AGREEMENT TO PURCHASE
THIS AGREEMENT is made this day of June, 1997, by and between JMB
INCOME PROPERTIES, LTD.-XIII, an Illinois limited partnership,
("Seller") and INLAND REAL ESTATE CORPORATION, a Maryland corporation,
("Purchaser").
RECITALS:
A. Seller is the fee owner of that certain Shopping Center
("Improvements") commonly known as "Rivertree Court Shopping Center"
located at Illinois Routes 21 and 60 in the Village of ▇▇▇▇▇▇ Hills,
County of Lake, State of Illinois, and legally described in Exhibit
"A", attached hereto (the "Real Property").
B. Seller desires to sell and Purchaser desires to purchase, the
Property (as hereinafter defined) upon and subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used herein, the following terms shall
have the respective meanings set forth opposite each term:
Agreement: This Agreement to Purchase, including
the Exhibits attached hereto which are
by this reference incorporated herein
and made a part hereof.
Closing Date: July 15, 1997, or as extended by the
mutual agreement of the Purchaser and
Seller or subject to extension of up to
thirty (30) days pursuant to Section
4.5(b)(viii).
Closing: The consummation of this Agreement.
Deed: That certain recordable Special Warranty
Deed to be executed by Seller and
delivered by Seller to Purchaser at the
Closing, conveying the Real Property to
Purchaser (or to Purchaser's designee)
subject only to the Permitted Title
Exceptions.
Deposit: The sum of ONE HUNDRED FIFTY THOUSAND AND
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NO/100 DOLLARS($150,000.00) which shall
be deposited by Purchaser with Title
Insurer pursuant to the terms of a
standard Joint Order Escrow modified to
conform to the terms hereof relating to
Inspection Period, within one business
day after Seller's acceptance hereof, at
Title Insurer's office in Chicago,
Illinois, to be held in an interest
bearing account as ▇▇▇▇▇▇▇ money subject
to the terms of this Agreement. All
interest earned thereon shall be
included in this definition.
Leases: Those leases for rental of retail space
in the Improvements listed on Exhibit
"D" and those leases executed hereafter
and which are in existence as of the
Closing Date.
Legal Requirements: All laws, statutes, codes, acts
ordinances, judgments, decrees,
injunctions, rules, regulations,
permits, licenses, authorizations,
directions and requirements of all
governments and governmental authorities
having jurisdiction over the Real
Property and the operation of the
Improvements thereon.
Notice to Cancel: That written notice which may be given
by Purchaser to Seller pursuant to
Section 8.1(a), 10.3..(i).
Permitted Title Exceptions: The Leases, those matters set forth in
Exhibit "B" attached hereto, and any
other matters which Purchaser shall
approve in writing or be deemed to have
approved pursuant to the terms of this
Agreement.
Personal Property: Those items of personalty listed on
Exhibit "C" attached hereto and which
will be conveyed to Purchaser at Closing
by a ▇▇▇▇ of Sale (the "▇▇▇▇ of Sale")
containing no warranties, whether
express or implied, except a warranty
of title free of any lien or
encumbrance.
Property: The Real Property, Personal Property,
Service Contracts and the Leases.
Purchase Price: The consideration payable by Purchaser
to Seller for the Property, as provided
in Article III.
Purchaser: Inland Real Estate Corporation or its
designee.
Rent Roll: The list of Leases in existence as of
the date of said list,
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which list is attached hereto as Exhibit
"D".
Seller: JMB Income Properties, Ltd.-XIII, an
Illinois limited partnership.
Service Contracts: Those contracts, agreements, and leases
of equipment relating to the servicing,
operation, management and maintenance of
the Property which are listed on Exhibit
"E" attached hereto.
Survey: Survey dated December 20, 1996 prepared
by Midwest Technical Consultants, Inc.
Land Surveyors prepared in accordance
with minimum standards for an ALTA
survey.
Title Commitment: A commitment for an Owner's Title
Insurance Policy for the Real Property
issued by the Title Insurer in the full
amount of the Purchase Price, covering
title to the Real Property, dated on or
after the date hereof, showing Seller as
owner of the Real Property in fee
simple, subject only to the Permitted
Title Exceptions and other exceptions
pertaining to liens or encumbrances of a
definite or ascertainable amount(which,
in the aggregate do not exceed the
Purchase Price) which may be removed by
the payment of money at Closing and
which Seller shall so remove at Closing.
The Title Commitment will have attached
thereto the following endorsements
("Endorsements"):Extended Coverage, 3.1
Zoning with Parking, Contiguity and
Restrictions.
Title Insurer: Commonwealth Land Title Insurance
Company.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Subject to the conditions and on the
terms contained in this Agreement, Purchaser agrees to purchase and
acquire from Seller, and Seller agrees to sell and transfer to
Purchaser, the Real Property by the Deed, the Leases and Service
Contracts by assignment, and the Personal Property by the ▇▇▇▇ of
Sale.
ARTICLE III
PURCHASE PRICE
3.1 Purchase Price. The purchase price shall be THIRTY ONE MILLION
SEVEN HUNDRED AND FIFTY THOUSAND AND NO/100($31,750,000.00) DOLLARS payable
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as hereinafter provided. Purchaser agrees to pay to Seller, and
Seller agrees to accept payment of the Purchase Price as follows:
(a) The Deposit shall be applied against the Purchase Price
at Closing.
(b) By taking the Property subject to the existing first
mortgage(the "First Mortgage") to Allstate Life Insurance
Company("Allstate") which First Mortgage secures a note payable to
Allstate in the original principal amount of FIFTEEN MILLION SEVEN
HUNDRED THOUSAND AND NO/100 DOLLARS ($15,700,000.00)(the "First
Note"). The unpaid principal balance on the First Note as of the
Closing Date (as herein defined) will be approximately FIFTEEN MILLION
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS($15,700,000.00), and such
unpaid principal balance together with any accrued but unpaid interest
on the First Note as of the Closing Date, shall be applied against the
Purchase Price. Seller shall pay all costs charged by Allstate or any
third party other than Purchaser or Purchaser's attorneys or agents in
connection with the transfer of the Property subject to the First
Mortgage.
(c) Purchaser shall pay to Seller at Closing the balance of
the Purchase Price, plus or minus adjustments and prorations as
hereinafter provided, by certified, cashier's or escrowee check or
bank wire transfer of collected federal funds, as Seller requests.
ARTICLE IV
CLOSING MATTERS
4.1 Survey. No later than ten (10) days following the date
hereof Seller shall deliver the Survey to Purchaser, at Seller's sole
cost and expense. The Survey shall be dated no earlier than December
20, 1996, shall show no encroachments by or from the Real Property
onto any adjacent property and no violation of or encroachments upon
any recorded building lines, restriction, zoning set-backs, or
easements affecting the Real Property. If the Survey discloses any
such unpermitted encroachment or violation or any exceptions to title
or matters indicating possible rights of third parties other than the
Permitted Title Exceptions and the same are not acceptable to
Purchaser, or if Purchaser desires to have the surveyor's
certification revised in a reasonable manner, then, within five (5)
days from Purchaser's receipt of the Survey, Purchaser must so notify
Seller. If Purchaser fails to so notify Seller within said five (5)
day period, the Survey will be conclusively deemed to be approved by
Purchaser. If, within said five (5) day period Purchaser notifies
Seller that the Survey does not comply with the terms of this
Agreement (which notification must specify in what respects the Survey
does not so comply or that the certification should be revised),
Seller shall have ten (10) days from the date of delivery of
Purchaser's notice to have the Title Insurer issue its endorsements
insuring against damage caused by such encroachments, violations or
unpermitted exceptions and provide evidence thereof to Purchaser, or
to have the surveyor's certification revised, as applicable, and if
Seller fails to do so, and provide evidence thereof to Purchaser,
within said ten (10) day period, Purchaser may elect within ten (10)
days after the expiration of Seller's ten (10) day cure period to (i)
terminate this Agreement and thereafter there shall be no further
liability of either party
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hereunder (in which event the Deposit shall promptly be returned to
purchaser) or (ii) accept the Real Property subject to such encroachments,
violations and unpermitted exceptions or the unrevised surveyor's
certification, as applicable, without any diminution of the Purchase Price.
Purchaser's failure to make any election within said ten (10) day period
shall be conclusively deemed to mean that Purchaser has elected the option
contained in subsection (i) of this Section 4.1.
4.2 Title. No later than fourteen (14) days following the date
hereof, Seller shall deliver the Title Commitment to Purchaser, along
with copies of all documents constituting Permitted Exceptions, at
Seller's sole cost and expense. If the Title Commitment discloses
exceptions to title other than the Permitted Title Exceptions
("Unpermitted Title Exceptions") and such Unpermitted Title Exceptions
are not acceptable to Purchaser, then, within ten (10) days from
Purchaser's receipt of the Title Commitment, Purchaser must so notify
Seller. If Purchaser fails to so notify Seller within said ten (10)
day period, the Unpermitted Title Exceptions will be conclusively
deemed to be approved by Purchaser. If, within said ten (10) day
period, Purchaser shall notify Seller that all or certain of the
Unpermitted Title Exceptions are not acceptable to Purchaser(which
notification must specify which Unpermitted Title Exceptions are so
unacceptable), Seller shall have ten (10) days from the date of
Purchaser's notice to have such exceptions removed from the Title
Commitment or cause the Title Insurer to insure Purchaser against same
and provide evidence thereof to Purchaser, and if Seller fails to have
such exceptions removed, or insured over, Purchaser may elect, within
ten (10) days after the expiration of Seller's ten (10) day cure
period to (i) terminate this Agreement without liability on the part
of any party thereafter (in which event the Deposit shall be promptly
returned to Purchaser), or (ii) accept title subject to such
Unpermitted Title Exceptions without any diminution of the Purchase
Price. Purchaser's failure to make any election within said ten (10)
day period shall be conclusively deemed to mean that Purchaser has
elected the option contained in subsection (i) of this Section 4.2. On
the Closing Date, at the expense of Seller as set forth in Section 4.2
hereof, Seller shall cause the Title Insurer to issue an owner's title
insurance policy or prepaid commitment therefor pursuant to and in
accordance with the Title Commitment insuring fee simple title to the
Real Property in Purchaser or its designee as of the Closing Date,
subject only to the Permitted Title Exceptions and such other exceptions
as Purchaser may approve. If Seller is unable to cause the Title Insurer
to issue any of the Endorsements and Purchaser refuses to waive the
requirement therefor, then this Agreement shall become null and void and
of no further force or effect, and the Deposit will be returned to
Purchaser. Additionally, Seller will have no obligation to obtain any of
the Endorsements if the Title Insurer charges other than standard rates
for the coverage or if the Title Insurer requires security or an indemnity
from Seller in order to issue any of the Endorsements.
If Purchaser shall make objection to the Survey (as described in
Section 4. 1) or the Title Commitment (as described in this Section 4.2)
and the Closing Date was to occur prior to the time each party was able
to exercise its rights under Section 4.1 or Section 4.2, as applicable,
then the Closing Date will be extended to a date which is three (3)
business days subsequent to the latest date for notice, objection and
remedy permitted by either Section 4.1 or 4.2, as applicable.
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4.3 Possession, Prorations and Expenses, and New Leases.
(a) Sole and exclusive possession of the Property, subject
only to the rights of the tenants under the Leases, shall be delivered
to Purchaser on the Closing Date. Any vacant space will be placed
into Rent Ready Condition, which is defined to be that all walls are
patched and freshly painted, each space to be demised has a fully-
fixtured and operable bathroom, and all doors have locks and are
operable, the ceiling is completed with acoustical tile and standard
fluorescent lighting and the floor is in broom-clean condition.
(b) The parties shall commence closing the transaction
contemplated herein in what is commonly referred to as a "dry closing"
on the day prior to the Closing Date as defined herein. At such "dry
closing" all documents will be deposited into the closing escrow and
all prorations will be established effective the date of the "dry
closing" ("Proration Date"). The balance of the Purchase price as
determined at the end of the "dry closing" is to be deposited in
immediately available funds with the Title Insurer by 12:00 noon on
the Closing Date, as required by Section 4.5(d) hereof. If Purchaser
fails to deposit the balance of the Purchase Price by 12:00 noon on
the Closing Date, as aforesaid, and if Seller does not terminate this
Contract for such default of Purchaser and the Closing occurs, the
Proration Date shall be concurrent with the Closing Date and all
prorations will be calculated as of the end of the day on the Closing
Date.
(c) Fixed Rent, Percentage Rent and tenant common area
maintenance and other expense contributions to be made by tenants
shall be prorated as follows:
(i) Fixed Rent - prepaid Fixed Rent will be prorated
as of the Proration Date with Seller being entitled to Fixed Rent
for the Proration Date and Purchaser being entitled to Fixed Rent
thereafter. All other Fixed Rent which is delinquent on the
Proration Date will not be prorated. All such arrearages of
Fixed Rent unpaid on the Proration Date will remain the sole and
exclusive property of Seller after Closing, provided, however,
if, after Closing, Seller shall receive any such delinquent Fixed
Rent, Seller will remit to Purchaser that portion of such
delinquent Fixed Rent that is attributable to the period after
the Proration Date, if any. Seller shall retain all right,
title, power and authority to enforce payment thereof after
Closing, except that Seller will not have the right to terminate
the Lease of a delinquent tenant after Closing due to such
delinquency. If, after Closing, Purchaser or its designee shall
receive any delinquent Fixed Rents (this provision shall not
relate to percentage rents) Purchaser may first apply such
payments to rent delinquencies which relate to any period after
the Proration Date, and Purchaser agrees, on its behalf and on
behalf of its designee, to immediately remit the balance to
Seller.
(ii) Percentage Rent - Percentage Rent which is due but
unpaid at Closing and accrued Percentage Rent not yet payable at
Closing will not be prorated. If, after Closing, however,
Purchaser receives any payment of percentage rent which relates
in any part to sales made prior to the Proration Date, Purchaser
shall immediately remit
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Seller's share thereof to Seller and may not apply any portion of
such percentage rent to any post Proration Date rent
delinquencies whether delinquent Fixed Rent or tenants'
delinquent obligations to pay their pro rata share of taxes or
"Expenses" (as hereinafter defined). If, after Closing, Seller
receives any payment of Percentage Rent which relates in any part
to sales made after the Proration Date, Seller shall immediately
remit Purchaser's share thereof to Purchaser and may not apply
any portion of such Percentage Rent to any pre-Proration Date
rent delinquencies.
(iii) Tenant CAM and Other Expense Contributions. For
purposes hereof, the term Expenses shall mean all common area
maintenance costs and other operating expenses of the Property,
excluding real estate taxes and other items expressly covered in
other provisions of this Section 4.3. All payments by the tenant
to the landlord under the Leases for Expenses ("Tenant Expense
Contributions")shall be prorated between Seller and Purchaser as
follows:
(aa) Seller acknowledges the receipt of the
tenants' Tenant Expense Contributions from January 1, 1997
to Closing. Seller shall be responsible for such tenant
expenses up to Closing and Purchaser shall be responsible
for such tenant expenses from and after Closing.
(bb) At Closing, Seller shall give Purchaser a
credit for a prorated portion of the Tenant Expense
Contributions paid in advance for the month of Closing
determined by multiplying the total such Tenant Expense
Contributions paid for such month by a fraction, the
numerator of which is the number of days from and including
the date of Closing to and including the last day of such
month and the denominator of which is the total number of
days in such month.
(cc) No more than sixty (60) days after Closing,
Seller and Purchaser shall reprorate the Tenant Expense
Contributions based on the total amount thereof and the
total actual tenant expenses from January 1, 1997 to Closing
as contemplated under Section (aa)above. If as a result of
said proration the parties determine that Seller has
received from the tenants an amount of Tenant Expense
Contributions in excess of the amount to which Seller is
entitled or less than the amount that Seller is entitled
pursuant to Section (aa) above, Seller shall either pay such
excess to Purchaser or receive such shortage from Purchaser
within fifteen(15) days after the reproration is determined.
In connection with the foregoing, Purchaser and Seller agree
to cooperate with each other concerning the calculation of
the reproration. Seller shall deliver to Purchaser at
Closing information concerning the tenant expenses paid and
Tenant Expense Contributions collected by Seller prior to
the Closing to the extent reasonably available to Seller at
that time.
(iv) At Closing, Seller will have already paid the
first installment of the
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1996 ad valorem real estate taxes which installment represents
fifty percent (50%) of the total 1996 real estate tax ▇▇▇▇.
Seller shall allow Purchaser a credit against the Purchase Price
in an amount equal to the second installment of the 1996 real
estate tax ▇▇▇▇ in satisfaction of Seller's obligation for the
payment of the second installment of the 1996 real estate tax
▇▇▇▇. Purchaser shall then pay the second installment 1996 real
estate tax ▇▇▇▇ when received without contribution from Seller.
Purchaser and Seller shall prorate the 1997 ad valorem real
estate taxes to the Proration Date on the basis of one hundred
three percent (103 %) of the 1996 real estate tax ▇▇▇▇ for the
property. At Closing Seller and Purchaser will reconcile the 1996
real estate tax ▇▇▇▇ against the deposits received by the Seller
from those tenants who make monthly tax deposits (the "Monthly
Tax Payors"). If Seller has received more monies from the
Monthly Tax Payors than required to pay said tenants' share of
the 1996 real estate taxes, the difference will be an additional
credit to Purchaser at Closing. If Seller has received less
monies from the Monthly Tax Payors than required to pay said
tenants' share of the 1996 real estate taxes, said amount shall
be a credit to Seller at Closing. Purchaser and Seller will
reconcile the 1997 real estate tax ▇▇▇▇ based upon one hundred
three percent (103%) of the 1996 real estate tax ▇▇▇▇ for the
Monthly Tax Payors in the same manner as the 1996 real estate tax
reconciliation. With regard to those tenants who pay their share
of real estate taxes upon the presentation of the real estate tax
▇▇▇▇ (the "Sight Tax Payors"), Seller shall have the right to use
whatever reasonable enforcement methods Seller deems appropriate
in collecting the 1996 real estate taxes from the Sight Tax
Payors. Said reasonable efforts shall include, but not be
limited to, delivery of notices to the tenants and taking legal
action, if required, but not termination of possession or
termination of any Lease. Purchaser agrees to cooperate with
Seller to aid Seller in collecting the Tenant Sight Payors' share
of the 1996 real estate taxes. Seller shall have no obligation
to Purchaser for the payment of the 1997 real estate tax ▇▇▇▇
received by Purchaser in 1998 and all real estate tax adjustments
provided under this paragraph shall be final as of the date of
Closing.
In addition, security deposits, prepaid expenses,
utility charges and deposits, if any, and all other customarily
proratable items shall be prorated as of the Proration Date on
the basis of the most recent ascertainable amounts thereof or
other reliable information in respect to each such item of income
and expense and the net credit to Purchaser or Seller shall be
paid in cash or as a credit or debit against the Purchase Price.
In no event shall Seller be charged or be responsible for any
increase in real estate taxes on the Property resulting from any
improvements made to the Property after the Proration Date.
(d) Seller shall credit Purchaser at Closing with a special
rent loss proration (the "Rent Loss Proration") in the total sum of
TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00). Said
special Rent Loss Proration is to reimburse Purchaser for any rent
loss caused by current vacancies and anticipated vacancies in the
premises following the Closing. Purchaser shall not be obligated to
account to Seller for the use of the special Rent Loss Proration.
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(e) Seller shall pay all title charges required to fulfill
the obligations under Section 4.2, one-half (1/2) of the escrow
charges, all survey charges, and the cost of the State and County
Transfer Tax on the Deed. Purchaser shall pay for one-half(1/2) of
the escrow charges, the charges to record the Deed and the cost of the
municipal Transfer Tax, if any, on the Deed. The parties shall each be
solely responsible for the fees and disbursements of their respective
counsel and other professional advisers.
(f) (i) Seller, until the earlier of the Closing Date or
termination of this Agreement, shall not enter into any new
Leases("New Leases") without the prior written consent of the
Purchaser, which consent shall not be unreasonably withheld.
Purchaser will not be deemed to have unreasonably withheld its
consent to a proposed New Lease if the terms thereof do not meet
the Criterion for New Leases described on Exhibit H attached
hereto.
(ii) In the event Seller enters into a New Lease after
the date of this Agreement, and such New Lease requires
improvements or the payment of brokerage commissions
(collectively the "New Leasing Costs") at the expense of Seller,
as landlord, Purchaser by approving the execution of the New
Lease shall, at Closing, assume the obligation to pay for all
unpaid New Leasing Costs. Any New Leasing Costs paid by Seller
prior to Closing will be reimbursed to Seller by Purchaser at
Closing.
(iii) Failure of the Purchaser to consent or object in
writing within three (3) business days after a written request
for such consent to the execution of a New Lease by Seller, shall
be deemed to constitute consent.
(iv) Purchaser at Closing will indemnify and forever
defend and hold Seller, its partners, agents and employees
harmless from any loss, liability, suit, action, judgment or
claim as a result of Purchaser's nonpayment of any New Leasing
Costs assumed by Purchaser at Closing.
4.4 Escrow. Concurrently herewith, the parties, through their
respective attorneys, shall establish a Strict Joint Order Escrow in
the form customarily used by Title Insurer under which the Deposit
will be held. If Purchaser shall not give the Notice to Cancel, then
not later than seven (7) days prior to the Closing Date, but subject
in any event to Section 4.5(c,), the Strict Joint Order Escrow will be
terminated, and a new escrow will be created by the parties through
their respective attorneys with the Title Insurer at Title Insurer's
office in Chicago, Illinois, through which the Deposit will be held
and invested and the transaction shall be closed. The escrow
instructions shall be in the form customarily used by the escrowee
with such special provisions added thereto as may be required to
conform to the provisions of this Agreement. Said escrow shall be
auxiliary to this Agreement and this Agreement shall not be merged
into or in any manner superseded by said escrow.
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4.5 Closing.
(a) The "dry closing" as defined in Section 4.3(b) shall
commence at 10:00 a.m. (CST) at the offices of the Title Insurer in
Chicago, Illinois and the Closing shall take place at noon on July 15,
1997 (the "Closing Date") at the offices of the Title Insurer in
Chicago, Illinois, or on such other date or dates as the parties may
mutually agree.
(b) Not later than the Proration Date, Seller shall deposit
in the escrow the following:
(i) The Deed;
(ii) An assignment of all of Seller's right, title and
interest in and under the Leases and Service Contracts;
(iii) The ▇▇▇▇ of Sale;
(iv) Originals of the Leases and Service Contracts;
(v) Letters to tenants under the Leases advising that
the Property has been sold to Purchaser and directing payment of
rental under the Leases in accordance with the directions of
Purchaser;
(vi) An ALTA statement in form required by the Title
Insurer;
(vii) An executed FIRPTA Affidavit in customary form;
(viii) Estoppel Letters in the form prescribed in the
Lease or if no form is prescribed in the Lease then substantially
in the form of Exhibit "F" attached hereto, the contents of which
are reasonably satisfactory to Purchaser, from Best Buy, Cineplex
Odeon, Office Depot, T.J. Maxx and PetsMart and from such other
tenants under the Leases which when added to the gross leasable
area in the Improvements occupied by the foregoing five (5) named
tenants, aggregate not less than eighty (80%) of the total
occupied gross leasable area in the Improvements. If Seller is
unable to procure such Estoppel Letters by the Proration Date,
such failure to procure Estoppel Letters shall not constitute a
default by Seller hereunder, but Purchaser will not be required
to close the transaction unless Seller obtains the required
Estoppel Letters during the thirty (30) day period describe in
(i) of the next sentence or provides the indemnification
described in (ii) of the next sentence. Seller shall have the
right to either (i)postpone the Closing Date (and thereby extend
the Proration Date)up to thirty (30) days in order to attempt to
obtain the required Estoppel Letters from said tenants or (ii)
subject to the limitations contained in Section 10.3, indemnify
Purchaser against the claims of any tenants who have not provided
Estoppel Letters and which claims arose prior to the Closing
Date, and correct any matters (to Purchaser's reasonable
satisfaction) which are raised in the
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Estoppel Letters which were provided. If Seller elects to extend
the Closing Date as provided for herein and on the extended
Closing Date is still unable to deliver the required number of
Estoppel Letters, Seller may then elect to either (iii) terminate
this Agreement or (iv) provide the indemnification described
in(ii) of the preceding sentence. Purchaser agrees that requests
for Estoppel Letters will be sent to all tenants no later than
July 1,1997.
(ix) Such other documents, instruments, certifications
and confirmations as may be reasonably required to fully effect
and consummate the transaction contemplated hereby, including
Releases or Stop Orders from the Illinois Department of Revenue
and the Illinois Department of Labor with respect to State of
Illinois Retailer's Occupation, Income and Unemployment Insurance
Taxes payable by Seller.
(c) Not later than the Proration Date, Purchaser shall
deposit in the escrow the following:
(i) An ALTA statement in form required by the Title
Insurer;
(ii) An assumption of the Leases (including the
obligation to return or apply the tenants' security deposits
under the Leases; but only to the extent that Purchaser has
received a proration credit at Closing from Seller for said
tenant security deposit or unapplied portion thereof) and Service
Contracts; and
(iii) Such other documents, instruments,
certifications and confirmations as may be reasonably required
and to fully effect and consummate the transaction contemplated
hereby.
(d) No later than 12:00 noon (CST) on the Closing Date,
Purchaser shall deposit the balance of the Purchase Price as provided
in Section 3.1 with the Title Insurer.
(e) Not later than the Proration Date, Seller and Purchaser
shall jointly deposit in the escrow an agreed proration statement and
declarations complying with the provision of state, county and local
law applicable to the determination of documentary and transfer taxes.
(f) All documents or other deliveries required to be made
by Purchaser or Seller on or prior to the Proration Date and all
deposits and transactions required to be consummated concurrently with
Closing, shall be deemed to have been delivered and to have been
consummated simultaneously with all other transactions and all other
deliveries, and no delivery shall be deemed to have been made, and no
transaction shall be deemed to have been consummated until all
deliveries required by Purchaser, or its designee, and Seller shall
have been made, and all concurrent or other transactions shall have
been consummated.
(g) At the request of either party, the transaction shall
be closed by means of a so-called "New York Style Closing," with the
concurrent delivery of the documents of title, transfer of interests,
delivery of the title policy described in Section 4.2 and the payment
of the
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Purchase Price. The Seller shall provide and pay for any necessary
undertaking (the "Gap Undertaking") to the Title Insurer. The charges
of the Title Insurer for such New York Style Closing shall be paid
equally by the parties hereto.
(h) In any event, whether the Closing occurs through escrow
or byway of a. New York Style Closing, the parties and their
respective attorneys shall meet with the Title Insurer on or before
the Proration Date (as they shall mutually agree) to make their
respective deposits (except for the balance of the Purchase Price
which will be deposited by Purchaser on the Closing Date, as
aforesaid) and approve the proration statement, all as described in
this Section 4.5, to enable the Closing to occur in a prompt fashion
on the Closing Date.
ARTICLE V
BROKERAGE
5.1 Brokerage. Seller hereby represents and warrants to
Purchaser that Seller has not dealt with any broker or finder with
respect to the transaction contemplated hereby except for ▇▇▇▇▇▇▇
▇▇▇▇▇, L.L.C ("Brokers") whose commission shall be paid by Seller at
Closing; and Seller hereby agrees to indemnify Purchaser for any claim
for brokerage commission or finder's fee asserted by Brokers or any
other person, firm or corporation claiming to have been engaged by
Seller. Purchaser hereby represents and warrants to Seller that
Purchaser has not dealt with any broker or finder in respect to the
transaction contemplated hereby except for the Brokers and Purchaser
hereby agrees to indemnify Seller for any claim for brokerage
commission or finder's fee asserted by a person, firm or corporation
other than the Brokers claiming to have been engaged by Purchaser.
ARTICLE VI
DESTRUCTION, DAMAGE OR CONDEMNATION
6.1 Destruction or Damage. In the event that prior to the
Closing Date any portion of the Improvements shall be damaged or
destroyed by fire or other casualty, Seller shall immediately give
Purchaser notice of such occurrence. If the amount of damage caused
by such fire or casualty shall exceed $350,000.00 (as determined by an
insurance adjuster selected by Seller) Purchaser may, within fifteen
(15) days after receipt of such notice, elect to (a) terminate this
Agreement, in which event the Deposit shall be returned promptly to
Purchaser, all obligations of the parties hereunder shall cease and
this Agreement shall have no further force and effect, or (b) close
the transaction contemplated hereby as scheduled (except that if the
Closing Date is less than fifteen(15) days following Purchaser's
receipt of such notice, Closing shall be delayed until after Purchaser
makes such election), and Seller shall assign to Purchaser at Closing
all rights under Seller's insurance policy to collect insurance
proceeds for such destruction or damage and loss of rents, and
Purchaser shall receive a credit against the Purchase Price equal to
the amount of any deductible under such policy. Failure to give such
notice within such time shall be conclusive evidence that Purchaser
has elected the option contained in subsection (b) of this Section
6.1.
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In the event that the amount of damage caused by such fire or
casualty is less than $350,000.00 (as determined by an insurance
adjuster selected by Seller), Purchaser may not elect to terminate
this Agreement and shall close the transaction contemplated hereby as
scheduled, and Seller shall assign to Purchaser at Closing all rights
under Seller's insurance policy to collect insurance proceeds for such
destruction or damage and loss of rents, and Purchaser shall receive a
credit against the Purchase Price equal to the amount of any
deductible under such policy.
6.2 Condemnation. If, subsequent to the date hereof and prior
to the Closing Date, any proceeding, which shall relate to the
proposed taking of any "material" portion of the Real Property or
Improvements by condemnation or eminent domain or any action in the
nature of eminent domain is instituted or commenced, Purchaser shall
have the right and option to terminate this Agreement by giving Seller
written notice to such effect within fifteen (15)days after actual
receipt of written notification of any such occurrence. Failure to
give such notice within such time shall be conclusive evidence that
Purchaser has waived the option to terminate by reason of the occurrence
of which it has received notice. If any such action is instituted or
commenced and Purchaser elects or is deemed to elect not to terminate
this Agreement, at Closing, Purchaser shall be assigned all of Seller's
right to any proceeds therefrom. Seller agrees to furnish Purchaser
written notification with respect to any such proceedings within
forty-eight hours of Seller's receipt of any such notification or
learning of the institution of such proceedings. Should Purchaser
elect to so terminate this Agreement, the Deposit shall be returned
promptly to Purchaser and thereupon the parties hereto shall be released
from any and all other obligations hereunder. If the Closing Date is
less than fifteen (15) days following the last day on which Purchaser
is entitled to elect to terminate this Agreement, the closing shall be
delayed until after Purchaser makes such election.
The term "material" for purposes of this Section 6.2 shall mean
any taking of any portion of the Improvements or any taking of more
than ten (10%) percent of the land area of the Real Estate.
6.3 Casualty and Rent Loss Insurance. If, under the terms of
Section 6.1, Seller is obligated at Closing to assign to Purchaser all
rights under Seller's insurance policy to collect insurance proceeds
for the repair of any pre-Closing destruction or damage, Seller shall,
at Closing, make Purchaser a loss payee under such insurance policy in
order to effectuate such assignment obligation of Seller and in
addition shall make Purchaser a loss payee for any Loss of Rents
insurance coverage that Seller may have relating to any rental loss
arising from said destruction or damage, but relating solely to the
period commencing on the Proration Date and thereafter while such
coverage may be in effect and the rent is abated under any of the
Leases as a result of such destruction or damage.
In the event Seller is obligated to make Purchaser a loss payee
for any Loss of Rents insurance coverage pursuant to the preceding
paragraph and Seller's insurance to cover such loss of rents for a
period of twelve (12) months from the date of any fire or casualty is
not in effect at the time of Closing, Purchaser, at its election (to
be exercised at or prior to Closing by written notice to Seller) may
terminate this Agreement, obtain a return of its Deposit and
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thereupon the parties hereto shall be released from any and all
further obligations hereunder.
ARTICLE VII
COVENANTS, REPRESENTATIONS, WARRANTIES
7.1 Affirmative Covenants of Seller.
(a) Seller, at Seller's sole cost and expense, shall until
the earlier of the Closing Date or termination of this Agreement, keep
and perform or cause to be performed in all material respects: (i)all
obligations of the lessor under the Leases, and (ii) all obligations
of Seller under the Legal Requirements if Seller's failure to perform
any of such Legal Requirements would adversely affect Seller's ability
to consummate this Agreement.
(b) From the date of Seller's acceptance hereof to the
earlier of the Closing Date or termination of this Agreement, Seller
shall not do, suffer or permit or agree to do any of the following:
(i) Enter into any transaction in respect to or
affecting the Property out of the ordinary course of business;
(ii) Except for Seller's execution of new Leases, as
provided in Section 4.3(e), sell, encumber, or grant any interest
in the Property in any form or manner whatsoever, or otherwise
perform or permit any act which will diminish or otherwise affect
Purchaser's interest under this Agreement or in the Property, or
which will prevent Seller's full performance of its obligation
hereunder.
(c) From the date of Seller's acceptance hereof to the
earlier of the Closing Date or termination of this Agreement, upon
reasonable advance notice from Purchaser (which notice shall be not
less than one business day in advance and shall be two (2) business
days in advance if Purchaser desires to inspect any occupied portions
of the Improvements) Seller shall permit representatives, accountants,
agents, employees, lenders, contractors, appraisers, architects and
engineers designated by Purchaser (collectively "Permittees") access
to and entry upon the Property to examine, inspect, measure and test
the Property and access to the office of Seller to review Seller's
books and records relating to the operation thereof. Seller shall
have the right to require that a representative of Seller accompany
any or all of the Permittees.
In no event shall Purchaser make any intrusive physical testing
(environmental, structural or otherwise) at the Property (such as soil
borings, water samplings or the like) without Seller's prior written
consent (and shall in all events promptly return the Property to its
prior condition and repair thereafter).Purchaser agrees that Seller
may have a representative present at any inspection, sampling or
testing, including, but not limited to, an environmental engineer or
consultant designated by Seller in connection with any environmental
sampling or testing conducted by Purchaser in accordance win this
Section 7(c). At Seller's request, any sampling or testing by
Purchaser's environmental consultant shall be conducted in a manner so
as to
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provide "split" samples or data to Seller's environmental consultant.
Purchaser does hereby indemnify and forever defend and hold
Seller, its partners, agents, tenants and employees ("Indemnified
Parties") harmless from any expense, loss, liability, suit, action,
judgment, or claim (including, without limitation, any mechanics' lien
which may be filed against the Property) which any of the Indemnified
Parties may incur, suffer or sustain as a result of the exercise by
Purchaser of its rights (and that of its Permittees) to enter upon the
Property or the office of Seller pursuant to this Section 7.1(c).
Prior to any such entry, Purchaser (or its Permittees) shall deliver
to Seller a certificate of Commercial General Liability insurance
naming Seller and its partners as additional insured thereunder in
coverage amounts of not less than $1,000,000.00 per occurrence. If the
Closing does not occur for any reason, Purchaser will restore(or cause
to be restored) the Property to its former condition to the extent
Purchaser or its Permittees have altered or damaged the Property in
any manner.
(d) Seller shall notify Purchaser promptly if Seller
becomes aware of any transaction or occurrence prior to the Closing
Date which would make any of the representations or warranties of
Seller contained in Section 7.2 hereof not true in any material
respect.
(e) Any vacant rentable space in the Real Property will be
placed into Rent Ready Condition, which is defined to be that all
walls are patched and freshly painted, each space to be demised has a
fully fixtured and operable bathroom, and all doors have locks and are
operable, the ceiling is completed with acoustical tile and standard
fluorescent lighting and the floor is in broom-clean condition.
(f) Seller agrees to cooperate with Purchaser's accountants
(at no cost or expense to Seller) relative to the performance by said
accountants of an audit of Seller's books and records relating solely
to the Property. If Purchaser's auditors shall request Seller to
execute a representation letter addressed to the auditors and Seller
and the auditors cannot agree on the content thereof, Purchaser may
terminate this Agreement at any time prior to the Closing Date by
written notice to Seller, whereupon Purchaser shall obtain a return of
the Deposit.
(g) Seller shall keep the First Note and First Mortgage
current and free from default from and after the execution of this
Agreement to Closing.
7.2 Representations and Warranties of Seller. To induce
Purchaser to execute, deliver and perform this Agreement, Seller
hereby represents and warrants to Purchaser on and as of tile date
hereof and on and as of the Closing Date (except as set forth in any
written communication from Seller to Purchaser given on or prior to
the Closing Date and setting forth any changes in such representations
or warranties) as follows:
(a) Seller is an Illinois limited partnership in good
standing with the Secretary of State of Illinois and this contract and
the obligations of Seller have been duly authorized by all necessary
acts of the General Partner.
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(b) Seller owns fee simple title to the Real Property.
(c) Exhibit "D" hereto attached contains a list of all
Leases presently in existence and lists all modifications or
amendments to the Leases known to Seller. The interest of Seller in
the Leases and Service Agreements is free and clear of all liens and
encumbrances and has not been assigned to any other person.
(d) Except for Seller and tenants under the Leases, to
Seller's actual knowledge, there are no persons in possession or
occupancy of the Real Property or Improvements or any part thereof,
nor are there any persons who have possessory rights in respect to the
Real Property or Improvements or any part thereof. Except as maybe set
forth in the Leases, there are no rights of first refusal to purchase
or options to purchase the Property in favor of any tenant under the
Leases or any other party.
(e) Seller has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be
executed by Seller pursuant hereto, and all required action and
approvals therefor have been duly taken and obtained. This Agreement
and all documents to be executed pursuant hereto by Seller are, and
shall be, binding upon Seller.
(f) To Seller's actual knowledge, there are no causes of
action or other litigation pending in respect to the ownership of the
Property or any part thereof or the ownership, enforcement or validity
of the Leases except matters covered by insurance and except for any
matters listed on Exhibit "G" hereto attached.
(g) To Seller's actual knowledge, there are no existing
condemnation proceedings of any part of the Real Property, and Seller
has not received written notice from a condemning authority of its
intent to condemn any portion of the Real Property.
(h) To Seller's actual knowledge, Seller has not received
written notice from any governmental authority that the Property is in
violation of any Legal Requirements which have not previously been
corrected, or that any special assessment lien has been or will be
spread of record.
(i) To Seller's actual knowledge, Seller owes no sums to
the Illinois Department of Revenue.
(j) To Seller's actual knowledge, the Financial Statements
provided by Seller to Purchaser relating to the operation of the
Improvements are each true, accurate and complete in all material
respects.
For purposes of this Agreement, the expression "Seller's actual
knowledge" shall mean the actual knowledge only of ▇▇▇▇▇ ▇▇▇▇▇▇, the
property manager of the Property, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the portfolio
manager (collectively the "Managers") and no knowledge of any
employee, agent, or independent contractor of Seller or Managers shall
be imputed to the
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Managers, nor shall the Managers be bound to, or obligated to make or
cause to be made any independent inquiry or investigation relating to
the subject matter of any representation or warranty made to "Seller's
actual knowledge".
7.3 Representations and Warranties of Purchaser. To induce
Seller to execute, deliver and perform this Agreement, Purchaser
hereby represents and warrants to Seller on and as of the date hereof
and on and as of the Closing Date as follows:
(a) All representations and warranties of Purchaser
appearing in other Sections of this Agreement are true and correct.
(b) Purchaser has full capacity, right, power and authority
to execute and deliver this Agreement. At Closing, Purchaser's
designee, if any, will have full capacity, right, power, and authority
to perform this Agreement and all documents to be executed by
Purchaser pursuant hereto. This Agreement and all documents to be
executed pursuant hereto by Purchaser are and shall be binding upon
Purchaser in accordance with their respective terms.
(c) Purchaser certifies and warrants to Seller that the
purchase of the Property by Purchaser or its designee will not result
in a prohibited transaction under Section 406 of the Employee
Retirement Income Security Act of 1974, Section 4975 of the Internal
Revenue Code of 1986, or any similar state law applicable to
governmental plans. Purchaser shall indemnify and hold Seller
harmless from all loss (including reasonable attorneys' fees and
costs) arising out of a breach of the foregoing certification and
warranty. The terms of this Section 7.3(c) shall survive the Closing.
7.4 Covenants of Purchaser.
(a) Purchaser shall notify Seller promptly if Purchaser
becomes aware of any transactions or occurrence prior to the Closing
Date which would make any of the representations or warranties of
Seller contained in this Agreement untrue in any material respect.
Purchaser's failure to so notify Seller shall constitute a waiver
by Purchaser of any liability of Seller to Purchaser or its designee
arising from the untruth of any such representations or warranties of
Seller known to Purchaser prior to Closing, it being agreed by the
parties hereto that such representations and warranties known by
Purchaser to be untrue at or prior to Closing, shall not survive
Closing.
(b) Purchaser acknowledges and agrees that the sale of the
Property is made on in "AS IS, WHERE-IS, WITH ALL FAULTS" basis and,
except as specifically set forth in Section 7.2, without
representations or warranties of any kind or nature, express, implied
or otherwise, including, but not limited to, any representation or
warranty made by the Brokers or any representation or warranty
concerning zoning, financial, environmental, or physical condition of
the Property, or any income, expenses, charges, liens, encumbrances,
rights, claims
-17-
on or affecting or pertaining to the Property. Purchaser acknowledges
that if it elects to purchase the Property it will be doing so
predicated upon its own independent investigations, the investigation
of its Permittees and the representations and warranties of the
Sellers expressly made herein or in any other document executed and
delivered by Seller to Purchaser at Closing as described in Section
4.5(b). Purchaser waives, releases, covenants not to ▇▇▇ and forever
discharges Seller, its partners, officers, directors, contractors,
employees and agents and other persons acting on behalf of Seller, of
and from any and all claims, actions, causes of action, demands,
rights, damages, costs, expenses, or compensation whatsoever, direct
or indirect, known or unknown, foreseen or unforeseen, which Purchaser
now has or which may arise in the future on account of or growing out
of or in connection with any physical characteristics or existing
condition including, without limitation, subsurface conditions, solid
and hazardous wastes, and Hazardous Materials on, under, or related to
the Property, or any applicable law or regulation. Purchaser
acknowledges that (i) Seller has afforded Purchaser the opportunity
for a full and complete investigation, examination and inspection of
the Property and (ii) the purchase price reflects the agreement of
Purchaser not to pursue or assert any claims against Seller arising
out of environmental matters. Purchaser acknowledges that this clause
is a negotiated part of this Agreement and serves as an essential
component of consideration for the Property. The release contained
under this clause includes, but is not limited to, the release by
Purchaser of Seller from all claims, rights of contribution or other
rights or remedies against Seller pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 198O, as
amended. Purchaser hereby does not waive its claims which arise as a
direct result of a default of this Agreement by Seller, in which
event, Purchaser's exclusive remedies shall be limited for any such
default prior to Closing to the provisions of Section 8.l(b) and for
any default discovered after Closing, to the provisions of Section
10.3. Other than as provided for herein, Purchaser hereby waives any
and all claims, rights, remedies or otherwise arising out of or in
connection with this sale at law or in equity.
(c) Purchaser acknowledges and agrees that except as provided
in Section 4.3(d), nothing in this Agreement shall be deemed to preclude
or prohibit Seller from operating, managing, leasing (including terminating
any Lease for breach by the tenant) and repairing the Property in the same
manner as the same was operated, managed, leased, and repaired prior to
execution hereof. Seller will not voluntarily terminate any of the Leases
prior to their expiration date without Purchaser's written approval, which
will not be unreasonably withheld or unduly delayed.
(d) Purchaser agrees that it will not attempt to contact
any of the tenants of the Property (whether by telephone,
correspondence, or in person) until such time, if ever, as the
Inspection Period shall have expired and Purchaser has not given
Seller a Notice to Cancel. Thereafter, Purchaser may contact any of
the tenants so long as it shall first notify Seller and give Seller
the opportunity to review any written communication with any of the
tenants and to be present at any personal meeting with the tenants, as
applicable. Notwithstanding the foregoing, nothing herein shall be
deemed to prohibit or restrict Purchaser from contacting a Tenant if
such Tenant is an occupant/tenant of any other shopping center owned
by Purchaser. With regard to any such contact, Purchaser agrees that
they will not have a substantial
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conversation regarding Rivertree Court with any such Tenants without
notifying Seller and obtaining Seller's prior written agreement.
ARTICLE VIII
DEFAULT, CONDITIONS PRECEDENT AND TERMINATION
8.1 Conditions to Purchaser's Obligations and Default by Seller.
(a) The obligation of Purchaser to close the transaction
contemplated hereby is, at Purchaser's option, subject to Purchaser's
review and approval of: the Leases, Service Contracts, the
environmental and structural condition of the Property, the Title
Commitment, the First Note and First Mortgage and such market
research, inspections of the Property, determinations as to the
Property's compliance with the Legal Requirements and review of
financial statements relating to the Property, as Purchaser deems
necessary to make its final determination to acquire the Property.
Purchaser shall have until 5:00 p.m. (CST) June 30, 1997 ("Inspection
Period") to make such reviews and approve the same. If, by the
conclusion of the Inspection Period, Purchaser has not given Seller
written notice ("Notice to Cancel") that it intends to cancel this
Agreement it will be conclusively presumed that Purchaser has approved
the matters described in this Section 8.1(a) and has determined to
acquire the Property. Purchaser will then have a period of seven (7)
days after the expiration of the Inspection Period within which to
obtain the approval by its Board of Directors of the acquisition of
the Property pursuant to the terms hereof. If on or before the
conclusion of the Inspection Period Purchaser has given the Notice To
Cancel, or if it has not given the Notice to Cancel but notifies
Seller within seven (7) days after the expiration of the Inspection
Period that it did not obtain Board of Directors' approval, the
Deposit will. be paid to Purchaser and this Agreement will be
terminated and become null and void except for Purchaser's obligations
under Section 7. 1 (c) which will survive such termination.
If Purchaser shall not have given a Notice to Cancel within the
time aforesaid, the Deposit shall be nonrefundable except as set forth
in Sections 8.l(b), 6.1 and 6.2.
(b) The obligation of Purchaser to close the transaction
contemplated hereby is, at Purchaser's option, further subject to all
material representations and warranties of Seller contained in this
Agreement being true and correct in every material respect at and as
of the Closing Date and all material obligations of Seller to have
been performed on or before the Closing Date having been timely and
duly performed. If the conditions precedent to Purchaser's obligation
to Close as described in Sections 4.1, 4.2, and 4.5(b)(viii) have not
occurred on or prior to the times required therein (subject to
Seller's extension rights under Section 4.5(b)(viii)), Purchaser shall
have only the following options to be exercised by written notice to
Seller prior to the Closing Date: (i) to terminate this Agreement,
obtain a refund of the Deposit and thereafter this Agreement shall be
null and void, or (ii) to waive such conditions and close this
Agreement on the Closing Date without diminution of the Purchase
Price. If Seller shall be in default of its obligation under this
Agreement (in contrast to Seller's inability to perform any of the
conditions precedent described above and elsewhere in this Agreement
which shall not
-19-
constitute a default), Purchaser shall have only the following options
as its sole and exclusive remedy for said default, to be exercised by
written notice to Seller on or prior to Closing Date: (aa) to
terminate this Agreement and obtain a return of the Deposit, whereupon
this Agreement shall become null and void and of no further force or
effect, except that if the default of Seller shall be of such a nature
as to be willful and wanton in conduct, then Purchaser also shall be
entitled to receive from Seller the sum of $75,000 as and for full,
final and agreed upon liquidated damages (the parties hereto hereby
acknowledge that the amount of such damages are otherwise incapable of
ascertainment) or (bb) to obtain a return of the Deposit and seek
specific performance of this Agreement. If Purchaser does not file
suit for Specific Performance within six(6) months of Seller's alleged
default, it will be conclusively presumed that Purchaser has elected
the option set forth in Section 8.1(b)(aa). Purchaser's failure to
give such written notice on or prior to the time described above,
shall be conclusive evidence that all such conditions precedent to
Purchaser's obligations to close have been satisfied. If this
Agreement is terminated pursuant to this Section 8.1(b), the Deposit
shall promptly be returned to Purchaser, and all other funds and
documents theretofore delivered hereunder or deposited in escrow by
either party shall be promptly returned to such party. The rights and
remedies granted to the Purchaser in this Section 8.1(b) are the sole
rights and remedies available to the Purchaser in the event of
Seller's default of its obligations under this Agreement and Purchaser
hereby waives any other rights it may have at law (including claims
for any tortious conduct it may allege against Seller) or in equity.
8.2 Conditions to Seller's Obligations and Default by Purchaser.
The obligation of Seller to close the transaction contemplated hereby
is, at Seller's option, conditioned upon Purchaser's representations
and warranties contained in this Agreement being true and correct in
every material. respect at and as of the Closing Date, and upon
fulfillment by Purchaser of all obligations of Purchaser which were to
have been performed on or before the Closing Date having been timely
and duly performed. If any condition precedent to Closing of Seller as
set forth in this Section 8.2 has not been fulfilled and satisfied on
or before the Closing Date, Seller may, by notice to Purchaser, elect
at anytime thereafter to terminate this Agreement, and if such
termination is due to Purchaser's fault, Seller shall be entitled to
retain the Deposit as full and complete liquidated damages (and not as
a penalty or forfeiture) in lieu of any and all other legal and
equitable rights which Seller may have hereunder, and all other funds
and documents theretofore delivered hereunder or deposited in escrow
by either party shall be promptly returned to such party. Upon such
termination and retention of the Deposit by Seller, except as set
forth in tie last sentence of the first grammatical paragraph of
Section 10.3 hereof, this Agreement shall become null and void and of
no further force or effect.
ARTICLE IX
NOTICES
9.1 Notices. Any notice, request, demand, instrument or other
document to be given or served hereunder shall be in writing and shall
be delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, or by overnight express
courier, or by facsimile transmission and addressed to the parties at
their respective addresses set forth
-20-
below, and the same shall be effective upon receipt if delivered
personally or two (2) business days after deposit in the mail, if
mailed, or upon receipt if deposited with an overnight express courier
or sent by facsimile transmission. A party may change its address or
facsimile transmission number for receipt of notices by service of a
notice of such change in accordance herewith.
If to Seller:
c/o JMB Realty Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇.▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇, L.L.C.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇.▇▇▇▇
and to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇.▇▇▇▇
If to Purchaser:
Inland Real Estate Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Facsimile Number: (▇▇▇) ▇▇▇.▇▇▇▇
with a copy to:
The Inland Group, Inc.
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile Number: (▇▇▇) ▇▇▇.▇▇▇▇
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ARTICLE X
ADDITIONAL COVENANTS
10.1 Entire Agreement, Amendments and Waivers. This Agreement
contains the entire agreement and understanding of the parties with
respect to the subject matter hereof, and the same may not be amended,
modified or discharged nor may any of its terms be waived except by an
instrument in writing signed by the party to be bound hereby.
10.2 Further Assurances. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and
assurances and to take all such further action before or after the
Closing as shall be necessary or desirable to fully carry out this
Agreement and to fully consummate and effect the transaction
contemplated hereby.
10.3 Survival and Benefit. Only those agreements, covenants,
indemnifications and obligations of the parties hereunder set forth in
Sections 4.3(b), 5.1, 7.l(c), 7.l(d), 7.4(b), and the representations
and warranties of Purchaser set forth in Section 7.3 shall survive the
Closing and inure to the benefit of and be binding upon the respective
successors and assigns of the parties. The indemnifications set forth
in Sections 5. 1 and 7. 1 (c) shall survive termination of this
Agreement prior to Closing.
Subject to the provisions of the second paragraph of Section
7.4(a), (i) the representations and warranties of Seller contained in
this Agreement shall survive the Closing only as hereinafter set forth
and (ii) any liability of Seller to Purchaser based on any inaccuracy
of Seller's representations and warranties contained in this Agreement
shall expire without notice from or to any party hereto (including
Purchaser's. designee) unless:
(i) Purchaser (or its designee) shall give written
notice to Seller within three (3) months after the Closing Date
that any of such representations and warranties were inaccurate
in any material respect, specifying in detail the nature of any
such inaccuracy and certifying to Seller that Purchaser and its
designee and Permittees were not aware of such inaccuracy at the
time of the Closing; and
(ii) Purchaser (or its designee) shall commence legal
proceedings against Seller for damages suffered as a result of
the inaccuracy specified in such notice given to Seller(pursuant
to 10.3(i) above) no later than December 1, 1997.
Notwithstanding anything herein to the contrary, and subject to
the provisions of Section 10.7 hereof, the maximum amount of liability
of Seller for any agreements, indemnification, obligations,
representations, and warranties which shall survive the Closing shall
be $400,000.00, including any costs of litigation which Purchaser or
its designee may incur to enforce such post-closing obligations or
liabilities of Seller.
10.4 No Third Party Benefits. This Agreement may not be
assigned by Purchaser. However, not earlier than two (2) days prior
to the Proration Date, Purchaser may nominate in
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writing a land trust as to which Purchaser is the sole beneficiary to
accept title to the Property.
Such nomination by Purchaser will not absolve or release
Purchaser from liability under this Agreement whether prior to or
subsequent to Closing. This Agreement is for the sole and exclusive
benefit of the parties hereto and the designee of Purchaser and no
third party is intended to or shall have any rights hereunder.
10.5 No Recording. The Purchaser agrees not to record this
Agreement or any short form, memorandum, or notice thereof in any
public or governmental office.
10.6 Interpretation.
(a) The headings and captions herein are inserted for
convenient reference only and the same shall not limit or construe
the paragraphs or Sections to which they apply or otherwise affect the
interpretation thereof.
(b) The terms hereby, "hereof," "hereto, "herein,"
"hereunder" and any similar terms shall refer to this Agreement, and
the term "hereafter" shall mean after and the term "heretofore" shall
mean before, the date of this Agreement.
(c) Words of the masculine, feminine or neuter gender shall
mean and include the correlative words of other genders and words
importing the singular number shall mean and include the plural number
and vice versa.
(d) Words importing persons shall include firms,
associations, partnerships (including limited partnerships), trusts,
corporations and other legal entities, including public bodies, as
well as natural persons.
(e) The terms "include", "including" and similar terms
shall be construed as if followed by the phrase "without being limited
to".
(f) Whenever under the terms of this Agreement the time for
performance of a covenant or condition or the last day to give notice
falls upon a Saturday, Sunday or holiday (whether in the United States
or Canada), such time for performance shall be extended to the next
business day. Otherwise all references herein to "day" shall mean
calendar days.
(g) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(h) In any action to enforce any of the terms of this
Agreement, the prevailing party shall be entitled to recover its
expenses, including reasonable attorneys fees and costs of litigation,
including those in any appellate proceedings.
(i) Time is of the essence of this Agreement.
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(j) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts each of
which shall be deemed an original, but all of which together shall
constitute the same instrument.
10.7 Seller's Exculpation. Notwithstanding anything herein to
the contrary, in the event of a default hereunder by Seller prior to
or at Closing, neither Seller nor any direct or indirect
partner(whether general or limited) of Seller, nor any shareholder of
any partner, nor any director, officer, employee, agent, shareholder,
trustee or beneficiary of any of them shall have any liability
hereunder or in connection therewith, and Purchaser's sole and
exclusive remedies are as set forth in Sections 8.1(b) and 10.3
hereof. In the event that Purchaser (or its designee) discovers,
after Closing, that Seller has breached any of the representations and
warranties made by Seller in this Agreement, they shall be limited to
resort against the assets of Seller only under Section 10.3 hereof and
no direct or indirect partner (whether general or limited) of Seller,
nor any shareholder of any partner, nor any director, officer,
employee, agent, shareholder, trustee, or beneficiary of any of them
shall be liable to Purchaser or its designee in connection with such
claimed breach of representation or warranty. For purposes of the
foregoing, neither the negative capital account of any partner of
Seller nor any obligation of any partner of Seller to restore a
negative capital account or to contribute capital to Seller or to any
partner of Seller, shall at any tune be deemed to be the property or
an asset of Seller or any partner of Seller (and neither Purchaser nor
any of its successors or assigns shall have any right to collect,
enforce or proceed against or with respect to any such negative
account or a partner's obligation to restore the same or contribute
capital to Seller or a partner of Seller).
10.8 Effective Date. Wherever herein contained the expression
"date hereof" is used it shall be deemed to mean the date that Seller
has accepted this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by Seller and Purchaser on the respective dates set forth
beneath each of their signatures and is intended to be effective as of
the latest such date.
PURCHASER:
INLAND REAL ESTATE CORPORATION
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Agent
Dated: June 11, 1997
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SELLER:
JMB INCOME PROPERTIES, LTD.-XIII
an Illinois limited partnership
By: JMB REALTY CORPORATION,
a Delaware corporation,
Managing General Partner
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Vice President
Date of Seller's Acceptance:
June 10, 1997
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