59'34"W, for a distance of 88.33 feet;
3) thence S00 DEG. 00'26"E, for a distance of 10.00 feet;
4) thence S89 DEG. 59'34"W, for a distance of 245.33 feet;
5) thence S00 DEG. 00'00"E, for 1.91 feet;
6) thence S90 DEG. 00'00"W, for 313.53 feet;
7) thence N00 DEG. 00'00"E, for 39.00 feet;
8) S90 DEG. 00'00"W, for 23.63 feet; thence leaving said northerly line of that
certain parcel of land as described in official records book 5783, page ▇▇▇, ▇▇▇
▇▇▇. 00'00"E, for 427.50 feet;
5
thence N38 DEG. 39'35"W, for 32.02 feet; thence S90 DEG. 00'00"W, for 175.66
feet; thence S72 DEG. 12'04"W, for 12.76 feet to the POINT OF BEGINNING.
Containing 2,416,125 square feet or 55.467 acres, more or less.
Error of closure 0.017 feet
6
SCHEDULE 2.1.2
SITE PLAN OF THE SHOPPING CENTER
1
SCHEDULE 4.1.1
EXISTING LEASES
1. Retail Lease Agreement dated November 6, 2002 by and between Seller and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual resident of the State of Florida, d/b/a ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇, DMD, a Commencement of Lease Term Agreement dated December 1,
2003, an Assignment of Lease dated January 1, 2004 by and between ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, AMERICAN FAMILY & COSMETIC DENTISTRY, PA., a Florida corporation
and Seller, and a Guaranty of Lease dated January 1, 2004 from ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
2. Retail Lease Agreement dated October 29, 2002 by and between Seller and
HUNG ▇▇▇▇ ▇▇▇▇▇, an individual resident of the State of Florida d/b/a
ASPASIA NAIL.
3. Retail Lease Agreement dated March 6, 2003 by and between Seller and
TRINITY BEEF, INC., a Florida corporation, d/b/a BEEF ▇' ▇▇▇▇▇'▇,
Commencement of Lease Term Agreement dated February 7, 2004, and a Guaranty
of Lease dated March 6, 2003 from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
4. Retail Lease Agreement dated August 6, 2003 by and between Seller and
BRAZILIAN TANNING CORPORATION, a Florida corporation, a Commencement of
Lease Term Agreement dated January 23, 2004.
5. Retail Lease Agreement dated November 11, 2002 by and between Seller and
▇▇▇▇ ▇. ▇▇▇▇▇, a resident of Florida, d/b/a ▇▇▇▇▇▇▇▇'▇ LEANING TOWER
ITALIAN RESTAURANT, and a Commencement of Lease Term Agreement dated
January 22, 2004.
6. Retail Lease Agreement dated March 4, 2003 by and between Seller and A CELL
PHONE GUY, INC., a Florida corporation, d/b/a ▇▇▇▇▇▇▇ ▇▇▇▇ CELLULAR,
Commencement of Lease Term Agreement dated April 15, 2004, and a Guaranty
of Lease dated March 4, 2003 from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
7. Retail Lease Agreement dated October 23, 2002 by and between Seller and DE
▇▇▇▇ ▇▇▇▇, a resident of Florida, d/b/a CHINA XPRESS, and a Commencement of
Lease Term Agreement dated March 9, 2004.
8. Retail Lease Agreement dated April 26, 2004 by and between Seller and ▇▇▇
▇. SHORT, a resident of Florida, d/b/a CHRISTIANS BOUTIQUE & BRIDAL.
9. Retail Lease Agreement dated January 20, 2004 by and between Seller and
CELLVENTURES, INC., a New York corporation, and a Commencement of Lease
Term Agreement dated April 29, 2004, d/b/a CINGULAR WIRELESS.
10. Retail Lease Agreement dated June 17, 2003 by and between Seller and SUNRAY
NURSERY INC., d/b/a COTTAGE FLORIST.
1
11. Retail Lease Agreement dated May 29, 2003 by and between Seller and CRUISE
WAREHOUSE INTERNATIONAL, INC., a Guaranty of Lease dated May 29, 2003 from
▇▇▇▇ ▇▇▇▇▇▇▇, and a Commencement of Lease Term Agreement dated November 3,
2003.
12. Retail Lease Agreement dated June 2, 2003 by and between Seller and ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and a Commencement of Lease Term
Agreement dated October 30, 2003, d/b/a CURVES FOR WOMEN.
13. Retail Lease Agreement dated June 30, 2003 by and between Seller and
ELECTRONICS BONTIQUE OF AMERICA INC., a Pennsylvania corporation, and a
Commencement of Lease Term Agreement dated October 31, 2003, d/b/a EB
GAMES.
14. Retail Lease Agreement dated October 24, 2002 by and between Seller and
GAMRAK, INC., a Florida corporation, Commencement of Lease Term Agreement
dated November 1, 2003, and a Guaranty of Lease dated October 24, 2002 from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to Seller, d/b/a CHRISTO'S.
15. Retail Lease Agreement dated November 14, 2002 by and between Seller and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual resident of the State of Florida, d/b/a
▇▇▇▇▇▇ ▇▇▇▇▇ SALON, and Commencement of Lease Term Agreement dated October
2, 2003.
16. Retail Lease Agreement dated March 12, 2003 by and between Seller and
SUNCOAST CLIPS, INC., a Florida corporation, d/b/a GREAT CLIPS, and a
Commencement of Lease Term Agreement dated November 10, 2003, and a
Guaranty of Lease dated March 12, 2003 from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
17. Retail Lease Agreement dated November 18, 2003 by and between Seller and
DEB'S SHOPS II, INC., a Florida corporation, d/b/a HALLMARK GOLD CROWN,
Commencement of Lease Term Agreement dated February 24, 2004, and a
Guaranty of Lease dated November 18, 2003 from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
18. Retail Lease Agreement dated December 17, 2002 by and between Seller and
ELENI KAZAKI, an individual resident of Florida, d/b/a LA BEBE' SALON.
19. Limited Warranty Deed with Restrictive Covenants and Reservation of
Easements dated June 18, 2003 by and between Seller and MADISON BANK., a
Florida banking corporation.
20. Retail Lease Agreement dated November 14, 2002 by and between Seller and
▇▇▇▇▇▇ ▇▇▇▇▇, an individual resident of Florida, d/b/a MAJIK TOUCH
CLEANERS.
21. Retail Lease Agreement dated August 8, 2003 by and between Seller and
MATTRESS FIRM, INC., an Illinois corporation, d/b/a THE MATTRESS FIRM, and
a Commencement of Lease Term Agreement dated December 30, 2003.
22. Lease Agreement dated October 2, 2002 by and between Seller and MARSHALLS
OF MA, INC., a Massachusetts corporation, a Letter Agreement dated October
21, 2002, a Letter Agreement
2
dated April 14, 2003, a Commencement Date Agreement dated August 8, 2003,
and a Letter Agreement dated November 21, 2003.
23. Lease Agreement dated April 30, 2004 by and between Seller and PANERA, LLC,
a Delaware limited liability company; and a Memorandum of Lease dated April
30, 2004.
24. Retail Lease Agreement dated July 30, 2003 by and between Seller and
PAYLESS SHOESOURCE, INC., a Missouri corporation, a Commencement of Lease
Term Agreement dated October 7, 2003, and an Addendum to the Lease dated
July 30, 2003.
25. Shopping Center Lease Agreement dated October 15, 2002 by and between
Seller and PETSMART, INC., an Illinois corporation, a Memorandum of Lease
dated October 15, 2002, a Letter Agreement dated August 15, 2003, a
Commencement Date Certificate dated September 9, 2003, and a Letter
Agreement dated January 23, 2004.
26. Lease Agreement dated August 19, 2003 by and between Seller and PIER 1
IMPORTS (U.S.), INC., an Illinois corporation, a Notice of Lease dated
January 29, 2004, and a Memorandum of Lease dated August 19, 2003
27. Retail Lease Agreement dated June 30, 2003 by and between Seller and ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, residents of the State of
Florida, and a Commencement of Lease Term Agreement dated September 29,
2003, d/b/a POCKET CHANGE.
28. Lease Agreement dated June 14, 2002 by and between Seller and PUBLIC SUPER
MARKETS, INC., a Florida Corporation, Memorandum of Lease dated June 14,
2002, a First Amendment to Lease Agreement dated September 30, 2002, a
Second Amendment to Lease Agreement dated December 11, 2002, a First
Amendment to Memorandum of Lease dated December 11, 2002, a Third Amendment
to Lease Agreement dated January 30, 2004, a Second Amendment to Memorandum
of Lease dated January 30, 2004, a Letter Agreement dated July 17, 2003, a
Letter Agreement dated August 25, 2003, and a Letter Agreement dated
February 10, 2004.
29. Lease dated November 12, 2002 by and between Seller and ROSS FLORIDA DRESS
FOR LESS, L.C., a Florida limited liability company, an Acknowledgement of
Commencement dated October 22, 2003, a Memorandum of Lease dated November
12, 2002, a Letter Agreement, not dated, and a Guaranty dated November 12,
2002 from ▇▇▇▇ STORES, INC., an Illinois corporation.
30. Retail Lease Agreement dated June 30, 2003 by and between Seller and ▇▇▇▇▇
BEAUTY COMPANY, INC., an Illinois corporation, and an Agreement Setting
Lease Term dated October 14, 2003.
31. Commercial Lease dated December 11, 2003 by and between Seller and
STARBUCKS CORPORATION, a Washington corporation, and a Letter Agreement
dated March 25, 2004.
3
32. Retail Lease Agreement dated May 28, 2003 by and between Seller and TAMPA
BAY INSURANCE SERVICES, LLC, a Florida limited liability company, a
Guaranty of Lease dated May 28, 2003, and a Commencement of Lease Term
Agreement dated October 1, 2003.
33. Operation and Easement Agreement dated March 24, 2004 by and between Seller
and TARGET CORPORATION, a Minnesota corporation.
34. Retail Lease Agreement dated May 28, 2003 by and between Seller and GATOR
LEASING AND FRANCHISE DEVELOPMENT, a Florida corporation, and a Guaranty of
Lease dated May 28, 2003, from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, d/b/a THE UPS STORE
35. Retail Lease Agreement dated June 30, 2003 by and between Seller and
TRINITY SPIRITS & WINES, INC., a Florida corporation, a First Amendment to
Retail Lease Agreement dated November 17, 2003, and a Zoning Petition
Review Report dated October 23, 2003.
36. Land Lease Agreement dated October 22, 1992 by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AND K-OUTDOOR, INC., and Seller's interest is further affected by an
Agreement Regarding Billboard Leases dated June 14, 2002 by and between
Seller and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AND D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
AS TRUSTEE, an Assignment of Intangible Assets dated June 3, 2003, and a
▇▇▇▇ of Sale dated June 3, 2003.
37. Retail Lease Agreement dated June 23, 2003 by and between Seller and VIP
MARTIAL ARTS ACADEMY II, INC., a Florida corporation, a Guaranty of Lease
dated June 23, 2003 from Shidoshi ▇▇▇▇▇ ▇▇▇▇▇▇▇, and a Commencement of
Lease Term Agreement dated February 9, 2004.
38. Retail Lease Agreement dated August 4, 2003 by and between Seller and
VITAMIN TREE, INC., a Florida corporation, and a Commencement of Lease Term
Agreement dated January 2, 2004.
39. Retail Lease Agreement dated January 23, 2003 by and between Seller and
▇▇▇▇▇, INC., a Florida corporation, a Guaranty of Lease dated January 23,
2003 from ▇▇▇▇ ▇▇▇▇▇▇, an Assignment and First Amendment of Lease dated
March 8, 2004 by and between Seller, ▇▇▇▇▇, Inc., ROSELAND FARMS, INC., and
▇▇▇▇ ▇▇▇▇▇▇, and a Commencement of Lease Term Agreement dated March 12,
2004, d/b/a WORKING COW.
4
SCHEDULE 4.1.2
CONTRACTS
1. Dumpster Service:
BFI Contract Dated: ____________
▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇ Contract Period: 8-1-03 to ▇-▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇: ____ days prior written notice
Florida 34653
2. Landscaping Maintenance Contract:
▇▇▇▇ Enterprises Contract Dated: ____________
▇.▇. ▇▇▇ ▇▇▇ Contract Period: 9-1-03 to 8-31-04
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Termination: ____ days prior written notice
3. Sweeping Maintenance Contract:
▇▇▇▇ Enterprises Contract Dated: ____________
▇.▇. ▇▇▇ ▇▇▇ Contract Period: 9-1-03 to 8-31-04
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Termination: ____ days prior written notice
1
SCHEDULE 4.1.3
RENT ROLL
(SEE ATTACHED)
1
SCHEDULE 4.1.4
TENANT DEFAULTS
1
SCHEDULE 4.1.5
NON-TERMINABLE CONTRACTS
NONE
1
SCHEDULE 4.1.6
PENDING LITIGATION
NONE
1
SCHEDULE 7.2.1
VACANT SPACES ESCROW
1
SCHEDULE 7.3.1
LEASING COSTS
1
Panera Bread $88,766.00
The UPS Store $2,400.00
Trinity Spirits & Wine $2,000.00
1