1
EXHIBIT 10.8
AGREEMENT OF SALE
by and between
LANSING SQUARE RPFII LIMITED PARTNERSHIP,
a Delaware limited partnership, Seller
and
INLAND REAL ESTATE CORPORATION,
a Maryland corporation, Buyer
Table of Contents
-----------------
Paragraph Caption Page
--------- ------- ----
1. Sale and Premises .................................. 1
2. Purchase Price ..................................... 1
3. Closing ............................................ 2
4. Condition of Title ................................. 2
5. Possession; Assignment of Agreements and
Leases ........................................... 4
6. Apportionments ..................................... 5
7. Transfer Taxes ..................................... 8
8. Municipal Improvements Relating to the
Premises ......................................... 8
9. Municipal Notices .................................. 8
10. Seller's Representations ........................... 9
11. Delivery of Premises Documents ..................... 10
12. Buyer Representations .............................. 11
13. Buyer's Obligation to Close ........................ 11
14. Deliveries at Closing .............................. 12
15. Default ............................................ 13
16. Notices; Computation of Periods .................... 14
17. Fire or Other Casualty ............................. 16
18. Assignability ...................................... 17
19. Inspection Period .................................. 18
20. Condemnation ....................................... 19
21. Brokers ............................................ 20
22. Condition of Premises .............................. 20
23. Survival of Provisions ............................. 22
24. Miscellaneous ...................................... 24
25. ERISA .............................................. 26
26. Limited Liability .................................. ▇▇
-▇-
▇
▇▇▇▇▇▇▇▇
--------
"▇" Legal Description of Premises
"B" List of Personal Property
"C" Permitted Title Objections
"D" List of Existing Leases
"E" List of Existing Agreements To Be Assigned at Closing
"F" Assignment and Assumption Agreement
"G" List of Tenant Estoppel Certificates
"H" Form of Tenant Estoppel Certificate
"I-1" Form of Deed
"I-2" Form of ▇▇▇▇ of Sale
"J" FIRPTA Certification
"K" Notice to Tenants
-ii-
3
AGREEMENT OF SALE
AGREEMENT made this 19th day of December, 1996, by and between
LANSING SQUARE RPFII LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller"), and INLAND REAL ESTATE CORPORATION, a Maryland corporation
("Buyer").
W I T N E S S E T H :
1. Sale and Purchase. Seller hereby agrees to sell and convey to Buyer,
and Buyer hereby agrees to purchase from Seller, upon the terms and conditions
hereinafter set forth:
(a) Real Property. All that certain lot or piece of
ground situate at the southeast corner of ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Avenue,
Lansing, ▇▇▇▇ County, Illinois, which is more fully described by metes and
bounds on Exhibit "A" hereto and the buildings and improvements situate thereon
(the "Premises"), together with all the rights and appurtenances pertaining to
the Premises, including any right, title and interest of Seller (if any) in and
to adjacent streets and rights-of-way; and
(b) Personal Property. The fixtures, furnishings,
equipment and other items of personal property owned by Seller and located on,
and used in connection with the operation of, the Premises which are listed on
Exhibit "B", hereto (collectively the "Personal Property").
2. Purchase Price. The purchase price to be paid by Buyer to Seller for
the Premises and the Personal Property is the sum of Sixteen Million Three
Hundred Thousand and No/100 Dollars ($16,300,000.00) (the "Purchase Price").
The Purchase Price shall be paid as follows:
(a) Deposit. The sum of Five Hundred Thousand and No/100
Dollars ($500,000.00) (the "Deposit") upon the execution of this Agreement by
the delivery of Buyer's check drawn on Lasalle National Bank, subject to
collection, payable to the order of Near North National Title Corporation (the
"Escrowee"). The Escrowee shall immediately present Buyer's check for
collection, if applicable, and then, pending consummation of this transaction,
hold the Deposit in escrow in an interest bearing account at a national bank
approved by Seller and Buyer in accordance with applicable law. All interest
earned on the Deposit shall be added to and made a part of the Deposit. Buyer
shall bear the risk of loss of the Deposit. At closing the
-1-
4
Deposit shall be paid to Seller. The Escrowee shall not be liable to Buyer or
to Seller for any act or omission of Escrowee not committed or occurring in
bad faith. If Seller delivers to Escrowee a written notice ("Seller's
Notice") that (i) the Buyer has defaulted under this Agreement, (ii) Seller
demands payment of the Deposit to Seller and (iii) Seller is simultaneously
delivering to Buyer a copy of the Seller's Notice, Escrowee agrees to deliver
the Deposit to Seller if Escrowee has not received within five (5) business
days from Escrowee's receipt of the Seller's Notice, a written notice from
Buyer ("Buyer's Notice") addressed to both Escrowee and Seller in which Buyer
denies that Buyer is in default under this Agreement. If a dispute arises
between Buyer and Seller as to the payment of the Deposit, the Escrowee shall,
at its option, be entitled to pay the Deposit into the applicable Court of
record in ▇▇▇▇ County, Illinois and to interplead both Seller and Buyer,
whereupon the Escrowee shall be released from any further liability or
obligation to either Seller or Buyer.
(b) Closing Payment. The sum of Fifteen Million Eight Hundred
Thousand and No/100 Dollars ($15,800,000.00), less the amount of the interest
which is part of the Deposit, if any, received by Seller, and less any net
prorations in favor of Buyer, at closing by wire transfer of immediately
available United States federal funds to the Escrowee's account at a bank
designated by the Escrowee and approved by Seller.
3. Closing. Closing shall be held and completed on December 30,
1996 (the "Closing Date"), commencing at 10:00 a.m at the offices of the
Escrowee. Buyer shall have the right, at its sole option, to cause closing to be
held on such date prior to the Closing Date as Buyer shall hereafter designate
by at least five (5) days' prior written notice to Seller.
4. Condition of Title.
(a) (i) Title to Premises. Fee simple title to the Premises
shall be conveyed by Seller to Buyer at the completion of closing by a deed
(the "Deed") containing Seller's special warranty, excluding from such warranty
the Permitted Encumbrances. Title to the Personal Property shall be conveyed by
Seller to Buyer at the completion of closing by a ▇▇▇▇ of sale ("▇▇▇▇ of Sale")
containing Seller's special warranty, excluding from such warranty the
Permitted Encumbrances. Title to the Premises shall be such as will be insured
as good and marketable by a title insurance company pursuant to the standard
stipulations and conditions of the most current form of ALTA Policy of Owner's
Title Insurance, with a 3.1 Zoning Endorsement, an Extended Coverage
Endorsement and a Restrictions Endorsement, free and clear of all liens and
encumbrances except for the Permitted Encumbrances. The term "Permitted
Encumbrances" shall mean the Existing Leases (as hereinafter defined), any
lien against Buyer's interest under this Agreement, and the additional title
objections set forth on Exhibit "C" attached hereto. Title
-2-
5
to the Personal Property shall also be subject to the Permitted Encumbrances.
(ii) Seller (at Seller's sole cost and expense) shall
deliver to Buyer promptly after the date of this Agreement the physical survey
of the Premises by Mackie Consultants, Inc. certified to Seller, Buyer, Lasalle
National Bank and the title company as of a current date (the "Survey").
(iii) Title Defects. Not later than December 23, 1996,
Seller shall submit to Buyer a current title commitment issued by Near North
National Title Corporation. Not later than the end of the Inspection Period (as
defined in Section 19), Buyer shall submit to Seller, if at all, a written
notice from Buyer ("Title Notice") Specifying any alleged defects in or
objections to the title to the Premises or the Survey which do not constitute
Permitted Encumbrances. Buyer shall be deemed to have waived its right to
object to any encumbrance or other title objection or survey defect existing at
the time of the Closing Date unless Buyer shall have timely given to Seller the
Title Notice which specified Buyer's objection unless such encumbrance or other
title objection or survey defect was not disclosed by the title commitment or
the Survey. Seller shall have no obligation to cure any alleged defect or
objection raised in the Title Notice, except that Seller shall cause the
existing first mortgage held by Nationwide Life Insurance Company, an Ohio
corporation (the "First Mortgagee"), to be discharged at closing. Upon Buyer's
failure to timely object, any encumbrance or other title objection or survey
defect disclosed by the title commitment or the Survey shall thereafter be
deemed a Permitted Encumbrance. Seller shall have the right, at its sole
option, to defer the Closing Date for a period not exceeding thirty (30) days
to give Seller an opportunity, at Seller's sole option, of either (i)
attempting to remove any encumbrance or other title objection or survey defect
which is not a Permitted Encumbrance or (ii) providing the title insurance
company such assurances as the title insurance company requires to insure Buyer
and Buyer's mortgagee against any loss arising from such encumbrances or other
title objections or survey defects, or (iii) electing to do neither (i) nor
(ii).
(b) Failure of Title. If on the Closing Date title to the
Premises is not insurable as set forth in subparagraph (a) above, Buyer may
elect, as its sole right and remedy, either (i) to take such title to the
Premises as Seller can convey, with abatement of the Purchase Price only to the
extent of monetary liens of a definite, fixed and ascertainable amount not in
excess of the Purchase Price or (ii) to receive on written demand by Buyer to
the Escrowee, with a copy to Seller, the return of the Deposit. Notwithstanding
the foregoing provisions, Buyer agrees to accept title to the Premises and
Personal Property subject to judgments against Seller if the Title Company
insures Buyer against loss by reason of such judgments. Upon the return of the
Deposit, pursuant to this
-3-
6
Section 4(b), this Agreement shall be and become null and void, neither party
shall have any further rights or obligations hereunder (except for the
indemnity obligations of Buyer to Seller as set forth in this Agreement which
shall survive the cancellation of this Agreement), and all executed
counterparts of this Agreement shall be returned to Seller.
5. Possession, Assignment of Agreements and Leases.
(a) Existing Leases. Possession of the Premises and the
Personal Property is to be given by Seller to Buyer at the completion of
closing by delivery of the Deed and the ▇▇▇▇ of Sale and by assignment of the
Existing Leases (as hereinafter defined). Seller shall, prior to closing,
submit any proposed lease or amendment to an Existing Lease to Buyer for
Buyer's approval. If Buyer does not disapprove in writing such a proposed lease
within five (5) days of Buyer's receipt of the proposed lease, Buyer shall be
deemed to have approved the proposed lease. All such new leases and the
presently existing leases listed on Exhibit "D" hereto are collectively herein
called the "Existing Leases". Seller represents that, at the time of closing,
Seller shall have accepted no prepayment of rent under any of the Existing
Leases (except for the current month) that Seller shall not have terminated any
of the Existing Leases by agreement with the tenant (except by reason of a
default by the tenant thereunder). Buyer acknowledges that prior to the end of
the Inspection Period that Buyer will have examined all copies of the Existing
Leases now in effect to determine whether or not the provisions thereof conform
to the data set out on Exhibit "D" hereto. The termination of any of the
Existing Leases prior to closing by reason of the expiration of its term shall
not excuse Buyer from its obligation to complete closing and to pay the full
Purchase Price.
(b) Existing Agreements. Seller shall also assign to Buyer at
the completion of closing, if assignable, the existing agreements, listed on
Exhibit "E" hereto (hereinafter collectively called the "Assigned Existing
Agreements). Buyer acknowledges that prior to the end of the Inspection Period
that Buyer will have examined all copies of the Assigned Existing Agreements
now in effect to determine whether or not the provisions thereof conform to the
data set forth on Exhibit "E". Seller shall, prior to closing, have the right
to enter into new service agreements, provided any such agreement shall be
terminable by the owner of the Premises on not more than thirty (30) days,
notice. All such service agreements shall also constitute Assigned Existing
Agreements. The termination of any of the Assigned Existing Agreements prior to
closing by reason of the expiration of its term or by reason of a default
thereunder shall not excuse Buyer from its obligation to complete closing and
to pay the full Purchase Price.
(c) Assignment and Assumption. At closing, Seller and Buyer
shall execute and acknowledge an agreement (the
-4-
7
"Assignment and Assumption Agreement") in the form attached hereto as Exhibit
"F" wherein Buyer shall assume all of the obligations of Seller under the
Existing Leases and the Assigned Existing Agreements.
(d) Tenant Estoppel Certificates. Seller agrees to use its
reasonable efforts to cause those tenants of the Premises specifically
identified on Exhibit "G" hereto and made a part hereof to deliver to Buyer not
later than the business day prior to the Closing Date a written statement
("Tenant Estoppel Certificate") in substantially the form of, and as qualified
by, the form of tenant estoppel certificate set forth on Exhibit "H" attached
hereto and made a part hereof. Buyer agrees not to object to (i) any
non-material (as determined in Buyer's reasonable judgment) qualifications or
modifications which a tenant may make to the form of Tenant Estoppel
Certificate and (ii) any modification to a Tenant Estoppel Certificate to
conform it to the form of tenant estoppel the tenant is required to give under
its lease. To the extent a Tenant Estoppel Certificate contains conflicting
information from that contained on Exhibit "D" for that lease, Buyer shall have
the right either to give a Termination Notice in accordance with Section l9 (c)
as if the Inspection Period had not ended or to waive such conflicting
information, without abatement of the Purchase Price, whereupon, Exhibit "D"
shall be deemed automatically modified to include such differing information.
Buyer's obligations under this Agreement to complete Closing on the Closing
Date and pay the Purchase Price shall not be relieved if Seller is unable to
obtain any required Tenant Estoppel Certificate after using its reasonable
efforts to obtain it if Seller instead, at Seller's sole option, executes a
Tenant Estoppel Certificate for such tenants, which shall have the substance
and effect of an indemnity from Seller to Buyer from any claim by the tenant
which would have been precluded by a Tenant Estoppel Certificate by the tenant
in such form. If any such tenant does have a claim which would entitle it to
set-off the amount of the claim against rent due under the lease and the amount
of such claim is ascertainable, Seller shall have the right, at its sole
option, to give Buyer a credit against the cash portion of the Purchase Price
in the amount of the claim; and, in such event, Buyer shall complete closing
and take subject to such claim.
6. Apportionments.
(a) (i) Taxes and Assessments. Real estate taxes and annual
municipal or special district assessments or installments thereof (on the basis
of the actual fiscal years for which such taxes are assessed), lienable water
and sewer rentals, sums paid to or paid or payable by Seller under the Assigned
Existing Agreements, prepaid fees for licenses and permits to remain in effect
for Buyer's benefit after closing, and rentals and other sums paid to and
received by Seller under the Existing Leases shall be apportioned at closing
pro rata between Buyer and Seller on a per diem basis as of the date of
closing. All income
-5-
8
and expenses for the Premises for the period from and after the Closing Date
shall belong to and shall be the responsibility of Buyer. If Seller has paid
the current year taxes during a discount period, the taxes shall be
apportioned as if they were paid during the non-discount period.
(ii) Rent Arrearages. Any payments received by Buyer
after the date of closing from a tenant under any of the Existing Leases which
are specified to be on account of rentals which are applicable to periods prior
to closing and on account of sums which are attributable to expenses incurred
by the lessor for periods of time prior to closing, shall be apportioned by
Buyer upon receipt and the portion thereof attributable to periods or expenses
prior to closing shall immediately be paid by Buyer to Seller. If, at closing,
any tenants are in arrears in the payment of rents or other sums, which were
payable prior to closing, all payments by such tenants after closing will be
deemed as being applicable, first, as against current rental due and, then, as
against any such arrearages.
(iii) Contract Arrearages. Any payments received by
Buyer after the date of closing under any of the Assigned Existing Agreements
which are specified to be on account of payments which are applicable to
periods prior to closing shall be apportioned by Buyer upon receipt and the
portion thereof attributable to periods prior to closing shall immediately be
paid by Buyer to Seller.
(iv) Accounting. Until such time as Seller shall have
received in full all sums which are potentially payable to it on account of any
of the Existing Leases or the Assigned Existing Agreements as provided in
subparagraphs (ii) and (iii) above, Buyer shall provide to Seller from time to
time (but not more than three (3) times) after closing an accounting of all
sums received by Buyer under any of the Assigned Existing Leases or Existing
Agreements pursuant to which Seller might be entitled to payments as provided
in said subparagraphs.
(v) No Tax ▇▇▇▇. There shall be no apportionment of the real
estate taxes imposed upon the Premises which are subject to payment or
reimbursement by the tenants under the Existing Leases to the tenants commonly
known as Sam's Wholesale Club #6489, Baby Superstore, Inc. and Blockbuster
Videos. All other real estate taxes (the "In-Line Taxes") imposed upon the
Premises for the tax fiscal years in which closing occurs shall be reasonably
ascertained by Seller and Buyer based upon the then current assessment and
anticipated tax rate and multiplier, and the portions of such taxes to be borne
by Seller shall be credited to Buyer; Seller shall be entitled to retain or to
receive all payments or reimbursements by tenants with respect to the In-Line
Taxes. If the actual In-Line Taxes or the actual In-Line Taxes paid by tenants
under Existing Leases vary from the amounts estimated, Seller or Buyer shall
pay to the
-6-
9
other of them, within thirty (30) days of receipt of an invoice in reasonable
detail the variance due.
(vi) Tenant Pass-Throughs. If any percentage rents,
"escalation" payments relating to operating expenses or other payments (but not
real estate taxes and assessments) due under the Existing Leases after the date
of closing from a tenant under any of the Existing Leases on account of periods
prior to closing and on account of sums which are attributable to expenses
incurred by the lessor for periods of time prior to closing, cannot be
precisely determined at the time of closing, Seller shall reasonably estimate
the apportionment of such sums, and such estimated sums shall be apportioned at
closing pro-rata between Buyer and Seller on a per diem basis as of the date of
closing. A post closing adjustment shall be made, if necessary, between Buyer
and Seller for such apportioned items within thirty (30) days after the sums
can be precisely determined.
(vii) Percentage Rent. Notwithstanding the provisions
of this subparagraph (a) to the contrary, the apportionment of "percentage
rent", and the amounts due by Buyer to Seller, respectively, under each of the
Existing Leases, shall be made and paid on or before the thirtieth day
following the date when the last amount due on account of such percentage rent
shall have been paid by the tenants under their respective Existing Leases with
respect to the percentage rent lease year (as defined in each of the Existing
Leases) in which the closing date falls. The amount to be apportioned shall be
the total of the amounts collected by both Buyer and Seller as percentage rent
for such percentage rent lease year. Seller's portion thereof shall be an
amount which bears the same ratio to the total percentage rent for the
applicable percentage rent lease year as the number of days up to, but not
including the date of closing in such percentage rent lease year shall bear to
the full number of days in such percentage rent lease year; and Buyer shall be
entitled to the remaining portion. Buyer shall cause all percentage rent
payments for the percentage rent lease years with respect to which percentage
rent is to be apportioned between Buyer and Seller to be paid to Buyer's
property manager by all tenants under the Existing Leases, and Buyer's property
manager shall divide and distribute the amounts so collected between Buyer and
Seller in accordance with the provisions hereof.
(viii) Title Insurance. Seller shall pay the charge for
the title commitment and the premium for the ALTA Policy of Owner's Title
Insurance, without endorsement. Buyer shall pay the premium for any endorsement
to the ALTA Policy of Owner's Title Insurance.
(ix) Escrow. The escrow fees of the title insurance
company for the closing shall be paid one-half (1/2) by Seller and one-half
(1/2) by Buyer.
-7-
10
(b) Tenant Security Deposits. At closing, Seller shall cause
its management agent to deliver to Buyer, without consideration, a check in the
amount of all security deposits, and accrued interest, then held by or for
Seller under the Existing Leases. Buyer will cause the security deposits to be
maintained after closing in accordance with the requirements of applicable law.
(c) Utility Readings. Seller shall use reasonable efforts to
obtain readings of the water and electric meters on the Premises to a date no
sooner than ten (10) days prior to the date of closing. At or prior to closing,
Seller shall pay all charges based upon such meter readings. However, if after
reasonable efforts Seller is unable to obtain readings of any meters prior to
closing, closing shall be completed without such readings and upon the
obtaining thereof after closing, Seller shall pay the charges incurred prior to
closing as reasonably determined by Seller and Buyer based upon such readings.
(d) Supplies. [INTENTIONALLY OMITTED]
(e) Reimbursements. Buyer shall have no obligation to reimburse
Seller for any leasing commissions and tenant costs actually paid by Seller for
the Existing Leases or any leases executed after the date of this Agreement
which comply with the criteria set forth in Paragraph 5(a) of this Agreement
(or are otherwise agreed to by Buyer).
7. Transfer Taxes. Seller shall pay all realty transfer taxes and
similar taxes imposed upon the delivery and/or recording of the Deed or upon
this transaction by the State of Illinois and ▇▇▇▇ County, Illinois. Buyer
shall pay all other realty transfer taxes and similar taxes imposed upon the
delivery and/or recording of the Deed or upon this transaction.
8. Municipal Improvements Relating to the Premises. Buyer shall
pay all assessments or installments of assessments against the Premises or any
part thereof for improvements or other work, construction of which shall be
payable after the Closing Date (including any fines, interest or penalties
thereon due to the non-payment thereof), and shall indemnify, defend and
exonerate and save Seller harmless from any claims therefor or any liability,
loss, cost or expenses arising therefrom. Buyer shall have the same obligations
to Seller with respect to any such assessment made after the date of closing to
the extent that the assessing entity claims that Seller shall have personal
liability therefor.
9. Municipal Notices.
(a) Seller Representations. Seller represents to Buyer that, at
the date of this Agreement, it has no actual knowledge (without investigation
on Seller's part) of any
-8-
11
outstanding written notice from any public authority concerning the existence
of any presently uncorrected violation of any ordinance, public regulation or
statute with respect to the Premises.
(b) Buyer Assumption. If there is any such notice concerning
the existence of an uncorrected violation of an ordinance, public regulation or
statute issued by any public authority after the date hereof and on or prior to
the Closing Date, Buyer shall have the option either (i) to close without
abatement of the Purchase Price and if Buyer so closes, Buyer shall be liable
to effect compliance for such violation or (ii) to give a Termination Notice in
accordance with Section 19(c) as if the inspection period had not ended.
10. Seller's Representations.
(a) Seller hereby represents to Buyer as follows:
(i) Organization. Seller is a limited partnership, duly
organized and validly existing under the laws of the State of Delaware and has
all requisite partnership power and authority to carry on its business as now
conducted.
(ii) Authorization. Seller has the partnership power
and authority to enter into and perform this Agreement, and Seller has duly
authorized the execution of this Agreement.
(iii) No Condemnation. To Seller's actual knowledge
(without investigation on Seller's part), there are no existing or pending
condemnation proceedings or deeds in lieu of condemnation affecting the
Premises, nor, to Seller's actual knowledge (without investigation on Seller's
part), have any such condemnation proceedings been overtly threatened.
(iv) Existing Leases. The information on the Existing
Leases attached hereto as Exhibit "D" (or actually disclosed in the Existing
Leases or other materials delivered or made available to Buyer prior to the
date hereof) is true and complete in all material respects; no tenants are, to
Seller's actual knowledge (without investigation on Seller's part), entitled to
any rebates, rent concessions or free rent except as may be expressly set forth
in the Existing Leases or on Exhibit "D"; no rents due under any of the
Existing Leases have been assigned, hypothecated or encumbered by Seller other
than to the First Mortgagee; and other than as shown on Exhibit "D" (or
actually disclosed in the Existing Leases or other materials delivered or made
available to Buyer prior to the date hereof) there are, to Seller's actual
knowledge (without investigation on Seller's part), no leasing commissions,
payable to any person or entity in regard to the Existing Leases which are in
effect on the date hereof.
-9-
12
(v) Litigation. There is no pending litigation against
Seller with respect to the Premises.
(vi) Disclosure. To Seller's actual knowledge (without
investigation on Seller's part), (A) Buyer has been given access to all of
Seller's files held by the property manager of the Premises for Seller which
relate to the Premises other than files containing confidential documents such
as personnel documents, market analyses, appraisals, audits, projections,
income tax returns and correspondence between the property manager and Seller
with respect thereto, (B) such files are the general location for storing
documents related to the operation or management of the Premises, except for
engineering reports or environmental assessments prepared for Seller, (C) such
files contain all documents in the possession of Seller or Seller's property
manager which could have a material bearing on the value or operation of the
Premises, except for the engineering report(s) and the environmental
assessment(s) which have been delivered by Seller to Buyer, and (D) no
documents have been removed from such files in an effort to withhold
information from Buyer.
(b) All references in this Section 11 or elsewhere in this
Agreement to "Seller's knowledge" or "Seller's actual knowledge" shall refer
solely to the actual knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and shall not be construed to
refer to the knowledge of any other employee, officer, director, shareholder or
agent of Seller or any affiliate of Seller, and shall not include imputed or
constructive knowledge.
11. Delivery of Premises Documents.
(a) Deliveries. Seller has furnished or made available to
Buyer, and Buyer acknowledges receipt or the availability of, the following:
(i) Copies of plans and specifications, environmental
report, and engineering reports for the Premises, to the extent currently in
Seller's possession.
(ii) The current books and records (excluding, however,
internal memoranda, financial projections, appraisals and projected budgets)
customarily prepared by or at Seller's request with respect to the Premises,
including, without limitation, to the extent so prepared, all ledgers, records
of income, expense, capital expenditures, utility bills and the most recent
property tax ▇▇▇▇.
(iii) Copies of all management, service, maintenance
and other contracts currently in force with respect to the Premises.
-10-
13
(iv) Copies of all Existing Leases and other occupancy
agreements currently in force or under negotiation with respect to the
Premises.
(v) Copies of all operating permits and certificates of
occupancy issued with respect to the Premises to the extent currently in
Seller's possession.
(b) NO WARRANTY. NOTWITHSTANDING THE PRIOR PROVISIONS OF THIS
SECTION TO THE CONTRARY, BUYER ACKNOWLEDGES AND UNDERSTANDS THAT, EXCEPT FOR
THE REPRESENTATIONS AS TO THE EXISTING LEASES WHICH ARE SET FORTH IN SECTION
10(a)(IV), SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF THE DELIVERED MATERIALS
OR WHETHER BUYER IS ENTITLED TO RELY THEREON.
12. Buyer Representations. Buyer hereby represents to Seller as
follows:
(a) Organization. Buyer is a corporation duly organized and
validly existing under the laws of the State of Maryland and has all requisite
power and authority to carry on its business as now conducted.
(b) Authorization. Buyer has the corporate power and authority
to enter into and perform this Agreement and Buyer has duly authorized the
execution of this Agreement.
(c) ERISA. Buyer is not acquiring the Premises and the Personal
Property with the assets of an employee benefit plan as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974 ("ERISA").
(d) Source of Funds. The source of funds for payment by Buyer
of the Purchase Price is capital collected from investors purchasing shares of
stock of Buyer; none of such funds are funds which would be subject to 18
U.S.C. Sections 1956-1957 (Laudering of Money Instruments), 18 U.S.C.
Sections 981-986 (Federal Asset Forfeiture) or 21 U.S.C. Section 881
(Drug Property Seizure).
13. Buyer's Obligation to Close. Buyer shall not be obligated to
close under this Agreement unless each of the following conditions shall exist
on the Closing Date:
(a) Title Policy. A title insurance company shall commit in
writing to Buyer to issue an ALTA Title Policy as described in and in
accordance with Section 4(a) of this Agreement.
(b) Accuracy of Representations. The representations and
warranties made by Seller in this Agreement shall be true and correct as of the
Closing Date in all material respects.
-11-
14
(c) No Taking. No material part of the Premises shall have
previously been acquired by any governmental agency in the exercise of any
power of eminent domain or by private purchase in lieu thereof, nor on the
Closing Date shall any such acquisition or purchase be pending.
14. Deliveries at Closing.
(a) Seller's Deliveries. On the Closing Date, Seller shall
deliver to the Escrowee the following:
(i) Deed. The Deed which shall be in substantially the
form attached hereto and incorporated herein as Exhibit "I-1". The Deed shall
be prepared by Seller, and the Deed will be recorded at the expense of Buyer.
(ii) ▇▇▇▇ of Sale. The ▇▇▇▇ of Sale which shall be in
substantially the form attached hereto and incorporated herein as Exhibit
"I-2".
(iii) Assignment and Assumption Agreement. The
Assignment and Assumption Agreement in the form of Exhibit "F".
(iv) Rent Roll. A Rent Roll in substantially the form
as Exhibit "D", certified as true and correct in all material respects by
Seller, made within five (5) business days prior to the Closing Date.
(v) Authority Documents. If requested by the title
insurance company, a corporate resolution or partnership resolution executed by
the general partner, as the case may be, and an incumbency certificate to
evidence the capacity of the signatory for Seller.
(vi) FIRPTA Certification and Title Affidavit. The
Affidavit in the form attached hereto as Exhibit "K" with respect to compliance
with the Foreign Investment in Real Property Tax Act (Internal Revenue Code
Sec. 1445, as amended, and the regulations issued thereunder) and an affidavit
in favor of the title insurance company (which affidavit shall in no event
expand the Seller's warranty contained in the Deed) that no mechanics' liens
are filed or may be filed against the Premises by reason of any act of Seller
(or, at Seller's option, or if they are filed or may be filed that Seller will
indemnify the title insurance company against loss by reason thereof).
(vii) Possession and Keys. Possession free and clear of
all parties in possession, except under the Existing Leases and the Permitted
Encumbrances, and except that Seller may continue to store at Seller's sole
risk in the vacant space in the Premises certain personal property in
accordance with a License Agreement reasonably acceptable to Seller and Buyer
until resolution of a dispute with a prior tenant or until Buyer
-12-
15
advises Seller that Buyer requires possession of such vacant space, and (to
the extent in Seller's possession) all keys, codes and other security devices
for the Property.
(viii) Tenant Notices. Written notice from Seller to
each tenant of the Property under the Existing Leases in substantially the form
attached hereto as Exhibit "K".
(ix) Books and Records. Copies (to the extent in
Seller's possession) of all books and records for the orderly transition of
operation of the Premises.
(x) Original Documents. The originals (to the extent in
Seller's possession) of all Existing Leases, all Assigned Agreements, and all
plans and specifications and all other materials owned by Seller relating to
the maintenance and operation of the Property and which are currently in
Seller's possession.
(xi) Other Documents. Any other documents which Seller
is obligated to deliver to Buyer pursuant to this Agreement.
(b) Buyer's Deliveries. On the Closing Date, Buyer will deliver
to the Escrowee the following:
(i) Assignment and Assumption Agreement. The Assignment
and Assumption Agreement in the form of Exhibit "F".
(ii) Authority Documents. A corporate resolution and an
incumbency certificate to evidence the capacity of the signatory for Buyer.
(iii) Purchase Price. That portion of the Purchase
Price payable at closing.
(iv) Other Documents. Any other documents which Buyer
is obligated to deliver to Seller pursuant to this Agreement.
15. Default.
(a) Buyer Default. If Buyer defaults under this Agreement at or
prior to the Closing Date by failing to complete closing in accordance with the
terms of this Agreement or in any other respect, then on December 30, 1996, the
Deposit shall be paid to Seller by the Escrowee (and Buyer hereby irrevocably
directs the Escrowee to make such payment in such circumstance) and the Deposit
shall be retained by Seller as liquidated damages. The retention of the Deposit
shall be Seller's only remedy in the event of Buyer's default at or prior to
the Closing Date, and Seller in such event hereby waives any right, unless
closing is completed, to recover the balance of the Purchase
-13-
16
Price. Seller and Buyer agree that the actual damages to Seller in the event
of such breach are impractical to ascertain as of the date of this Agreement
and the amount of the Deposit is a reasonable estimate thereof. If Seller
shall retain the Deposit as liquidated damages, this Agreement shall be and
become null and void and all copies will be surrendered to Seller. Nothing in
this Paragraph shall limit Seller's rights against Buyer by reason of any
indemnity obligations of Buyer to Seller set forth in this Agreement all of
which shall survive the termination of this Agreement.
(b) Seller Default. The term "Event of Seller Default" shall
mean the occurrence of the following on the Closing Date: Either (i) Seller
shall have intentionally refused to complete closing in accordance with this
Agreement when Buyer shall have given written notice to Seller on the Closing
Date that Buyer is ready, willing and able to complete closing in accordance
with this Agreement and to tender the Purchase Price or (ii) Seller is
otherwise in default under this Agreement after Buyer has given written notice
to Seller of such default and Seller has failed to cure such default within ten
(10) business days of such default. Except upon the occurrence of the Event of
Seller Default, Buyer agrees that Buyer shall not (and hereby waives any right
to) ever file or assert any lis pendens against the Premises nor commence or
maintain any action against Seller for specific performance under this
Agreement nor for a declaratory judgment as to Buyer's rights under this
Agreement. If an Event of Seller Default shall occur, Buyer may elect either to
enforce this Agreement by an action for specific performance or to receive from
Seller the amount of $100,000.00 as liquidated damages, as Buyer's sole and
exclusive remedy. Seller and Buyer agree that the actual damages to Buyer in
the event of such breach are impractical to ascertain as of the date of this
Agreement and the amount of $100,000.00 is a reasonable estimate thereof.
16. Notices; Computation of Periods.
(a) Notices. All notices given by either party to the other
shall be in writing and shall be sent either (i) by United States Postal
Service registered or certified mail, postage prepaid, return receipt
requested, (ii) by nationally recognized overnight courier service for next
business day delivery, addressed to the other party at the following addresses
listed below or (iii) via telecopier or facsimile transmission to the facsimile
numbers listed below, provided, however, that if such communication is given
via telecopier or facsimile transmission, an original counterpart of such
communication shall concurrently be sent in the manner specified in clause (ii)
above. Addresses and facsimile numbers of the parties are as follows:
-14-
17
As to Seller:
c/o GE Investment Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 7900
Stamford, Connecticut 06905
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies at the same time to:
GE Investment Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 7900
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
As to Buyer:
Inland Real Estate Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy at the same time to:
The Inland Real Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the respective parties may hereafter designate by
notice in writing in the manner specified above. Any notice may be given on
behalf of any party by its counsel. Notices given in the manner aforesaid
shall be deemed sufficiently served or given for all purposes under this
Agreement upon the earliest of (i) actual receipt or refusal by the addressee,
or (ii) one business day following the date such notices, demands or requests
shall be deposited in any Post Office, or branch Post Office regularly
maintained by the United States Government or delivered to the overnight
courier service.
-15-
18
(b) Computation of Periods. If the final day of any period of
time in any provision of this Agreement falls upon a Saturday, Sunday or a
holiday observed by federally insured banks in the State of Connecticut or the
State in which the Premises is located or by the United States Postal Service,
then, the time of such period shall be extended to the next day which is not a
Saturday, Sunday or holiday. Unless otherwise specified, in computing any
period of time described in this Agreement, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period is so computed is to be included, unless such last day
is a Saturday, Sunday or holiday in which event the period shall run until the
end of the next day which is neither a Saturday, Sunday or holiday.
17. Fire or Other Casualty.
(a) Casualty Insurance. Seller agrees to maintain in effect
until the Closing Date the fire and extended coverage insurance policies now in
effect on the Premises.
(b) Casualty Damage. If the Premises or the Personal Property
shall be damaged by fire or other casualty between the date of this Agreement
and the Closing Date and the cost to repair such damage is reasonably estimated
by Seller and Buyer to be less than $500,000.00, subject to subparagraph (c)
below, the obligation of Buyer to complete closing under this Agreement shall
in no way be voided or impaired, and Buyer shall be required to accept the
Premises and the Personal Property in their then damaged conditioned without
abatement of the Purchase Price. If any such damage or destruction occurs on or
after the date of this Agreement, the proceeds of all fire and extended
coverage insurance policies attributable to the Premises or the Personal
Property received by Seller prior to the Closing Date and not used by Seller
for any emergency repair of the Premises and the Personal Property (and Buyer
hereby authorizes Seller to use the proceeds for such purpose) shall be
disbursed by Seller to Buyer at closing for the express purpose of Buyer using
these proceeds for repairing and restoring the Premises; and all unpaid claims
under such insurance policies attributable to the Premises and Personal
Property shall be assigned by Seller to Buyer on the date of closing, there
shall be no reduction in the Purchase Price by reason of such unpaid claim,
Buyer shall receive a credit to the Purchase Price in an amount equal to the
deductible under such insurance policies allocable to such damage, if any, and
Buyer shall reimburse Seller for the cost of any emergency repairs for which
Seller has not yet received reimbursement from such proceeds.
(c) Right of Termination. Notwithstanding any of the preceding
provisions of this Paragraph, if the buildings on the Premises shall be damaged
by fire or other insured casualty prior to the Closing Date, and the cost to
repair such damage is reasonably estimated by Seller and Buyer to be equal to
or more
-16-
19
than $500,000.00, either Seller or Buyer shall have the right to terminate this
Agreement by written notice to the other (unless in the case of Seller's
termination, Buyer shall give written notice to Seller within five (5) days of
Seller's termination notice that Buyer shall complete closing within fifteen
(15) days after the date of Seller's termination notice). Upon such
termination, the Deposit shall be returned by Seller to Buyer, neither party
shall have any further rights or obligations hereunder (except the indemnity
obligations of Buyer to Seller set forth in this Agreement which shall survive
the termination of this Agreement and for any default by Buyer which may have
occurred prior thereto), and this Agreement shall be null and void. If Buyer
desires to terminate this Agreement pursuant to this subparagraph (c), Buyer
must give a written notice of termination to Seller either within ten (10)
business days after the earlier of (i) Buyer's learning of the casualty or (ii)
Seller's notice to Buyer of the occurrence of the casualty or, in any event,
prior to the Closing Date.
18. Assignability.
(a) Limited Assignment. Subject to the further limitations in
subparagraph (b) below, this Agreement, and all, but not part, of Buyer's
rights under this Agreement, may be assigned by Buyer, without the prior
written consent of Seller, to any entity affiliated with the Inland Group,
Inc., a Delaware corporation, which is qualified to do business in the State of
Illinois, so long as there is no payment for such assignment; provided,
however, that such assignment shall not release or relieve Buyer of and from
any liability or obligation under this Agreement, and Buyer shall continue to
be primarily liable to Seller under this Agreement. No such assignment shall be
effective, however, unless and until Buyer shall have furnished to Seller (i)
an executed copy of the assignment plus a written assumption agreement, in form
satisfactory to Seller, by the assignee to assume, perform and be responsible,
jointly and severally with the Buyer named herein, for the performance of all
of the obligations of Buyer under this Agreement and to pay all additional
transfer or documentary taxes imposed as a result of such assignment, and which
contains a representation by the assignee that all of the representations and
warranties made by Buyer in this Agreement are true and correct with respect to
the assignee as of the date of the assumption agreement, and (ii) such
information as Seller may reasonably request to confirm that no payment has
made for such assignment. Seller shall have the right to rely in good faith on
the genuiness and validity of the notice from Buyer of an assignment and to
convey the Premises to the assignee without liability to Buyer or any other
person. Buyer shall indemnify and save Seller harmless from and against any
such liability in connection with such conveyance to the assignee.
-17-
20
(b) Prohibited Assignments. Notwithstanding the foregoing
provisions of subparagraph (a), Buyer shall have no right to assign this
Agreement (i) to any entity owned or controlled by an employee benefit plan if
Seller's sale of the Premises to such entity would, in the reasonable judgment
of Seller or Seller's counsel, either create, otherwise cause, or raise a
material question as to whether it would create or otherwise cause, a
"prohibited transaction" under ERISA; (ii) to any person, or to any entity
which has as a direct or indirect owner or partial owner a person with a
criminal record, currently under a criminal indictment or who is not of good
moral character.
(c) Successors and Assigns. Except as provided in subparagraph
(a), Buyer may not assign or suffer an assignment of this Agreement and its
rights under this Agreement, without the prior written consent of Seller, which
consent Seller may deny in its sole and absolute discretion. Subject to the
foregoing limitations, this Agreement shall extend to, and shall bind, the
respective heirs, executors, personal representatives, successors and assigns
of Seller and Buyer.
19. Inspection Period.
(a) Right to Inspect. Buyer, and Buyer's agents and
representatives, shall have the right, from time to time, between the date of
this Agreement and December 24, 1996 ("Inspection Period"), during normal
business hours, to enter upon the Premises for the purpose of inspection of the
physical condition of the Premises (including a Phase I environmental
assessment report and a structural engineering report), testing of machinery
and equipment, taking of measurements and generally for the reasonable
ascertainment of the physical condition of the Premises; provided, however,
that Buyer shall (i) give Seller at least two (2) business days prior written
notice of the time and place of such entry and permit a representative of
Seller to accompany Buyer; (ii) restore any damage to the Premises or any
adjacent property caused by such actions; (iii) indemnify, defend and save
Seller and, as the case may be, its partners, trustees, shareholders,
directors, officers, employees and agents harmless of and from any and all
liabilities which Seller and its partners, trustees, shareholders, directors,
officers, employees and agents may suffer by reason of such entry and such
activities; (iv) not enter into any tenant's leased premises or communicate
with any tenant without Seller's prior written consent; and (v) prior to entry
onto the Premises, furnish Seller with a certificate of general liability and
property damage insurance maintained by Buyer with single occurrence coverage
of at least $2,000,000 and naming Seller and its management agent as additional
insureds. All such inspection rights shall be subject to the rights of tenants
under the Existing Leases.
-18-
21
(b) No Liens Permitted. Nothing contained in this Agreement
shall be deemed or construed in any way as constituting the consent or request
of Seller, express or implied by inference or otherwise, to any party for the
performance of any labor or the furnishing of any materials to the Premises or
any part thereof, nor as giving Buyer any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials
that would give rise to the filing of any liens against the Premises or any
part thereof.
(c) Right of Termination. If Buyer determines that it is not
satisfied with any aspect of the condition of the Premises as a result of
Buyer's inspection (including, without limitation, the deliveries by Seller
pursuant to Section 11), Buyer shall have the right to terminate this agreement
by giving Seller written notice ("Termination Notice") on or prior to the end
of the Inspection Period. Upon giving the Termination Notice, except as set
forth in the following sentence, this Agreement shall immediately terminate
(except for the indemnity obligations of Buyer to Seller under this Agreement
which shall survive termination of this Agreement) and the Deposit shall be
returned to Buyer, as Buyer's sole and exclusive remedy. The Termination Notice
may set forth the reason for such termination and Buyer's suggested method,
timing, cost and means to cure such deficiencies, and in the event the
Termination Notice sets forth the reason for such termination, this Agreement
shall not be immediately terminated if Seller shall have given, at Seller's
option within ten (10) days after Seller's receipt of the Termination Notice,
written notice to Buyer that Seller elects to cure such specified items and
Seller shall have the right to postpone the Closing Date up to thirty (30) days
to effectuate such cure. Buyer's failure to deliver the Termination Notice on
or before the expiration of the Inspection Period shall be deemed a waiver of
Buyer's right to terminate this Agreement under this Section 19 or by reason of
the physical condition of the Premises.
20. Condemnation.
(a) Immaterial Taking. If any part of the Premises shall be
taken by exercise of the power of eminent domain after the date of this
Agreement and such taking (i) does not materially interfere with the use of the
Premises for the purposes for which it is currently used or (ii) does not have
a material adverse affect on the income from the Premises, this Agreement shall
continue in full force and effect and there shall be no abatement of the
Purchase Price. Seller shall be relieved, however, of its duty to convey title
to the portion so taken, but Seller shall, on the Closing Date, assign to Buyer
all rights and claims to any awards arising therefrom as well as any money
theretofore received by Seller on account thereof, net of any expenses to
Seller, including attorney's fees of collecting the same. Seller shall promptly
furnish Buyer with a copy of the declaration of taking property after Seller's
receipt thereof.
-19-
22
(b) Material Taking. If any such taking of a portion of the
Premises materially interferes with the use of the Premises for the purposes
for which it is currently used or has a material adverse affect on the income
from the Premises, either Seller or Buyer may terminate this Agreement by
written notice to the other party. Upon the giving of such termination notice,
this Agreement shall become null and void except for the indemnity obligations
of Buyer to Seller set forth in this Agreement which will survive termination
of this Agreement, and all executed counterparts of this Agreement shall be
returned to Seller.
21. Brokers. Buyer represents and warrants to Seller that Buyer has
dealt with no broker or other intermediary in connection with this transaction
or the Premises other than MidAmerican Real Estate and ▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇▇▇
(collectively, the "Disclosed Broker"). If any broker or other intermediary
other than the Disclosed Broker claims to have dealt with Buyer in connection
with this transaction or the Premises, to have introduced the Premises to Buyer
for sale, or to have been the inducing cause to the sale, Buyer shall
indemnify, defend and save Seller harmless of and from any claim for commission
or compensation by such broker or other intermediary. In consideration of the
foregoing, Seller agrees to pay all brokerage commissions due to the Disclosed
Broker if, as and when closing of the sale of the Premises is completed, and
Buyer shall have no liability or obligation in connection therewith.
22. CONDITION OF PREMISES.
(A) NO WARRANTIES. THE ENTIRE AGREEMENT BETWEEN THE SELLER AND
BUYER WITH RESPECT TO THE PREMISES AND THE PERSONAL PROPERTY AND THE SALE
THEREOF IS EXPRESSLY SET FORTH IN THIS AGREEMENT. THE PARTIES ARE NOT BOUND BY
ANY AGREEMENTS, UNDERSTANDINGS, PROVISIONS, CONDITIONS, REPRESENTATIONS OR
WARRANTIES (WHETHER WRITTEN OR ORAL AND WHETHER MADE BY SELLER OR ANY AGENT,
EMPLOYEE OR PRINCIPAL OF SELLER OR ANY OTHER PARTY) OTHER THAN AS ARE EXPRESSLY
SET FORTH AND STIPULATED IN THIS AGREEMENT. WITHOUT IN ANY MANNER LIMITING THE
GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT IT AND ITS REPRESENTATIVES
HAVE FULLY INSPECTED THE PREMISES, THE PERSONAL PROPERTY, THE EXISTING LEASES
AND ASSIGNED EXISTING AGREEMENTS, OR WILL BE PROVIDED WITH AN ADEQUATE
OPPORTUNITY TO DO SO, ARE OR WILL BE FULLY FAMILIAR WITH THE FINANCIAL AND
PHYSICAL (INCLUDING WITHOUT LIMITATION, ENVIRONMENTAL) CONDITION THEREOF, AND
THAT THE PREMISES, THE PERSONAL PROPERTY, THE EXISTING LEASES AND ASSIGNED
EXISTING AGREEMENTS HAVE BEEN PURCHASED BY BUYER IN AN "AS IS" AND "WHERE IS"
CONDITION AND WITH ALL EXISTING DEFECTS AS A RESULT OF SUCH INSPECTIONS AND
INVESTIGATIONS AND NOT IN RELIANCE ON ANY AGREEMENT, UNDERSTANDING, CONDITION,
WARRANTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR REPRESENTATION MADE BY
SELLER OR ANY AGENT, EMPLOYEE OR PRINCIPAL OF SELLER OR ANY OTHER PARTY (EXCEPT
AS EXPRESSLY ELSEWHERE PROVIDED IN THIS AGREEMENT)
-20-
23
AS TO THE FINANCIAL OR PHYSICAL (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL)
CONDITION OF THE PREMISES OR THE PERSONAL PROPERTY OR THE AREAS SURROUNDING
THE PREMISES, AS TO ANY MATTER, INCLUDING WITHOUT LIMITATION AS TO ANY
PERMITTED USE THEREOF, THE ZONING CLASSIFICATION THEREOF OR COMPLIANCE THEREOF
WITH FEDERAL, STATE OR LOCAL LAWS, AS TO THE INCOME OR EXPENSE IN CONNECTION
THEREWITH, OR AS TO ANY OTHER MATTER IN CONNECTION THEREWITH. BUYER
ACKNOWLEDGES THAT NEITHER SELLER, OR ANY AGENT OR EMPLOYEE OF SELLER NOR ANY
OTHER PARTY ACTING ON BEHALF OF SELLER HAS MADE OR SHALL BE DEEMED TO HAVE
MADE ANY SUCH AGREEMENT, CONDITION, REPRESENTATION OR WARRANTY EITHER
EXPRESSED OR IMPLIED, EXCEPT FOR THE REPRESENTATIONS OF SELLER, IF ANY,
EXPRESSLY SET FORTH IN THIS AGREEMENT. THIS PARAGRAPH SHALL SURVIVE CLOSING,
AND SHALL BE DEEMED INCORPORATED BY REFERENCE AND MADE A PART OF ALL DOCUMENTS
DELIVERED BY SELLER TO BUYER IN CONNECTION WITH THE SALE OF THE PREMISES AND
THE PERSONAL PROPERTY.
(b) CHANGE OF CONDITIONS. BUYER SHALL ACCEPT THE PREMISES AND
THE PERSONAL PROPERTY AT THE TIME OF CLOSING IN THE SAME CONDITION AS THE SAME
ARE AS OF THE END OF THE INSPECTION PERIOD, AS SUCH CONDITION SHALL HAVE
CHANGED BY REASON OF WEAR AND TEAR, DAMAGE BY FIRE OR OTHER CASUALTY. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, BUYER SPECIFICALLY ACKNOWLEDGES THAT
THE FACT THAT ANY PORTION OF THE PREMISES OR THE PERSONAL PROPERTY OR ANY
EQUIPMENT OR MACHINERY THEREIN OR ANY PART THEREOF MAY NOT BE IN WORKING ORDER
OR CONDITION AT THE CLOSING DATE BY REASON OF WEAR AND TEAR OR DAMAGE BY FIRE
OR OTHER CASUALTY, OR BY REASON OF ITS PRESENT CONDITION, SHALL NOT RELIEVE
BUYER OF ITS OBLIGATION TO COMPLETE CLOSING UNDER THIS AGREEMENT AND PAY THE
FULL PURCHASE PRICE.
(c) Condition of Delivery. Seller has no obligation to deliver
the Premises in a "broom clean" condition if it is currently not in "broom
clean" condition, and at closing Seller may leave in the Premises all items of
personal property and equipment, partitions and debris as are now presently
therein.
(d) Seller Repairs. Between the date of the execution of this
Agreement and the Closing Date, Seller shall perform all customary repairs to
the Premises and the Personal Property as Seller has customarily previously
performed to maintain them in the same condition as they are as of the date of
the end of the Inspection Period, as said condition shall be changed by wear
and tear, damage by fire or other casualty.
(e) RELEASE. WITHOUT LIMITING THE PROVISIONS OF SUBPARAGRAPH
(a) ABOVE AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, BUYER HEREBY RELEASES SELLER AND (AS THE CASE MAY BE) SELLER'S
OFFICERS, DIRECTORS, SHAREHOLDERS, TRUSTEES, PARTNERS, EMPLOYEES, MANAGERS AND
AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTIONS, LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEY'S FEES WHETHER THE SUIT IS
INSTITUTED OR NOT) WHETHER KNOWN OR
-21-
24
UNKNOWN, LIQUIDATED OR CONTINGENT (HEREINAFTER COLLECTIVELY CALLED THE
"CLAIMS") ARISING FROM OR RELATING TO (i) ANY DEFECTS, ERRORS OR OMISSIONS IN
THE DESIGN OR CONSTRUCTION OF THE PREMISES WHETHER THE SAME ARE THE RESULT OF
NEGLIGENCE OR OTHERWISE, OR (ii) ANY OTHER CONDITIONS, INCLUDING ENVIRONMENTAL
AND OTHER PHYSICAL CONDITIONS, AFFECTING THE PREMISES WHETHER THE SAME ARE A
RESULT OF NEGLIGENCE OR OTHERWISE. THE RELEASE SET FORTH IN THIS SECTION
SPECIFICALLY INCLUDES, WITHOUT LIMITATION, ANY CLAIMS UNDER ANY ENVIRONMENTAL
LAWS OF THE UNITED STATES, THE STATE IN WHICH THE PREMISES IS LOCATED OR ANY
POLITICAL SUBDIVISION THEREOF OR UNDER THE AMERICANS WITH DISABILITIES ACT OF
1990, AS ANY OF THOSE LAWS MAY BE AMENDED FROM TIME TO TIME AND ANY
REGULATIONS, ORDERS, RULES OF PROCEDURES OR GUIDELINES PROMULGATED IN
CONNECTION WITH SUCH LAWS, REGARDLESS OF WHETHER THEY ARE IN EXISTENCE ON THE
DATE OF THIS AGREEMENT. BUYER ACKNOWLEDGES THAT BUYER HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL OF BUYER'S SELECTION AND BUYER IS GRANTING THIS
RELEASE OF ITS OWN VOLITION AND AFTER CONSULTATION WITH BUYER'S COUNSEL. THIS
PARAGRAPH SHALL NOT APPLY TO ANY BREACH OF ANY REPRESENTATION BY SELLER UNDER
THIS AGREEMENT.
(f) Seller Reports. Buyer acknowledges that Seller makes no
warranties or representations regarding the adequacy, accuracy or completeness
of Seller's environmental and engineering reports (collectively the "Reports")
or other documents relating to the Reports, and Buyer shall have no claim
against Seller based upon the Reports or such other documents relating to the
Reports. Buyer further acknowledges that Buyer has had full opportunity to
perform such environmental and engineering investigations as Buyer deems
appropriate prior to entering into this Agreement or shall have such
opportunity during the Inspection Period, and Buyer obtained or shall obtain
its own environmental and engineering reports of the Premises. If no Event of
Seller Default has occurred, Buyer agrees to provide Seller, upon the Closing
Date or within ten (10) days after termination of this Agreement, with copies
of all environmental and engineering reports ordered by Buyer with respect to
the Premises.
(g) Effect of Disclaimers. Buyer acknowledges and agrees that
the Purchase Price has been negotiated to take into account that the Premises
and Personal Property are being sold subject to the provisions of Section 22 of
this Agreement and that Seller would have charged a higher purchase price if
the provisions in this Section 22 were not agreed upon by Buyer.
23. Survival of Provisions.
(a) Acceptance by Buyer of the Deed at closing shall constitute
an acknowledgment by Buyer of full performance by Seller of all of Seller's
obligations under this Agreement.
(b) Buyer's obligations under this Agreement as shall possibly
imply performance or observance after the Closing
-22-
25
Date shall survive closing, notwithstanding any presumption to the contrary;
without in any manner limiting the generality of the foregoing provisions of
this sentence, the obligations of Buyer under Paragraphs 5(c), 6(a), 6(b),
9(b), l9(a), 21, and 22(e) above shall survive closing. Notwithstanding any
provision to the contrary set forth in this Agreement, the warranties and
representations of Buyer set forth in Sections 12(a) and 12(b) shall not
survive closing.
(c) (i) Notwithstanding any provision to the contrary set
forth in this Agreement, the warranties and representations of Seller set forth
in Sections 5(a), 9(a), lO(a)(iv) but only with respect to the Existing Leases
of or which a Tenant Estoppel Certificate is not delivered, and l0(a)(v) (all
herein called the "Surviving Warranties") shall survive closing under this
Agreement for a period of only six (6) months, and the warranties and
representations of Seller set forth in Sections l0(a)(i), l0(a)(ii),
l0(a)(iii), and l0(a)(iv) with respect to Existing Leases for which a Tenant
Estoppel Certificate is delivered (all herein called the "Non-Surviving
Warranties") shall not survive closing.
(ii) If Buyer determines that any of the Surviving
Warranties or any of the Non-Surviving Warranties are breached prior to the
Closing Date, Buyer's sole right and remedy shall be to terminate this
Agreement by giving to Seller written notice of such termination prior to the
closing. If Buyer fails to give such written termination notice to Seller
within such time period, Buyer shall be deemed to have waived any right or
remedy (including, without limitation, any right under this Agreement to
terminate this Agreement) against Seller by reason of the breach of such
warranty.
(iii) Seller shall have no liability to Buyer by reason
of a breach or default of any of the Surviving Warranties, unless Buyer shall
have given to Seller written notice ("Warranty Notice") of such breach or
default within twelve (12) months of the Closing Date, and shall have given to
Seller an opportunity to cure any such breach or default within a reasonable
period of time after Buyer's learning of such breach of warranty. In no event
shall Seller's liability to Buyer by reason of a breach or default of any of
the Surviving Warranties exceed the total aggregate amount of $1,630,000.00.
Any litigation to enforce any Surviving Warranty must be commenced within three
(3) months from the date of the Warranty Notice, and if not commenced within
such time period, Buyer shall be deemed to have waived its claims for such
breach or default.
(iv) Buyer shall, prior to the Closing Date, make its
own independent investigation and determination as to the truth and accuracy of
the Non-Surviving Warranties. If Buyer shall complete closing under this
Agreement, Buyer shall be deemed to have conclusively determined that the
Non-Surviving Warranties are true and correct, and Buyer shall be deemed to
-23-
26
have waived any claim against Seller by reason of a breach of any of the
Non-Surviving Warranties. If Buyer shall determine on or prior to the Closing
Date that any of the Non-Surviving Warranties shall have been breached or are
in default, Buyer's sole right and remedy shall be to terminate this Agreement
by written notice to Seller on or before the Closing Date. In the event Buyer
terminates this Agreement pursuant to any of the provisions set forth above in
this subparagraph, this Agreement shall be and become null and void (except
the indemnity obligations of Buyer to Seller set forth in this Agreement shall
survive the termination of this Agreement), neither Buyer nor Seller shall
have any further rights nor obligations hereunder, the Deposit shall be
returned to Buyer and all copies of this Agreement shall be returned to
Seller.
24. Miscellaneous.
(a) Captions or Headings; Interpretation. The captions or
headings of the Paragraphs and subparagraphs of this Agreement are for
convenience only, and shall not control or affect the meaning or construction
of any of the terms or provisions of this Agreement. Wherever in this Agreement
the singular number is used, the same shall include the plural and vice versa
and the masculine gender shall include the feminine gender and vice versa as
the context shall require.
(b) Amendments and Waivers. No change, alteration, amendment,
modification or waiver of any of the terms or provisions of this Agreement
shall be valid, unless the same shall be in writing and signed by Buyer and
Seller.
(c) No Rule of Construction. This Agreement has been negotiated
at arms length by both Seller and Buyer, and no rule of construction shall be
invoked against either party with respect to the authorship thereof or of any
of the documents to be delivered by the respective parties at the closing.
(d) Counterparts. This Agreement may be executed in multiple
counterparts each of which shall be deemed an original but together shall
constitute one agreement.
(e) Applicable Law. This Agreement shall be governed and
construed according to the laws of the State of Illinois.
(f) Right to Waive Conditions or Contingency. Either party may
waive any of the terms and conditions of this Agreement made for its benefit
provided such waiver is in writing and signed by the party waiving such term or
condition.
(g) Partial Invalidity. If any term, covenant, condition or
provision of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable, at any time or to any extent,
the remainder of
-24-
27
this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby. Each term, covenant, condition and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
law.
(h) Confidentiality. Seller and Buyer agree to keep this
Agreement confidential and not make any public announcements or disclosures
with respect to the subject matter of this Agreement without the written
consent of the other party. This provision shall survive Closing.
(i) Agreement Not To Be Recorded. This Agreement shall not be
filed of record by or on behalf of Buyer in any office or place of public
record. If Buyer fails to comply with the terms hereof by recording or
attempting to record this Agreement or a notice thereof, such act shall not
operate to bind or cloud the title to the Premises. Seller shall, nevertheless,
have the right forthwith to institute appropriate legal proceedings to have the
same removed from record. If Buyer or any agent, broker or counsel acting for
Buyer shall cause or permit this Agreement or a copy thereof to be filed in an
office or place of public record, Seller, at its option, and in addition to
Seller's other rights and remedies, may treat such act as a default of this
Agreement on the part of Buyer. However, the filing of this Agreement in any
lawsuit or other proceedings in which such document is relevant or material
shall not be deemed to be a violation of this Paragraph.
(j) Waiver of Tender of Deed and Purchase Monies. The tender of
an executed Deed by Seller and the tender by Buyer of the portion of the
Purchase Price payable at closing are hereby mutually waived; but nothing
herein contained shall be construed as a waiver of Seller's obligation to
deliver the Deed and/or of the concurrent obligation of Buyer to pay the
Purchase Price payable at closing.
(k) Time of the Essence. Time, wherever specified herein for
the performance by Seller or Buyer of any of their respective obligations
hereunder, is hereby made and declared to be of the essence of this Agreement.
(l) SEC Audit Requirement. Seller acknowledges that Buyer has
advised Seller that Buyer is required by the applicable regulations of the
Securities and Exchange Commission to obtain an audit of the operation of the
Premises prior to the acquisition of the Premises, that Buyer will obtain the
audit from KMPG Peat Marwick and that Seller or the property manager for the
Premises for Seller will be required to represent to such auditor to the effect
that the books and records for the Premises "fairly and accurately represent in
all material respects the operation of the Premises." Seller will provide to
such auditor a representation to such effect reasonably acceptable to Seller
and such auditor; Buyer waives any claim against Seller or the
-25-
28
property manager for the Premises for Seller if such representation is not true
or correct.
25. ERISA. Seller and Buyer hereby agree that if the transactions
contemplated by this Agreement are non-exempt prohibited transactions under
Section 406 of ERISA Seller shall not be obligated to sell the Premises to
Buyer. Within five (5) days from the date of this Agreement, Buyer shall
provide to Seller all information on the ownership of Buyer necessary or
desirable to enable Seller to determine whether the sale of the Premises will
be a non-exempt prohibited transaction. If Buyer fails to provide such
information, or if such information provided to Seller indicates, in Seller's
reasonable judgment, that the transactions contemplated hereby are, or raises a
material question whether it may be, prohibited under the foregoing provisions
of ERISA, Seller may, at its option exercised within ten (10) business days
after receipt of all such information from Buyer requested by Seller, terminate
this Agreement by written notice thereof to Buyer, whereupon Buyer shall be
entitled to the return of the Deposit, and upon such termination and return of
the Deposit, Buyer and Seller shall thereafter have no further liability or
obligations hereunder, or otherwise, and this Agreement shall be deemed of no
further force or effect, except that the indemnity obligations of Buyer to
Seller set forth in this Agreement shall survive such termination.
26. Limited Liabilitv. The obligations of Seller under this
Agreement or directly or indirectly arising out of this Agreement shall be
limited solely to Seller's interest in the Premises and Personal Property, and
neither Buyer nor any one else claiming by or through Buyer shall have any
claim against any other asset of Seller or any partner of Seller.
IN WITNESS WHEREOF, the parties hereto, intending legally to be
bound hereby, have executed this Agreement as of the date first above written.
SELLER: BUYER:
------- ------
LANSING SQUARE RPFII LIMITED INLAND REAL ESTATE
PARTNERSHIP, CORPORATION,
a Delaware limited partnership a Maryland corporation
By: Lansing Square RPFII Realty
Corporation, its general By:
partner --------------------
Name:
Title:
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-26-
29
property manager for the Premises for Seller if such representation is not true
or correct.
25. ERISA. Seller and Buyer hereby agree that if the transactions
contemplated by this Agreement are non-exempt prohibited transactions under
Section 406 of ERISA Seller shall not be obligated to sell the Premises to
Buyer. Within five (5) days from the date of this Agreement, Buyer shall
provide to Seller all information on the ownership of Buyer necessary or
desirable to enable Seller to determine whether the sale of the Premises will
be a non-exempt prohibited transaction. If Buyer fails to provide such
information, or if such information provided to Seller indicates, in Seller's
reasonable judgment, that the transactions contemplated hereby are, or raises a
material question whether it may be, prohibited under the foregoing provisions
of ERISA, Seller may, at its option exercised within ten (10) business days
after receipt of all such information from Buyer requested by Seller, terminate
this Agreement by written notice thereof to Buyer, whereupon Buyer shall be
entitled to the return of the Deposit, and upon such termination and return of
the Deposit, Buyer and Seller shall thereafter have no further liability or
obligations hereunder, or otherwise, and this Agreement shall be deemed of no
further force or effect, except that the indemnity obligations of Buyer to
Seller set forth in this Agreement shall survive such termination.
26. Limited Liability. The obligations of Seller under this
Agreement or directly or indirectly arising out of this Agreement shall be
limited solely to Seller's interest in the Premises and Personal Property, and
neither Buyer nor any one else claiming by or through Buyer shall have any
claim against any other asset of Seller or any partner of Seller.
IN WITNESS WHEREOF, the parties hereto, intending legally to be bound
hereby, have executed this Agreement as of the date first above written.
SELLER: BUYER:
------- ------
LANSING SQUARE RPFII LIMITED INLAND REAL ESTATE
PARTNERSHIP, CORPORATION,
a Delaware limited partnership a Maryland corporation
By: Lansing Square RPFII Realty
Corporation, its general By:[signature]
partner ---------------------
Name:
By: Title: Agent
----------------------------
Name:
Title:
-26-
30
EXHIBIT "A"
-----------
LEGAL DESCRIPTION OF PREMISES
-----------------------------
THE NORTH HALF OF THE SOUTH HALF OF THE
SOUTHWEST QUARTER (EXCEPT THE EAST 20 ACRES
THEREOF) OF ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇ OF THE THIRD PRINCIPAL MERIDIAN,
IN ▇▇▇▇ COUNTY, ILLINOIS, (EXCEPT THOSE PARTS
TAKEN OR DEDICATED FOR STREETS AND HIGHWAYS),
IN ▇▇▇▇ COUNTY, ILLINOIS.
31
EXHIBIT "B"
-----------
LIST OF PERSONAL PROPERTY
-------------------------
1. Miscellaneous Christmas Decorations
32
EXHIBIT "C"
-----------
TITLE OBJECTIONS
----------------
1. Taxes and assessments which are a lien, but which are not yet billed,
or are billed but are not yet due and payable.
2. Any laws, regulations or ordinances (including, but not limited to,
zoning, building and environmental matters) as to the use, occupancy,
subdivision or improvement of the Premises adopted or imposed by any
governmental agency.
3. State of facts which are shown on the Survey to which no objection is
made in the Title Notice.
4. Easements pursuant to the document recorded as number 91678318.
5. Easements pursuant to the document recorded as number 91492119.
33
EXHIBIT "D"
LIST OF EXISTING LEASES
-----------------------
1. Lease Agreement dated June 25, 1995 between Lansing Square RPFII
Limited Partnership and Ameritech Mobile Communications, Inc.
2. Lease Agreement dated August 18, 1995 between Lansing Square RPFII
Limited Partnership and Baby Superstore, Inc.
3. Lease Agreement dated September 20, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Blockbuster Videos, Inc., as amended by Amendment dated
December 12, 1991 and Second Amendment dated November 22, 1996, as
assigned to Lansing Square RPFII Limited Partnership.
4. Lease Agreement dated September 16, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Prima Limited Partnership d/b/a Cost Cutters, as
amended by Letter Agreement dated April 19, 1996, and as assigned to
Lansing Square RPFII Limited Partnership.
5. Lease Agreement dated May 1, 1996 between Lansing Square RPFII Limited
Partnership and ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.
6. Lease Agreement dated August 28, 1995 between Lansing Square RPFII
Limited Partnership and M&M Bagels, Inc.
7. Lease Agreement dated May 29, 1996 between Lansing Square RPFII Limited
Partnership and Little Minds, Inc.
8. Lease Agreement dated September 7, 1993 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Norwest Financial, Inc., as assigned to Lansing Square
RPFII Limited Partnership.
9. Lease Agreement dated February 7, 1992 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Gayapri, Inc., as assigned to Lansing Square RPFII
Limited Partnership.
10. Lease Agreement dated October 20, 1996 between Lansing Square RPFII
Limited Partnership and Happiness is Pets of Lansing, Inc.
11. Lease Agreement dated October 21, 1996 between Lansing Square RPFII
Limited Partnership and Paulan Properties d/b/a ▇▇▇▇ ▇▇▇▇▇ Pizza.
12. Lease Agreement dated July 23, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and OfficeMax, Inc., as amended by First Amendment to Lease
dated November 15, 1995, and as assigned to Lansing Square RPFII
Limited Partnership.
Page 1 of 2
34
13. Lease Agreement dated May 29, 1992 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Pappy's Inc., as amended by an Assignment & Assumption
of Lease dated June 8, 1995, and as assigned to Lansing Square RPFII
Limited Partnership.
14. Lease Agreement dated August 18, 1995 between Lansing Square RPFII
Limited Partnership and Racers Row, Ltd.
15. Lease Agreement dated January 29, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Sterling Visions Shops, Inc., as assigned to Lansing
Square RPFII Limited Partnership.
16. Lease Agreement dated November 1, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited
Partnership and Wolf Camera, Inc., as assigned to Lansing Square RPFII
Limited Partnership.
17. Lease dated January 29, 1991 between ▇▇ ▇▇▇▇▇▇▇ Limited Partnership and
PACE Membership Warehouse, Inc., as amended by First Amendment dated
July 24, 1991 and by Second Amendment dated May 13, 1991, as assigned
by Assignment and Assumption of Lease; Right of First Refusal (undated)
between PACE Membership Warehouse, Inc. and Wal-Mart Stores, Inc. and
pursuant to Notice of Assignment dated September 13, 1996, as assigned
to Lansing Square RPFII Limited Partnership.
Page 2 of 2
35
EXHIBIT "E"
List of Existing Agreements
1. Monitoring Agreement dated February 9, 1995 between Pyramid Alarm,
Inc. and Lansing Square RPFII Limited Parternship (Blockbuster, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇).
2. Monitoring Agreement dated February 9, 1995 between Pyramid Alarm,
Inc. and Lansing Square RPFII Limited Partnership (Building A, ▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇).
3. Monitoring Agreement dated February 9, 1995 between Pyramid Alarm,
Inc. and Lansing Square RPFII Limited Partnership (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇).
4. Service Contract dated September 19, 1996 between ▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇▇▇
Property Management Company and Arctic Snow & Ice Control, Inc.
5. Parking Lot Sweeping and Site Maintenance Contract dated April 30,
1996 between ▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇▇▇ Property Management Company, Inc. and
Professional Cleaning Co., Inc.
6. Contingent Fee Agreement dated September 24, 1996 between Lansing Square
RPFII Limited Partnership and O'Keefe, Ashenden, ▇▇▇▇▇ & ▇▇▇▇.
7. Service Agreement (undated) between Lansing Square RPFII Limited
Partnership and Homewood Disposal Service, Inc.
36
EXHIBIT "F"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as
of this __________ day of December, 1996, by LANSING SQUARE RPFII LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), and ____________
("Assignee").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's interest in
and to those leases set forth on Exhibit A hereto (the "Leases") and those
contracts set forth on Exhibit B hereto (the "Contracts").
2. Assignee hereby accepts the assignment set forth in Section 1 hereof
and hereby agrees to assume all of Assignor's obligations under the Leases and
the Contracts, and shall perform, discharge, fulfill and observe all terms,
obligations, covenants, conditions and provisions of landlord or assignor, as
the case may be, in each case arising from or after the date hereof.
3. Assignee agrees to save and hold Assignor harmless from any and all
expenses, charges, claims and liabilities (including without limitation
reasonable attorneys' fees) incurred by Assignor arising under the Leases or
the Contracts as a result of any action or omission of Assignee from and after
the date hereof.
4. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee and their respective successors and assigns.
5. This Assignment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and all the same instrument.
IN WITNESS WHEREOF, the parties have executed this Assignment on this
the day and date first above written.
ASSIGNOR ASSIGNEE
LANSING SQUARE RPFII [NAME]
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LANSING SQUARE RPFII REALTY
CORPORATION, a Delaware By:
corporation, General Partner -------------------------
Name:
By: Title:
--------------------------
Name:
Title:
Exhibit A -- List of Existing Leases
Exhibit B -- List of Existing Agreements
37
EXHIBIT "G"
Tenants for Which Tenant Estoppel Certificates are Required
1. Sam's Wholesale Club #6489
2. Office Max, Inc. #064/Furniture Max
3. Baby Superstore, Inc.
4. Blockbuster Videos
5. Tenants under other Existing Leases for not less than
15,200 square feet of space
38
EXHIBIT "H"
TENANT ESTOPPEL CERTIFICATE
To: _______________________ ("Landlord")
and
_______________________ ("Buyer")
Re: Property Address:____________________________
Lease Date:__________________________________
Between ________________________, Landlord and
___________________________, Tenant
Square Footage Leased:_______________________
Suite No.:___________________________________
Floor:_______________________________________
The undersigned Tenant under the above-referenced lease ("Lease"),
certifies to Landlord and Buyer the following:
1) The above-described lease has not been cancelled, modified,
assigned, extended or amended except _______________________.
2) Rent has been paid to the first day of the current month and all
additional rent has been paid and collected in a current manner.
There is no prepaid rent except $ _________, and the amount of the
security deposit is $____________________ .
3) Tenant took possession of the leased premises on _______________,
199_ and commenced to pay rent on ________________, 199_. Rent is
currently payable in the amount of $____________ monthly exclusive
of Tenant's share of taxes and operating expenses.
4) The Lease terminates on __________, 199_ subject to any renewal
option(s) set forth in the Lease.
5) All work to be performed for Tenant under the Lease has been
performed as required and has been accepted by Tenant, except
______________________________.
6) The Lease is: (a) in full force and effect; (b) [to Tenant's actual
knowledge] free from default; and (c) [to Tenant's actual
knowledge] Tenant has no claims against the Landlord or offsets
against rent.
7) The undersigned has received no notice of prior sale, transfer or
assignment, hypothecation or pledge of the Lease or of the rents
received therein, except _______________________.
39
8) The undersigned has no other interest in any other part of the
building of which the premises form a part or to any personal
property appurtenant thereto or used in connection therewith
except _______________________.
9) The undersigned has no right or option pursuant to the said lease
or otherwise to purchase all or any part of the leased premises or
the building of which the leased premises are a part.
10) There are no other agreements written or oral between the
undersigned and the Landlord with respect to the Lease and/or the
leased premises and building.
11) The statements contained herein may be relied upon by the Landlord
and by any prospective purchaser of the property of which the
premises is a part and its mortgage lender.
If a blank in this document is not filled in, the blank will be deemed
to read "none".
If Tenant is a corporation, the undersigned signatory is a duly
appointed Officer of the corporation.
Dated this ___ day of _____________, 199 _ .
Tenant: _________________________________
By: _____________________________________
NOTE: TO THE EXTENT A TENANT LEASE DOES NOT REQUIRE A TENANT TO CERTIFY TO
CERTAIN OF THESE ITEMS, THOSE ITEMS NEED NOT BE INCLUDED IN SUCH
TENANT'S ESTOPPEL CERTIFICATE.
-4-
40
DEED IN TRUST - QUIT CLAIM EXHIBIT "I-1"
THIS INDENTURE, WITNESSETH,
THAT THE GRANTOR,
of the County of and
State of , for and in
consideration of the sum of
Dollars
($ ) in hand paid,
and of other good and valuable
considerations, receipt of
which is hereby duly
acknowledged,* convey and
QUIT-CLAIM unto AMERICAN
NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, a National (Reserved for Recorders Use Only)
Banking Association whose --------------------------------------
address is ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., *pursuant to authority given by the
Chicago, Illinois, as Trustee Board of Directors of said corporation
under the provisions of a
certain Trust Agreement
dated the day of , and known as Trust
Number , the following
described real estate
situated in
County, Illinois, to wit:
SEE ATTACHED LEGAL DESCRIPTION
Commonly Known As ___________________________________
Property Index Number _______________________________
TO HAVE AND TO HOLD the said real estate with the appurtenances, upon
the trusts, and for the uses and purposes herein and is said Trust Agreement
set forth.
THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE OF THIS
INSTRUMENT ARE MADE A PART HEREOF.
And the said grantor hereby expressly waive and release any
and all right or benefit under and by virtue of any and all statutes of the
State of Illinois, providing for exemption or homesteads from sale on execution
or otherwise.
In Witness Whereof, said Grantor has caused its corporate seal to be
hereto affixed, and has caused its name to be signed to these presents by its
____ President, and attested by its _______________ Secretary, this ________
day of __________, 19__.
__________________________________________________________
IMPRESS (NAME OF CORPORATION)
CORPORATE SEAL BY:
HERE ----------------------------------------------------------
PRESIDENT
ATTEST:
----------------------------------------------------------
SECRETARY
State of Illinois, County of _________ ss. I, the undersigned, a Notary
Public, in and for the County and State aforesaid, DO HEREBY CERTIFY,
that _________ personally known to me to be the ______________
President of the
corporation, and __________________ personally known to
me to be the ________________ Secretary of said corporation,
and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, appeared
before me this day in person and severally acknowledged that
as such _________ President and _____________ Secretary,
they signed and delivered the said instrument and caused the
corporate seal of said corporation to be affixed thereto,
pursuant to authority given by the Board of ____________ of
said corporation, as their free and voluntary act, and as
the free and voluntary act and deed of said corporation, for
the uses and purposes therein set forth.
Given under my hand and official seal, this _________ day of _____
19__.
Commission expires ________________ 19__ _________________________
NOTARY PUBLIC
Prepared By:
________________________________________________________________________________
American National Bank and Trust Company of Chicago
MAIL TO: Box 221
41
Full power and authority is hereby granted to said Trustee to improve,
manage, protect and subdivide said real estate or any part thereof, to dedicate
parks, streets, highways or alleys, to vacate any subdivision or part thereof,
and to resubdivide said real estate as often as desired, to contract to sell,
to grant options to purchase, to sell on any terms, to convey either with or
without consideration, to convey said real estate or any part thereof to a
successor or successors in trust and to grant to such successor or successors
in trust all of the title, estate, powers and authorities vested in said
Trustee, to donate, to dedicate, to mortgage, pledge or otherwise encumber said
real estate, or any part thereof, to lease said real estate, or any part
thereof, from time to time, in possession or reversion, by leases to commence
in present or in future, and upon any terms and for any period or periods of
time, not exceeding in the case of any single demise the term of 198 years,
and to renew or extend leases upon any terms and for any period or periods of
time and to amend, change or modify leases and the terms and provisions thereof
at any time or times hereafter, to contract to make leases and to grant options
to lease and options to renew leases and options to purchase the whole or any
part of the reversion and to contract respecting the manner of fixing the
amount of present or future rentals, to partition or to exchange said real
estate, or any part thereof, for other real or personal property, to grant
easements or charges of any kind, to release, convey or assign any right title
or interest in or about or easement appurtenant to said real estate or any
part thereof, and to deal with said real estate and every part thereof in all
other ways and for such other considerations as it would be lawful for any
person owning the same to deal with the same, whether similar to or different
from the ways above specified, at any time or times hereafter.
In no case shall any party dealing with said Trustee, or any successor
in trust in relation to said real estate, or to whom said real estate or any
part thereof shall be conveyed, contracted to be sold, leased or mortgaged by
said Trustee, or any successor in trust, be obliged to see to the application
of any purchase money, rent or money borrowed or advanced on said real estate,
or be obliged to see that the terms of this trust have been complied with, or
be obliged to inquire into the authority, necessity or expediency of any act
of said Trustee, or be obliged or privileged to inquire into any of the terms
of said Trust Agreement; and every deed, trust deed, mortgage, lease or other
instrument executed by said Trustee, or any successor in trust, in relation to
said real estate shall be conclusive evidence in favor of every person
(including the Registrar of Titles of said county) relying upon or claiming
under any such conveyance, lease or other instrument, (a) that at the time of
the delivery thereof the trust created by this Indenture and by said Trust
Agreement was in full force and effect, (b) that such conveyance or other
instrument was executed in accordance with the trusts, conditions and
limitations contained in this Indenture and in said Trust Agreement or in all
amendments thereof, if any, and binding upon all beneficiaries thereunder, (c)
that said Trustee, or any successor in trust, was duly authorized and empowered
to execute and deliver every such deed, trust deed, lease, mortgage or other
instrument and (d) if the conveyance is made to a successor or successors in
trust, that such successor or successors in trust have been properly appointed
and are fully vested with all the title, estate, rights, powers, authorities,
duties and obligations of its, his or their predecessor in trust.
This conveyance is made upon the express understanding and condition
that neither American National Bank and Trust Company of Chicago, individually
or as Trustee, nor its successor or successors in trust shall incur any
personal liability or be subjected to any claim, judgment or decree for anything
it or they or its or their agents or attorneys may do or omit to do in or about
the said real estate or under the provisions of this Deed or said Trust
Agreement or any amendment thereto, or for injury to person or property
happening in or about said real estate, any and all such liability being
hereby expressly waived and released. Any contract, obligation or indebtedness
incurred or entered into by the Trustee in connection with said real estate may
be entered into by it in the name of the then beneficiaries under said Trust
Agreement as their attorney-in-fact, hereby irrevocably appointed for such
purposes, or at the election of the Trustee, in its own name, as Trustee of an
express trust and not individually (and the Trustee shall have no obligation
whatsoever with respect to any such contract, obligation, or indebtedness
except only so far as the trust property and funds in the actual possession of
the Trustee shall be applicable for the payment and discharge thereof.) All
persons and corporations whomsoever and whatsoever shall be charged with notice
of this condition form the date of the filing for record of this Deed.
The interest of each and every beneficiary hereunder and under said
Trust Agreement and of all persons claiming under them or any of them shall be
only in the earnings, avails and proceeds arising from the sale or any other
disposition of said real estate, and such interest is hereby declared to be
personal property, and no beneficiary hereunder shall have any title or
interest, legal or equitable, in or to said real estate as such, but only an
interest in earnings, avails and proceeds thereof as aforesaid, the
intention hereof being to vest in said American National Bank and Trust Company
of Chicago the entire legal and equitable title in fee simple, in and to all of
the real estate above described.
If the title to any of the above real estate is now or hereafter
registered, the Registrar of Titles is hereby directed not to register or note
in the certificate of title or duplicate thereof, or memorial, the words "in
trust," or "upon condition," or "with limitations," or words of similar
import, in accordance with the statute in such case made and provided.
42
EXHIBIT "I-2"
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE is made as of the __ day of __________, 199_, from,
LANSING SQUARE RPFII LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller"), to _____________________, a _________________ ("Buyer").
RECITALS:
WHEREAS, contemporaneously with the execution and delivery of this ▇▇▇▇
of Sale, Seller has sold and conveyed to Buyer all of Seller's right, title and
interest and estate in and to the real property described in Exhibit "A"
attached hereto and made a part hereof and all buildings, structures and
improvements located thereon by Special Warranty Deed of even date herewith
(all of such buildings, structures, improvements and real property collectively
hereinafter referred to as the "Real Property"); and
WHEREAS, as a part of the consideration for the conveyance of the Real
Property, Seller has agreed to convey to Buyer the items of personal property
described below which are owned by Seller and located in, on and used in
connection with, the Real Property;
NOW THEREFORE, in consideration of the sum of $10.00 and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller does hereby (a) sell, assign, and convey to Buyer all the
personal property described on Exhibit "B" (whether or not any of the items
listed on Exhibit "B" constitute "personal property" or "fixtures" as a matter
of state law) attached hereto and incorporated herein by reference
(collectively the "Personal Property"), and (b) quit claim and release to
Buyer, to the extent existing and assignable, Seller's right, title and
interest (if any) in the trade names, plans and specifications, construction
warranties and guaranties, tenant records, and like personal property, in the
possession of Seller which directly relate to the Real Property, subject in
both cases to matters of public record and to rights of tenants under written
leases in effect on the date hereof.
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns,
forever, and Seller hereby specially warrants title to the Personal Property
listed on Exhibit "B" subject to matters of public record including, without
limitation, the lien held by _____________________.
This ▇▇▇▇ of Sale shall be binding upon and shall inure to the benefit
of Seller, Buyer and their respective successors and assigns.
This ▇▇▇▇ of Sale shall be governed by and construed in accordance with
the laws of the State of ________________.
43
NOTWITHSTANDING ANYTHING CONTAINED IN THIS ▇▇▇▇ OF SALE TO THE
CONTRARY, THIS ▇▇▇▇ OF SALE IS SUBJECT TO ALL DISCLAIMERS AND QUALIFICATIONS BY
SELLER AND ALL ENCUMBRANCES SET FORTH IN THE AGREEMENT OF SALE DATED ________,
199_ WITH RESPECT TO THE PERSONAL PROPERTY, AND SUCH DISCLAIMERS,
QUALIFICATIONS AND ENCUMBRANCES ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND
MADE A PART HEREOF.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be duly
signed as of the day and year first written above.
LANSING SQUARE RPFII LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Lansing Square RPFII Realty
Corp., a Delaware corporation,
General Partner
By:____________________________
Name:__________________________
Title:_________________________
44
EXHIBIT "J"
FIRPTA CERTIFICATION
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by ___________ ("Transferor"),
the undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. taxpayer identification number is ___________; and
3. Transferor's office address is:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 7900
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Transferor understands that the above information may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
instrument and to the best of my knowledge and belief it is true, correct, and
complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
-----------------------
Name:
Title:
Dated:
----------------------------
45
EXHIBIT "K"
TENANT LETTER
______________, 199_
To The Tenants:
Re:_________________________ ("Premises")
_________________________
Dear Tenant:
_________________ ("Buyer") has purchased the Premises from the
undersigned owner ("Seller").
Seller has transferred your security and/or deposit (if any) (the
"Security Deposit") to Buyer. Buyer has assumed full responsibility for the
Security Deposit including the return of the Security Deposit to you at the
time and upon the conditions set forth in your lease.
All rental and other payments that become due under your lease
subsequent to the date hereof should be payable to Buyer and sent to
____________ as Buyer's management agent, at the following address:
-----------------------------
-----------------------------
Very truly yours,
SELLER:
LANSING SQUARE RPFII LIMITED
PARTNERSHIP, a Delaware partnership
By: Lansing Square RPFII Realty
Corporation, a Delaware
corporation, its general
partner
By:
-------------------------------
Vice President
BUYER:
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------