Exhibit 10.66
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
between
LARKSPUR LANDING, LLC,
a Delaware limited liability company
as SELLER
and
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
as BUYER
DATED: December 12, 2003
TABLE OF CONTENTS
Page
----
ARTICLE 1. PURCHASE AND SALE...............................................................1
1.1 Agreement to Buy and Sell ........................................................1
ARTICLE 2. PURCHASE PRICE .................................................................2
2.1 Purchase Price ...................................................................2
2.2 Payment of Purchase Price ........................................................2
ARTICLE 3. OPENING OF ESCROW ..............................................................2
3.1 Opening Escrow; Title Company ....................................................2
3.2 Escrow Instructions ..............................................................3
ARTICLE 4. BUYER'S INSPECTION .............................................................3
4.1 Deliveries by Seller .............................................................3
4.2 California Disclosure Report......................................................3
4.3 Review of Title...................................................................4
4.4 Access to the Project.............................................................5
4.5 Contingency Date; Buyer's Right to Terminate .....................................6
ARTICLE 5. REPRESENTATIONS, WARRANTIES AND COVENANTS.......................................7
5.1 Seller's Knowledge ...............................................................7
5.2 Seller's Representations and Warranties...........................................7
5.3 Buyer's Representations, Warranties and Covenants ................................8
5.4 Seller's Covenants...............................................................10
ARTICLE 6. CONDEMNATION; DAMAGE, DESTRUCTION .............................................11
6.1 Condemnation ....................................................................11
6.2 Damage or Destruction............................................................12
ARTICLE 7. CONDITIONS TO CLOSING..........................................................13
7.1 Seller's Conditions to Closing ..................................................13
7.2 Buyer's Conditions to Closing....................................................13
ARTICLE 8. CLOSING........................................................................14
8.1 Deposits Into Escrow ............................................................14
8.2 Closing Costs ...................................................................15
8.3 Prorations ......................................................................15
8.4 Closing of Escrow ...............................................................17
8.5 Possession.......................................................................18
-i-
TABLE OF CONTENTS
(continued)
Page
----
ARTICLE 9. BREACH OF AGREEMENT............................................................18
9.1 Seller's Termination.............................................................18
9.2 Seller's Remedies; Liquidated Damages............................................18
9.3 Buyer's Remedies ................................................................18
9.4 Seller's Maximum Aggregate Liability; Claims Period..............................19
ARTICLE 10. GENERAL PROVISIONS.............................................................19
10.1 Counterparts ....................................................................19
10.2 Entire Agreement ................................................................19
10.3 Counsel; Construction............................................................19
10.4 Choice of Law ...................................................................20
10.5 Severability.....................................................................20
10.6 Waiver of Covenants, Conditions or Remedies .....................................20
10.7 Business Day ....................................................................20
10.8 Exhibits and Schedules...........................................................20
10.9 Amendment .......................................................................20
10.10 Relationship of Parties .........................................................20
10.11 No Third-Party Benefit...........................................................20
10.12 Time of the Essence .............................................................20
10.13 Further Acts.....................................................................20
10.14 No Recording ....................................................................21
10.15 Assignment.......................................................................21
10.16 Attorneys' Fees .................................................................21
10.17 Brokers .........................................................................21
10.18 Notices..........................................................................21
10.19 Mutual Waivers of Jury Trail and Certain Damages ................................22
10.20
10.21 Notwithstanding anything to the contrary contained in this Agreement, in
accordance with Treasury Regulations Section 1.6011-4(b)(3)(iii), the
parties hereto (and each employee, representative, or other agent of any
party hereto may disclose to any and all persons, without limitation of
any kind, the tax treatment and tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to any party hereto
relating to such tax treatment and tax structure ................................23
-ii-
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
("AGREEMENT") is made and entered into this 12th day of December, 2003 (the
"EFFECTIVE DATE"), by and between LARKSPUR LANDING, LLC, a Delaware limited
liability company ("SELLER"), and INLAND REAL ESTATE ACQUISITIONS, INC., an
Illinois corporation ("BUYER").
RECITALS:
A. Seller owns certain real improved property commonly known as Larkspur
Landing Center, having approximately 173,794 net rentable square feet and
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Blvd. & Larkspur Landing Circle in the City of
Larkspur, County of Marin, State of
California.
B. Buyer desires to purchase that property, and Seller desires to sell
that property, on the terms and conditions contained in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Seller and Buyer agree as follows:
ARTICLE 1. PURCHASE AND SALE
1.1 AGREEMENT TO BUY AND SELL. Subject to all of the terms and
conditions of this Agreement, Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, all of Seller's right, title and interest
in and to the following (collectively, the "PROPERTY");
1.1.1 The parcels of real property described on EXHIBIT A,
together with all of Seller's right, title and interest in and to all rights,
privileges, easements and appurtenances thereto (collectively, the "LAND");
1.1.2 All buildings, structures, improvements and fixtures
located on the Land ("IMPROVEMENTS") (the Land and the Improvements are herein
collectively called the "PROJECT");
1.1.3 All appliances, fixtures, equipment, machinery,
furniture, furnishings, decorations and other personal property, if any, located
on or about the Project and used by Seller in the operation and maintenance
thereof ("TANGIBLE PERSONAL PROPERTY");
1.1.4 The following intangible personal property, to the
extent it is transferable, which is related to the ownership or operation of the
Project: warranties, permits, franchises, licenses, certificates of occupancy,
soil and other reports and studies, surveys, maps, utility contracts, plans and
specifications, engineering plans and studies, floor plans, landscape
plans and a non-exclusive right to the name "Larkspur Landing" ("INTANGIBLE
PERSONAL PROPERTY"), provided that Seller may retain copies of each of the
foregoing;
1.1.5 the Leases (defined in SECTION 5.2.3); and
1.1.6 the Service Contracts (defined in Section 5.2.4),
other than any Seller Contracts (defined below), which Buyer shall assume, as
provided below.
ARTICLE 2. PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Property shall be
Fifty Nine Million One Hundred Two Thousand Forty Nine Dollars ($59,102,049)(the
"PURCHASE PRICE").
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid as
follows:
2.2.1 Escrow Holder (defined below) hereby acknowledges
receipt of the sum of One Million Dollars ($1,000,000) (together with any
interest earned thereon, the "DEPOSIT") from Buyer, which is being held in an
interest-bearing account approved by Buyer. The Deposit shall be held and
disbursed by Escrow Holder in accordance with the terms of this Agreement. Buyer
shall have the right to terminate this Agreement by notifying Seller of such
termination at any time before 5:00 p.m. Pacific Time on December 16, 2003, in
which case, this Agreement shall automatically terminate, the Deposit shall
immediately be returned to Buyer and the parties shall have no further liability
to one another arising from this Agreement, except for those provisions which
expressly survive termination of this Agreement. If Buyer does not terminate
this Agreement on or before December 16, 2003 pursuant to the terms of this
Agreement, a portion of the Deposit equal to Two Hundred Fifty Thousand Dollars
($250,000) (such portion being referred to herein as the "INITIAL DEPOSIT")
shall be non-refundable to Buyer and shall be applied to the Purchase Price at
Closing or paid to Seller as consideration for entering into this agreement
except as expressly set forth in SECTIONS 2.2.1, 4.3.2, 5.2.9, 6.1, 6.2.2 and
9.3 hereof. If Buyer does not terminate this Agreement on or before December 22,
2003 (the "CONTINGENCY DATE") pursuant to the terms of this Agreement, the
remainder of the Deposit (such remainder being referred to herein as the
"ADDITIONAL DEPOSIT") shall become non-refundable to Buyer and shall be applied
to the Purchase Price at Closing or paid to Seller as liquidated damages excepts
as expressly set forth in SECTIONS 2.2.1, 4.3.2, 4.5, 5.2.9, 6.1, 6.2.2, and 9.3
hereof.
2.2.2 The balance of the Purchase Price, subject to
adjustment by reason of applicable prorations and the allocation of closing
costs described below, shall be deposited by Buyer into the Escrow in
immediately available funds on or before 9:00 a.m. Pacific Time on the January
13, 2004 (the "CLOSING DATE").
ARTICLE 3. OPENING OF ESCROW
3.1 OPENING ESCROW: TITLE COMPANY. Within two (2) business days
after the Effective Date, the parties shall deposit into escrow (the "ESCROW")
with Chicago Title and Trust (the "ESCROW HOLDER"), whose name and address are
set forth on the signature page to this Agreement, three (3) fully executed
counterparts of this Agreement. The parties agree that
2
Chicago Title Insurance Company ("TITLE COMPANY") shall act as the title company
and issue the Title Report and the Title Policy described below.
3.2 ESCROW INSTRUCTIONS. This Agreement shall constitute both an
agreement between Seller and Buyer and escrow instructions for Escrow Holder
with respect to the subject matter of this Agreement. Escrow Holder shall
indicate its willingness to act as Escrow Holder by executing and returning one
counterpart of this Agreement to each of Buyer and Seller. Seller and Buyer
shall promptly execute and deliver to Escrow Holder any separate or additional
escrow instructions requested by Escrow Holder which are consistent with the
terms of this Agreement. Any separate or additional instructions shall not
modify the provisions of this Agreement unless the parties agree otherwise and
expressly set forth their desire to so modify such provisions.
ARTICLE 4. BUYER'S INSPECTION
4.1 DELIVERIES BY SELLER. Buyer hereby acknowledges receipt of
those documents and reports listed in EXHIBIT D (collectively, with all other
documents, reports and materials delivered to Buyer by Seller or otherwise
actually reviewed by Buyer, the "DUE DILIGENCE MATERIALS"). Seller shall also
deliver to Buyer, and the Due Diligence Materials also include, any other
specific items as Buyer may reasonably request, to the extent the same are in
Seller's possession or under its control and are not (i) proprietary to Seller
or its managers, (ii) confidential, (iii) property appraisals, (iv) privileged,
and/or (v) organizational documents of Seller or its affiliates. Except as set
forth in SECTION 5.2, by furnishing Buyer with the Due Diligence Materials,
Seller does not make any warranty or representation with respect to the
accuracy, completeness, conclusions or statements expressed in the Due Diligence
Materials, nor does Seller represent or warrant that these are the sole
materials now available with respect to the matters covered thereby. Seller
assumes no duty to furnish Buyer with any other existing information, reports or
updates of such Due Diligence Materials. Buyer hereby waives any and all claims
against Seller arising out of the accuracy, completeness, conclusions or
statements expressed in the Due Diligence Materials furnished by Seller.
4.2
CALIFORNIA DISCLOSURE REPORT. Seller acknowledges that the
Disclosure Statutes (hereinafter defined) provide that a seller of real property
must make certain disclosures regarding certain natural hazards potentially
affecting the real property, as more particularly provided therein. As used in
this Agreement, "DISCLOSURE STATUTES" means, collectively,
California Government
Code Sections 8589.3, 8589.4 and 51183.5,
California Public Resources Code
Sections 2621.9, 2694 and 4136 and any other
California statutes that require
Seller to make disclosures concerning real property. Seller shall promptly order
a Natural Hazard Disclosure Report for the Project (the "NATURAL HAZARD REPORT")
and shall deliver the Natural Hazard Report to Buyer promptly upon Seller's
receipt thereof. The Natural Hazard Report shall be deemed part of the Due
Diligence Materials and Seller shall use its best efforts to cause the Natural
Hazard Report to be delivered to Buyer no later than five (5) days after the
Effective Date. Buyer hereby agrees as follows with respect to the Disclosure
Statutes and the Natural Hazard Report Seller will deliver: (i) the delivery of
the Natural Hazard Report to Buyer as provided above shall be deemed to satisfy
all obligations and requirements of Seller under the Disclosure Statutes; (ii)
Seller shall not be liable for any error or inaccuracy in, or omission from, the
information in the Natural Hazard Report; (iii) the Natural Hazard Report is
being provided
3
by Seller for purposes of complying with the Disclosure Statutes and shall not
be deemed to constitute a representation or warranty by Seller as to the
presence or absence in, at or around the Project of the conditions that are the
subject of the Disclosure Statutes; and (iv) the Natural Hazard Report is for
Seller and Buyer only and is not for the benefit of, or to be used for any
purpose by, any other party, including, without limitation, insurance companies,
lenders, or governmental agencies.
4.3 REVIEW OF TITLE.
4.3.1 Buyer hereby acknowledges receipt of a copy of a
survey of the Project, which Seller obtained in 1999 (as such may be updated as
provided herein, the "SURVEY"). Buyer shall cause Title Company to deliver to
Buyer and Seller a preliminary title report ("TITLE REPORT") issued by the Title
Company covering the Land dated no more than thirty (30) days prior to the
Effective Date, together with copies of all documents referenced in Schedule B
thereof. If Buyer elects to obtain an ALTA extended coverage policy of title
insurance, Buyer shall obtain an updated survey of the Project at Buyer's
expense. The updated survey shall be certified to Seller, Buyer and Title
Company.
Buyer shall have from the date hereof until December 16, 2003 (the "TITLE REVIEW
PERIOD") within which to notify Seller of any exceptions to title as shown in
the Title Report or Survey which Buyer reasonably disapproves. Buyer shall have
the right to disapprove, in its reasonable discretion, any title or survey
matters first contained in or first referred to on or after the beginning of the
Title Review Period in any supplemental reports or updates to the Title Report
or Survey within three (3) business days after receipt thereof. Any exceptions
which are timely disapproved by Buyer pursuant to this section shall be referred
to collectively as the "TITLE OBJECTIONS". If Buyer fails to timely notify
Seller of its disapproval of any matters shown in the Title Report or Survey or
any supplements or updates thereto, Buyer shall conclusively be deemed to have
approved such matters. Any such matter not timely disapproved in writing by
Buyer shall constitute a "PERMITTED EXCEPTION" hereunder. If Buyer timely
notifies Seller of any Title Objections, then, at Seller's sole discretion,
Seller may elect (but shall not be obligated) to remove or cause to be removed
any of the Title Objections at Seller's expense, or to cause any Title
Objections to be insured against by the Title Company, and shall be entitled to
a reasonable adjournment of the Closing (not to exceed thirty (30) days) for the
purpose of such removal, which removal will be deemed effected by the issuance
of title insurance insuring against the effect of the Title Objections. Seller
shall notify Buyer in writing ("SELLER'S TITLE NOTICE") on or before the date
that is three (3) business days from the end of the Title Review Period
("SELLER'S CURE NOTICE DATE") whether Seller elects to remove or to cause the
Title Company to insure against the same. Seller's failure to deliver timely
Seller's Title Notice to Buyer, or failure to address any Title Objection in any
such notice, shall constitute Seller's election not to cure such Title
Objection. Notwithstanding the foregoing, Seller agrees to remove as exceptions
to title to the Property (i) all mortgages and deeds of trust executed by Seller
and recorded against the Property and any other voluntary monetary liens placed
on record against the Property by Seller, (ii) all delinquent property taxes (if
any) as of the Closing, and (iii) any mechanic's or materialmen's liens of
record or any other involuntary monetary liens of record which are caused by
Seller, provided, however, that Seller shall not be obligated to expend more
than $10,000 in the aggregate to bond over or otherwise insure over such
involuntary liens.
4
4.3.2 If Seller elects or is deemed to have elected not to
cause any Title Objections to be removed or insured against prior to or at the
Closing, Buyer may elect by notice to Seller within one (1) business day after
Seller's Cure Notice Date to terminate this Agreement, in which event the
Deposit shall immediately be returned to Buyer and, thereafter, the parties
shall have no further rights or obligations hereunder except for obligations
which expressly survive the termination of the Agreement. Buyer's failure to
give such notice of termination on or before such date shall constitute Buyer's
waiver of any Title Objections which Seller is unwilling to cure, in which event
such Title Objections shall be deemed "Permitted Exceptions" and the Closing
shall occur as herein provided without any reduction of or credit against the
Purchase Price.
4.4 ACCESS TO THE PROJECT.
4.4.1 Seller hereby grants to Buyer and its agents
designated in writing to Seller ("BUYER'S AGENTS") a nonexclusive license to
enter onto the Project for the purpose of conducting an inspection of the
Project in connection with Buyer's due diligence activities. In exercising such
license, Buyer and Buyer's Agents shall not interfere with tenants of the
Project or with the normal conduct by Seller and its managers of their business
at the Project. Any such inspection shall be at the sole cost of Buyer and shall
be on the terms set forth in this SECTION 4.4.
4.4.2 At least forty-eight (48) hours prior to its entry
onto the Project, Buyer shall: (a) deliver to Seller written notice of its
intention to enter the Project and the proposed date, time and purpose of such
entry (Buyer may enter only on the dates and at the times contained in such
notices, and Seller shall have the right to have one or more of its agents or
representatives accompany Buyer and Buyer's agents at all times while Buyer or
Buyer's Agents are on the Project); and (b) provide Seller with sufficient
evidence that Buyer and Buyer's Agents who are to enter upon the Project are
adequately covered by policies of insurance issued by a carrier reasonably
acceptable to Seller insuring Buyer and Seller against any and all liability
arising out of Buyer's or Buyer's Agents' entry upon and inspection of the
Project, including, without limitation, any loss or damage to the Property, with
coverage in the amount of not less than One Million Dollars ($1,000,000) per
occurrence. Buyer shall at its expense comply with all applicable federal, state
and local laws, statutes, rules, regulations, ordinances or policies in
conducting any inspection of the Project.
4.4.3 Buyer agrees to keep the Property free from any liens
arising out of any work performed, materials furnished or obligations incurred
by or on behalf of Buyer or Buyer's Agents with respect to any Inspection of the
Property. If any such lien at any time shall be filed, Buyer shall cause the
same to be discharged of record within twenty (20) days thereafter by satisfying
the same or, if Buyer in its discretion and in good faith determines that such
lien should be contested, by recording a bond which causes the lien to be on the
bond rather than on the Property. The provisions of this SECTION 4.4.3 shall
survive any termination of this Agreement.
4.4.4 If Buyer or Buyer's Agents wish to perform any
inspection which involves the removal or disturbance of any physical aspect of
the Project (such as environmental testing) (any such testing being referred to
herein as "Invasive Testing"), Buyer
5
shall deliver a written notice (an "Invasive Testing Proposal") to Seller which
shall include (1) a reasonably detailed description of the scope of Buyer's
proposed Invasive Testing (including procedures and locations), (2) the name,
address and phone number of the environmental consultant and the laboratories to
be used in connection with such procedures, (3) evidence of liability insurance
maintained by such consultant, and (4) such other information as may be
reasonably requested by Seller regarding the nature and scope of the testing.
Buyer shall not undertake any Invasive Testing without first obtaining Seller's
express written approval of an Invasive Testing Proposal, which approval may be
given or withheld in Seller's sole and absolute discretion, and shall conduct
any Invasive Testing only as set out in the Invasive Testing Proposal.
4.4.5 Buyer hereby agrees to indemnify, defend and hold
harmless Seller and its officers, directors, members, employees, contractors,
agents, partners, affiliates, successors and assigns (collectively, the
"INDEMNITEES") from and against any and all claims, demands, causes of action,
suits, sums paid in settlement of any of the foregoing, judgments, losses,
damages, injuries, liabilities, penalties, enforcement actions, fines, taxes,
liens, encumbrances, costs or expenses (including, without limitation,
reasonable attorneys' fees) (collectively, "CLAIMS") arising from or relating to
the inspection, physical testing or activities conducted on the Project by Buyer
or Buyer's Agents. The provisions of this SECTION 4.4.5 shall survive the
Closing or any termination of this Agreement.
4.4.6 Buyer shall at its expense clean up and repair any
damage to the Project caused by Buyer or Buyer's Agents, in whatever manner
necessary, after Buyer's or Buyer's Agents' entry thereon so that the Project
shall be returned to the same condition that existed prior to Buyer's or Buyer's
Agents' entry thereon. The provisions of this SECTION 4.4.6 shall survive any
termination of this Agreement.
4.4.7 Any and all reports and data that Buyer and/or Buyer's
Agents discover, commission or generate in connection with or resulting from
their due diligence activities on the Project (collectively, the "INFORMATION")
shall be deemed confidential, and Buyer agrees that prior to the Closing and
without the prior written consent of Seller, which consent may be withheld in
Seller's sole and absolute discretion, Buyer will: (a) keep the Information
confidential, unless such Information is in the public domain or is required to
be disclosed by applicable law or judicial process, (b) use the Information only
in connection with Buyer's evaluation of the Property; and (c) use reasonable
efforts to safeguard the Information from unauthorized disclosure; and (d) not
disclose to any person (1) that the Information has been made available to
Buyer, (2) that Buyer has inspected any portion of the Property, (3) that
discussions with respect to the sale of the Property are taking place, or (4)
any other facts with respect to such discussions, including the status thereof.
Buyer shall indemnify the Seller from and against any and all Claims resulting
from, arising out of or in connection with Buyer's breach of its obligations
under this SECTION 4.4.7. The provisions of this SECTION 4.4.7 shall survive any
termination of this Agreement.
4.5 CONTINGENCY DATE; BUYER'S RIGHT TO TERMINATE. Buyer shall have
the right to terminate this Agreement by notifying Seller of such termination at
any time before 5:00 p.m. Pacific Time on the Contingency Date. Buyer shall send
a copy of its notice, if any, to Escrow Holder. If Buyer terminates this
Agreement pursuant to this SECTION 4.5, this Agreement shall
6
automatically terminate, the Initial Deposit shall immediately be paid to Seller
as consideration for entering into this Agreement (less one half of the Escrow
termination and title costs) and Buyer shall be entitled to the immediate return
of the Additional Deposit (less one half of the Escrow termination and title
costs), Escrow Holder shall return to the parties, respectively, the documents
they have deposited into Escrow and the parties shall have no further liability
to one another arising from this Agreement, except that the provisions of the
following Sections of this Agreement shall survive such termination and be
enforceable by the parties after termination: namely, SECTIONS 4.4.3, 4.4.5
through 4.4.7, 5.3.4 through 5.3.6, 8.3, 9.4, 10.16, 10.17 and 10.21. Nothing
contained in the preceding sentence shall entitle Seller to receive the Initial
Deposit if Buyer would otherwise be entitled to receive the Initial Deposit
pursuant to the express terms of SECTIONS 2.2.1, 4.3.2, 5.2.9, 6.1, 6.2.2 or 9.3
hereof. If Buyer does not so terminate this Agreement, it shall be deemed to
have approved its due diligence investigation of the Property, including without
limitation all zoning, all laws, ordinances and regulations pertaining to the
Project and all geological and environmental matters pertaining to the Property.
ARTICLE 5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 SELLER'S KNOWLEDGE. All of Seller's representations made below
which are limited to Seller's knowledge are made to the present, actual
knowledge of Seller. As used herein, the present, actual knowledge of Seller is
limited solely to matters actually within the current, actual knowledge with no
duty of due diligence or inquiry of ▇▇▇▇ ▇▇▇, the senior vice president
responsible for the Property. and ▇▇▇▇▇ ▇▇▇▇▇▇. Such person has not undertaken
or inquired into (having no duty to undertake or to inquire into) any
independent investigation or verification of the matters set forth in any
representation or warranty, including without limitation an investigation or
review of any documents, certificates, agreements or information that may be in,
or may hereafter come into, the possession of Seller or any entity affiliated in
any manner with Seller. Buyer acknowledges that the individual named above is
named solely for the purpose of defining and narrowing the scope of Seller's
knowledge and not for the purpose of imposing any liability on or creating any
duties running from such individual to Buyer. Buyer covenants that it will bring
no action of any kind against such individual related to or arising out of these
representations and warranties.
5.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants the following to Buyer as of the date hereof.
5.2.1 DUE FORMATION AND AUTHORIZATION. Seller is duly
organized and validly existing under the laws of the state of its formation and
has all requisite power, authority and legal right to execute, deliver and
perform the terms of this Agreement. This Agreement constitutes valid and
legally binding obligations of Seller enforceable in accordance with their
respective terms.
5.2.2 CONSENT. No consent, approval or authorization by any
individual or entity or any court, administrative agency or other governmental
authority is required in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated by this Agreement
by Seller other than those consents, approvals and authorizations which shall be
obtained by Seller prior to Closing. The consummation of the transactions
contemplated by this Agreement will not result in a breach of,
7
or constitute a default under, any mortgage, deed of trust, bank loan, credit
agreement or other instrument to which Seller is a party or by which Seller may
be bound or affected.
5.2.3 SCHEDULE OF LEASES. Attached as EXHIBIT E is a
complete and accurate schedule (the "SCHEDULE OF LEASES") of all leases and
other rental agreements affecting the Project to which Seller is a party or by
which it is bound as of the date hereof (the "LEASES"). True and complete copies
of all Leases have been delivered or made available to Buyer. Seller has not
given or received any notice of default under the Leases which has not been
cured.
5.2.4 SERVICE CONTRACTS. Attached as EXHIBIT F is a list of
certain management, maintenance and service agreements pertaining to the Project
(the "SERVICE CONTRACTS"). Seller has delivered to Buyer copies of all the
Service Contracts.
5.2.5 LITIGATION. Seller has not received written notice of
any pending (or Seller's knowledge, threatened) lawsuits affecting all or any
material portion of Seller's interest in the Property, including, but not
limited to, judicial, municipal or administrative proceedings in eminent domain,
except as previously disclosed to Buyer in writing.
5.2.6 COMPLIANCE WITH LAWS. Seller has not received any
written notice from any governmental authority to the effect that the Property
is not in compliance with applicable laws in any material respect, which
noncompliance has not been remedied.
5.2.7 EMINENT DOMAIN. There are no pending, and Seller has
not received any written notice of any threatened, condemnation or eminent
domain proceedings affecting the Property or any portion thereof.
5.2.8 OFF RECORD AGREEMENTS. To Seller's knowledge, there
are no off-record development, public financing or public improvement agreements
affecting the Property, except as previously disclosed in writing to Buyer.
5.2.9 INCORRECT REPRESENTATION OR WARRANTY. If Buyer obtains
knowledge that any representation or warranty of Seller herein is incorrect in
any material respect, Buyer shall promptly notify Seller. Upon receiving such
notification, Seller shall have the right take such action as shall be necessary
in order to render correct the representation or warranty which was incorrect
(except in the case of an intentional misrepresentation which shall be a default
of Seller pursuant to the terms of this Agreement). If Seller fails to notify
Buyer within ten (10) days after receiving Buyer's notice that Seller intends to
take such action, then Buyer's sole remedy, assuming that Buyer was correct in
stating that Seller's representation or warranty was materially incorrect, shall
be to terminate this Agreement by notice to Seller given within five (5) days
after the expiration of such ten (10) day period, in which case Buyer shall be
entitled to the immediate return of the Deposit; otherwise, Buyer shall be
deemed to have waived any right to terminate this Agreement or to recover from
Seller on account of such incorrectness. If Buyer obtains knowledge prior to the
Closing that any representation or warranty of Seller herein is incorrect in any
material respect but does not notify Seller as provided above, Buyer will be
deemed to have forever waived any right to recover from Seller on account of
such incorrectness.
8
5.3 BUYER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Buyer's
knowledge, for the purposes of this SECTION 5.3, shall be limited to the actual
knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇. Buyer hereby covenants and agrees with Seller as
follows and represents and warrants the following to Seller, which
representations and warranties are true and correct in all material respects as
of the Effective Date and as of the Closing.
5.3.1 DUE FORMATION AND AUTHORIZATION. Buyer is duly
organized and validly existing under the laws of the state of its formation and
has all requisite power, authority and legal right to execute, deliver and
perform the terms of this Agreement. This Agreement constitutes valid and
legally binding obligations of Buyer enforceable in accordance with their
respective terms.
5.3.2 AUTHORITY. Buyer has the power and authority to enter
into this Agreement, to own the Property and to consummate the transactions
contemplated by this Agreement. This Agreement and all instruments, documents
and agreements to be executed by Buyer in connection herewith are, or when
delivered shall be, duly authorized, executed and delivered by Buyer and are
valid, binding and enforceable obligations of Buyer. Each individual executing
this Agreement on behalf of Buyer represents and warrants to Seller that he or
she is duly authorized to do so.
5.3.3 CONSENT. No consent, approval or authorization by any
individual or entity or any court, administrative agency or other governmental
authority is required in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated by this Agreement
by Buyer. The consummation of the transactions contemplated by this Agreement
will not result in a breach of, or constitute a default under, any mortgage,
deed of trust, bank loan, credit agreement or other instrument to which Buyer is
a party or by which Buyer may be bound or affected.
5.3.4 "AS-IS" SALE. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS PURCHASING THE PROPERTY
IN AN "AS-IS" CONDITION "WITH ALL FAULTS" AND WITHOUT ANY WARRANTIES,
REPRESENTATIONS OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, OF ANY NATURE
WHATSOEVER FROM OR ON BEHALF OF SELLER, INCLUDING WITHOUT LIMITATION, THOSE OF
FITNESS FOR A PARTICULAR PURPOSE AND USE.
Buyer acknowledges that (1) Buyer has had and/or will have, pursuant to this
Agreement, an adequate opportunity to make such legal, factual and other
inquiries and investigation as Buyer deems necessary, desirable or appropriate
with respect to the Property, and (2) except as otherwise expressly set forth in
this Agreement, neither Seller, nor anyone acting for or on behalf of Seller,
has made any representation, warranty, promise or statement, express or implied,
to Buyer, or to anyone acting for or on behalf of Buyer, concerning the Property
or the condition, use or development thereof. Buyer represents that, in entering
into this Agreement, Buyer has not relied on any representation, warranty,
promise or statement, express or implied, of Seller, or anyone acting for or on
behalf of Seller, other than as expressly set forth in this Agreement, and that
Buyer shall purchase the Property based upon Buyer's own prior investigation and
examination of the Property. If Buyer elects not to inspect the Property or to
terminate this
9
Agreement on or before the Contingency Date, such election will be made at
Buyer's sole discretion, in reliance solely upon the tests, analyses,
inspections and investigations that Buyer makes, or had the right to make and
opted not, or otherwise failed, to make, and not in reliance upon any alleged
representation made by or on behalf of Seller. The provisions of this SECTION
5.3.4 shall survive indefinitely any Closing or termination of this Agreement
and shall not be merged into the Closing documents.
5.3.5 HAZARDOUS MATERIALS WAIVER. Buyer, on behalf of
itself, its successors and assigns, hereby releases the Indemnitees from and
against any and all Claims known or unknown, arising out of related in any way
to the presence, misuse, use, disposal, release or threatened release of any
Hazardous Materials at the Project and any liability or Claim related to the
Project arising under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of
1986, the Resource Conservation and Recovery Act, and the Toxic Substance
Control Act, all as amended, or any other state, local, or federal environmental
law, rule or regulation. The foregoing release shall not be deemed to obligate
Buyer to indemnify Seller for any claims against Seller by any governmental
agency or any third party which is not a successor or assign of Purchaser. Buyer
acknowledges that unknown and unsuspected Hazardous Materials may hereafter be
discovered on or about the Project, and Buyer knowingly releases Seller from any
and all liability related thereto. The provisions of this SECTION 5.3.5 shall
survive indefinitely any Closing or termination of this Agreement and shall not
be merged into the Closing documents.
"HAZARDOUS MATERIALS" means any chemical, substance, material, controlled
substance, object, condition, waste, living organisms or combination thereof
which is or may be hazardous to human health or safety or to the environment due
to its radioactivity, ignitability, corrosiveness, reactivity, explosivity,
toxicity, carcinogenicity, mutagenicity, phytotoxicity, infectiousness or other
harmful or potentially harmful properties or effects, including, without
limitation, petroleum hydrocarbons and petroleum products, lead, asbestos,
radon, polychlorinated biphenyls (PCBs) and all of those chemicals, substances,
materials, controlled substances, objects, conditions, wastes, living organisms
or combinations thereof which are now or become in the future listed, defined or
regulated in any manner by any federal, state or local law based upon, directly
or indirectly, such properties or effects.
5.3.6 MATERIAL DEFECTS. Buyer, on behalf of itself, its
successors and assigns, hereby releases the Indemnitees from and against any and
all Claims known or unknown, arising out of, or related in any way to the
condition of the Project, the condition of the structure of the Improvements or
any equipment, systems and appliances related thereto (including any heating,
ventilation, plumbing, electrical and air conditioning systems, wiring,
telecommunications systems, paving, roofing and other such aspects of the
Project, including without limitation any liability of Indemnitees for latent
defects or for claims under Section 337.15 of the
California Code of Civil
Procedure) the valuation, salability or utility of the Property, or its
suitability for any purpose whatsoever. Without limitation on the foregoing,
Buyer acknowledges that it will be responsible for the replacement of the
existing stairway and second floor deck directly above the space leased to
▇▇▇▇▇▇'▇ at the Property. The provisions of this SECTION 5.3.6 shall survive
indefinitely any Closing or termination of this Agreement and shall not be
merged into the Closing documents.
10
5.3.7 SECTION 1542 WAIVER. Insofar as the foregoing releases
are concerned, Buyer hereby waives any and all rights and benefits which it now
has, or in the future may have, by virtue of the provisions of Section 1542 of
the
California Civil Code, which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Buyer acknowledges that it has consulted legal counsel of its choosing
with respect to the foregoing release and
California Civil Code Section 1542 and
further acknowledges that the provisions of SECTIONS 5.3.4, 5.3.5 and 5.3.6 have
been fully negotiated and agreed upon in light thereof.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------- ----------------
Seller's Initials Buyer's Initials
5.4 SELLER'S COVENANTS.
5.4.1 ESTOPPEL CERTIFICATES. Seller shall use commercially
reasonable efforts to deliver to Buyer on or before the date that is ten (10)
days prior to the Closing Date an estoppel certificate in the form of EXHIBIT H
("TENANT ESTOPPEL") executed by each tenant listed in the Schedule of Leases.
5.4.2 LEASE AMENDMENTS. Between the date hereof and the
Closing, Seller shall not, without first obtaining Buyer's prior written
consent, enter into any new lease affecting the Project or any modification to
any Lease. Buyer shall not unreasonably withhold its consent and shall be deemed
to have consented to any proposed lease or lease modification if it neither
approves nor rejects the same within five (5) business days of receipt of
Seller's written request for same, if the request includes a copy of the
proposed lease or modification. Upon Buyer's approval or deemed approval, Seller
shall be entitled to enter into such lease or lease modification, and at the
Closing, Buyer shall (1) credit Seller through Escrow with all amounts Seller
has paid by way of leasing commissions and tenant improvements related to such
leases or amendments and (2) assume in a manner acceptable to Seller any
liability of Seller for leasing commissions and tenant improvements payable
after the Closing relating thereto and disclosed in Seller's request for
approval. Notwithstanding the foregoing, Seller may, without Buyer's consent,
enter into a lease for space at the Property with E&O Trading Company on
substantially the same terms shown on EXHIBIT O and otherwise consistent in all
material respects with Seller's standard lease form (a copy of which was
provided to Buyer as part of the Due Diligence Materials).
5.4.3 SERVICE CONTRACTS. At Buyer's election, made on or
before the Contingency Date by written notice to Seller, Seller shall cause any
Service Contracts which are not terminable upon thirty (30) or fewer days notice
to be terminated upon the Closing at Seller's expense (any such Service
Contracts which Buyer shall have so elected to be terminated being referred to
herein as "SELLER CONTRACTS"). Following the Contingency Date until the Closing
11
Date, upon Buyer's election made by delivering written notice to Seller, Seller
shall use commercially reasonable efforts to cause any other Service Contracts
identified by Buyer to be terminated upon the Closing or as soon as possible
thereafter, provided that Seller shall not be required to pay any termination
fees or other penalties in connection with such termination. Seller shall, to
the extent assignable, assign its interest in any Service Contracts which will
survive the Closing (other than any Seller Contracts) to Buyer at Closing and
Buyer shall assume Seller's obligations thereunder. Without Buyer's prior
written consent, which consent shall not be unreasonably withheld, between the
Effective Date and the Closing Date, Seller shall not amend any of the Service
Contracts (other than any Seller Contracts) in any material way or become a
party to any new Service Contract unless any such contract is terminable without
penalty on or before the Closing Date.
5.4.4 OPERATION AND MAINTENANCE. Between the Effective Date
and the Closing Date, Seller shall (1) generally operate the Project in the same
manner in which Seller operated the Project prior to the Effective Date (such
operation obligations not including capital expenditures or expenditures not
incurred in the ordinary course of business) and (2) maintain the Project in its
present order and condition, and deliver the Project on the Closing Date in
substantially the same condition it is in on the Contingency Date, reasonable
wear and tear excepted and subject to SECTION 6.1 and 6.2.
5.4.5 INSURANCE. Until the Closing, Seller shall keep the
Property insured against fire, vandalism and other loss, damage and destruction
to the same extent as it has customarily insured the same. Seller's insurance
policies shall not be assigned to Buyer at the Closing, and Buyer shall be
obligated to obtain its own insurance coverage from and after the Closing.
5.4.6 ▇▇▇▇▇ CERTIFICATES. Seller shall use commercially
reasonable efforts to deliver to Buyer at Closing an ▇▇▇▇▇ Form 25 (liability)
Certificate of Insurance and an ▇▇▇▇▇ Form 27 (property) Evidence of Insurance
with respect to any insurance required under the Leases, naming Buyer as an
insured and Buyer's lender (if any) as mortgagee, as their interests appear.
ARTICLE 6. CONDEMNATION; DAMAGE, DESTRUCTION
6.1 CONDEMNATION. In the event that all or any substantial portion
of the Project shall be taken in condemnation or under the right of eminent
domain prior to the Closing Date, Seller shall promptly notify Buyer thereof.
Within five (5) business days after receipt of the foregoing notice, Buyer shall
notify Seller and Escrow Holder, electing either: (a) to proceed with this
transaction and Closing in accordance with this Agreement notwithstanding such
condemnation; or (b) to terminate this Agreement. If less than a substantial
portion of the Project shall be taken or if Buyer elects to proceed with this
transaction pursuant to CLAUSE (a) above, there shall be no reduction in the
Purchase Price and Seller shall (x) deliver to Buyer at the Closing, or as soon
thereafter as available, any proceeds actually received by Seller attributable
to the Property from such condemnation or eminent domain proceeding, and (y)
transfer and assign to Buyer at Closing any and all rights Seller may have with
respect to payments by or from and with respect to recovery against any party
for damages or compensation relating to the Property on account of such
condemnation or eminent domain
12
proceeding. A failure by Buyer to notify Seller in writing within five (5)
business days after receiving written notice of such taking shall be deemed an
election to proceed under CLAUSE (a) in this subsection. If Buyer elects (or is
deemed to elect) to proceed under CLAUSE (a) in this subsection, Seller shall
not compromise, settle or adjust any claims to such award without Buyer's prior
written consent. For purposes of this provision, a "substantial portion" of the
Project shall be deemed to include (1) any taking of any portion of the office
building on the Land or the Land underlying the office building, or (2) any
taking of such number of parking spaces as would leave the Project in violation
of any zoning ordinance, lease, reciprocal easement agreement or declaration of
covenants, conditions and restrictions affecting the Project, or (3) any taking
which gives rise to a right on behalf of any tenant under a Lease to terminate
its Lease (and such right has not been previously waived or deemed waived by the
tenant), or (4) any taking which materially alters the means of vehicular access
to the Project. In the event Buyer notifies Seller in timely fashion of its
election to terminate this Agreement pursuant to CLAUSE (b) above, this
Agreement shall terminate, the Deposit shall immediately be returned to Buyer
and neither party shall have any further rights or obligations hereunder, except
those rights or obligations which expressly survive termination.
6.2 DAMAGE OR DESTRUCTION. In the event of any damage to or
destruction of the Property prior to the Closing:
6.2.1 If such damage or destruction is covered by Seller's
insurance, and the cost to repair or replace such damage or destruction is less
than or equal to Seven Hundred Fifty Thousand Dollars ($750,000), and such
damage or destruction can with reasonable efforts be repaired within one hundred
twenty (120) days of the date on which such damage occurs, Seller shall have no
obligation to repair such damage or destruction, and the Closing nevertheless
shall occur as otherwise provided for in this Agreement, except that Seller
shall, at Seller's option, either (A) perform any necessary repairs, or (B)
assign to Buyer upon the Closing all insurance proceeds paid or payable to
Seller in connection with such occurrences, exclusive of any proceeds of
business interruption or rent continuation insurance paid to Seller prior to
Closing, in which event Buyer shall receive a credit against the Purchase Price
equal to the amount of any deductible under Seller's insurance applicable to
such occurrences. If Seller elects to perform repairs to the Property, Seller
shall use reasonable efforts to promptly complete such repairs, and the Closing
Date shall be extended for a reasonable time to allow for the completion of such
repairs.
6.2.2 If (A) such damage or destruction is not covered by
Seller's insurance, or (B) the cost to repair or replace such damage or
destruction exceeds Seven Hundred Fifty Thousand Dollars ($750,000), or (C) such
damage or destruction cannot with reasonable efforts be repaired within one
hundred and twenty (120) days of the date on which such damage occurs, or (D)
any tenant under a Lease has the right as the result of such damage or
destruction to terminate its Lease (and such right has not been previously
waived or deemed waived by the tenant), then Seller shall promptly notify Buyer
and, within five (5) business days after receipt of such notice, Buyer shall
deliver written notice to Seller and Escrow Holder, electing either: (x) to
proceed with this transaction and Closing in accordance with this Agreement
notwithstanding such damage or destruction, in which event Seller will have no
obligation to repair such damage or destruction, and the Closing shall occur as
otherwise provided in this Agreement; in such case, Seller shall assign to Buyer
upon the Closing all insurance proceeds
13
paid or payable to Seller in connection with such occurrences to the extent
Buyer is not entitled to reimbursement of the same pursuant to the Leases, other
than proceeds expended prior to Closing in restoration and repair undertaken by
Seller in its sole discretion and any proceeds of business interruption or rent
continuation insurance paid to Seller prior to Closing, and Buyer shall receive
a credit against the Purchase Price equal to the amount of any deductible under
Seller's insurance applicable to such occurrences to the extent Buyer is not
entitled to reimbursement of the same pursuant to the Leases; or (y) to
terminate this Agreement, in which case this Agreement shall terminate, the
Deposit shall immediately be returned to Buyer and neither party shall have any
further rights or obligations hereunder except those rights or obligations which
expressly survive termination. Buyer's failure to deliver either of such notices
to Seller and Escrow Holder within such five (5) business day period shall
constitute Buyer's election to proceed to Closing under CLAUSE (x) above.
ARTICLE 7. CONDITIONS TO CLOSING
7.1 SELLER'S CONDITIONS TO CLOSING. Seller's obligation to close
the transactions contemplated by this Agreement is conditioned on all of the
following any or all of which may be waived by Seller in writing, at its sole
option:
7.1.1 All representations and warranties made by Buyer in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date, as if made on and as of such date; and
7.1.2 Buyer shall have delivered the funds required
hereunder, including the balance of the Purchase Price, and all of the documents
required to be executed by Buyer and shall have performed in all material
respects all of its other obligations hereunder required to be performed by the
Closing Date, and complied with all conditions, required by this Agreement to be
performed or complied with by Buyer at or prior to the Closing.
7.2 BUYER'S CONDITIONS TO CLOSING. Buyer's obligation to close the
transactions contemplated by this Agreement is conditioned on all of the
following, any or all of which may be waived by Buyer in writing, at its sole
option:
7.2.1 All representations and warranties made by Seller in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date, as if made on and as of such date, subject to any updates to
the representations made in SECTION 5.2.3 and 5.2.5 of which Seller notifies
Buyer after the Effective Date and which occur after the Effective Date;
7.2.2 Seller shall have delivered all of the documents
required to be delivered by Seller pursuant to Section 8.1.1 hereof and shall
have performed in all material respects all of its other obligations, hereunder
required to be performed by the Closing Date and complied with all conditions,
required by this Agreement to be performed or complied with by Seller at or
prior to the Closing; and
7.2.3 The Title Company shall be prepared to issue its CLTA
Owner's Policy of Title Insurance with liability in the amount of the Purchase
Price, showing title vested in Buyer and subject only to the Permitted
Exceptions (the "OWNER'S POLICY"). At its
14
option, Buyer may obtain an ALTA Owner's Policy of Title Insurance and/or
endorsements to the Owner's Policy, but the Closing shall be conditioned only on
the Title Company being prepared to issue the Owner's Policy.
7.2.4 Seller shall have obtained and delivered to Buyer an
Estoppel Certificate from (A) each of the following tenants at the Property
(each, a "MAJOR TENANT"): Bed Bath & Beyond; 24 Hour Fitness; Marin Brewing;
▇▇▇▇▇▇'▇; AAA; Yoga Studio; ▇▇▇▇▇▇ ▇▇▇▇▇; Determined Productions; ▇▇▇▇▇ Clinic
and Fidelity, and (B) Tenants (including Major Tenants) occupying, in the
aggregate, eighty percent (80%) of the total square footage occupied by all
Tenants at the Property. Each Estoppel Certificate shall be substantially in the
form of EXHIBIT H attached hereto (the "APPROVED ESTOPPEL FORM"). Buyer shall
have the right to object, in its reasonable discretion, to any material
deviations from the Approved Estoppel Form contained in any Estoppel Certificate
by delivering written notice to Seller setting forth with specificity each of
Buyer's objections to such Estoppel Certificate ("BUYER'S ESTOPPEL OBJECTIONS").
If Buyer shall not have delivered such notice within two (2) business days of
Buyer's receipt of any executed or draft Estoppel Certificate, Buyer shall be
deemed to have approved such Estoppel Certificate. Seller shall have the right
to re-submit to Buyer revised copies of any Estoppel Certificate to which Buyer
shall have objected. Any Estoppel Certificate objected to by Buyer in accordance
with this SECTION 7.2.4 shall not be counted toward the estoppel threshold set
forth in the first sentence of this SECTION 7.2.4 until such time, if any, as
such Estoppel Certificate shall have been (x) revised to contain no material
deviations from the Approved Estoppel form, or (y) been approved or deemed
approved by Buyer in accordance with this SECTION 7.2.4.
ARTICLE 8. CLOSING
8.1 DEPOSITS INTO ESCROW.
8.1.1 BY SELLER. At least one (1) business day prior to the
Closing Date, Seller shall deposit into Escrow:
(a) A deed in the form of EXHIBIT J with respect to
the Project, in recordable form (the "GRANT DEED");
(b) Two (2) original counterparts of a ▇▇▇▇ of Sale
in the form of EXHIBIT K, duly executed by Seller, with respect to the Tangible
Personal Property, if any (the "▇▇▇▇ OF SALE");
(c) Two (2) original counterparts of an Assignment
and Assumption Agreement in the form of EXHIBIT L attached hereto, duly executed
by Seller, with respect to the Leases and the Service Contracts (other than any
Seller Contracts) (the "ASSIGNMENT AND ASSUMPTION AGREEMENT");
(d) Two (2) original counterparts of a General
Assignment in the form of EXHIBIT M, duly executed by Seller, with respect to
any warranties, guaranties and indemnities relating to the Property (the
"GENERAL ASSIGNMENT");
15
(e) An affidavit or qualifying statement which
satisfies the requirements of Section 1445 of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder (the "NON-FOREIGN Affidavit");
(f) A "Withholding Exemption Certificate, Form
593-W," pursuant to
California Revenue and Taxation Code Sections 18805 and
26131 or its equivalent stating either the amount of withholding required from
Seller's proceeds or that Seller is exempt from such withholding requirement
(the "WITHHOLDING EXEMPTION Certificate"); and
(g) An Owner's Statement in the form of Exhibit N
and such documents of Seller which authorize the sale of the Property to Buyer
as are reasonably required by the Title Company.
8.1.2 BY BUYER. At least one (1) business day prior to the
Closing Date, Buyer shall deposit into Escrow:
(a) The balance of the Purchase Price as and when
required by SECTION 2.2.2;
(b) Two (2) original counterparts of the ▇▇▇▇ of
Sale duly executed by Buyer;
(c) Two (2) original counterparts of the Assignment
and Assumption Agreement duly executed by Buyer;
(d) Two (2) original counterparts of the General
Assignment duly executed by Buyer; and
(e) Such documents as are necessary to fully
authorize the purchase of the Property by Buyer as are reasonably required by
the Title Company.
8.1.3 OTHER DOCUMENTS. Seller and Buyer shall each deposit
such other instruments and funds as are reasonably required by Escrow Holder or
otherwise required to close Escrow and consummate the sale of the Property in
accordance with the terms of this Agreement.
8.2 CLOSING COSTS.
8.2.1 SELLER'S COSTS. Seller shall bear, and Escrow Holder
shall deduct from sums otherwise payable to Seller hereunder, (a) all sales and
use taxes, if any, which Seller advises Escrow Holder are required in connection
with the transfer of the Property to Buyer, (b) any county documentary transfer
taxes and any local documentary transfer taxes payable in connection with the
transfer of the Property to Buyer, (c) the cost of the CLTA portion of the
premium for the Owner's Policy obtained by Buyer, and (d) any additional costs
and charges customarily charged to sellers in accordance with common escrow
practices in the jurisdiction in which the Project is located.
16
8.2.2 BUYER'S COSTS. Buyer shall deposit with Escrow Holder
for disbursement by Escrow Holder (a) Escrow Holder's fee and the recording fees
required in connection with the transfer of the Property to Buyer, (b) the cost
of the ALTA portion of the premium for the Owner's Policy obtained by Buyer, if
any, and the costs associated with any endorsements to the Owner's Policy and
all other title charges, (c) the costs of any due diligence investigation
conducted by or for the benefit of Buyer, including any engineering, structural
or environmental reports obtained by or on behalf of Buyer pursuant to this
Agreement, and (d) any additional charges customarily charged to buyers in
accordance with common escrow practices in the jurisdiction in which the Project
is located.
8.3 PRORATIONS. The following shall be prorated and adjusted
between Seller and Buyer as of the Closing Date, except as otherwise specified.
8.3.1 TAXES AND ASSESSMENTS. All real estate, personal
property and ad valorem taxes, assessments and bonds payable with respect to the
Property shall be prorated between Seller and Buyer as of the Closing Date for
the year in which the Closing is held on the basis of the statements for such
amounts for such year. If statements for the current year are not available as
of the Closing Date, the proration between Seller and Buyer shall be made on the
basis of the amounts due for the immediately prior year and shall be subject to
adjustment in cash after the Closing outside of escrow within sixty (60) days
after the bills for the applicable period are received. If any tax assessment
for the current or prior year is under protest, the closing tax proration shall
be re-prorated between Buyer and Seller at such time as there is a final
determination on such protest.
8.3.2 INCOME AND EXPENSES. Income from the Property other
than Rents (as defined below), and ordinary operating expenses incurred by
Seller with respect to the Property, shall be prorated between Seller and Buyer
as of the Closing Date. Seller shall be entitled to such income and responsible
for such expenses through the day prior to the Closing Date and Buyer entitled
to such income and responsible for such expenses for the Closing Date and
thereafter. Such expenses include, without limitation, utility charges, the cost
of Service Contracts assigned at Closing to Buyer, and sewer, janitorial,
cleaning and maintenance costs. Any income or expense which cannot be
ascertained with certainty as of the Closing Date shall be prorated on the basis
of the parties' reasonable estimates of such amounts and shall be the subject of
a final proration as soon thereafter as the precise amounts can be ascertained,
but in no event later than sixty (60) days after the Closing. Seller and Buyer
shall each cooperate with the other diligently and promptly to correct any
errors in computations or estimates under this SECTION 8.3.2 and shall promptly
pay to the party entitled thereto any refund, credit or other payment necessary
to comply with this SECTION 8.3.2 on demand therefor.
8.3.3 RENTS. Rents under the Leases, including fixed rent,
additional rent and operating expense pass-throughs (collectively, "RENTS"),
shall be addressed in the manner set forth in this subsection. All prepaid Rents
for any period subsequent to the Closing Date shall be credited to Buyer at
Closing. All collected Rents for the month in which the Closing occurs shall be
prorated as of the Closing Date. All Rents which are due but uncollected as of
the Closing Date (the "DELINQUENT RENTS") shall not be prorated at Closing, but
shall be paid to the party entitled to receive such Delinquent Rents upon
receipt of same by either Seller or Buyer after Closing. Buyer agrees to use
good faith and commercially reasonable efforts to
17
collect Delinquent Rents from each tenant remaining in possession of its space
under a Lease. Any and all amounts received by Buyer after the Closing Date from
any party owing Delinquent Rents shall be paid and applied as follows: first; to
Buyer's reasonable collection costs (including reasonable attorneys' fees)
incurred (after the Closing Date only); second, to Buyer for Rents due for the
then current month; third, to Buyer for due but unpaid Rents accruing after the
Closing Date, to be applied in the inverse of the order incurred (i.e., the most
recently incurred Rents paid first); fourth, to Delinquent Rents for the month
in which the Closing occurs (which sums shall, upon such collection, be prorated
between Seller and Buyer as though collected prior to Closing); and finally, to
Seller for Delinquent Rents for the period prior to the month of Closing. The
parties agree that they shall provide a final accounting and reconciliation of
all Delinquent Rents within 180 days after Closing. Buyer shall not have an
exclusive right to collect any sums due Seller from tenants under the Leases and
Seller hereby retains the right to pursue any tenant under the Leases for any
sums due Seller for periods attributable to Seller's ownership of the Property;
provided, however, Seller (i) shall be required to notify Buyer in writing of
Seller's intention to commence or pursue any legal proceedings, and (ii) shall
not be permitted to commence or pursue any legal proceedings against any tenant
at the Property seeking eviction of such tenant or the termination of the
underlying Lease.
8.3.4 SECURITY DEPOSITS. Buyer shall receive a credit for
all security deposits reflected as owing in the Leases. However, if any tenant
security deposit is in the form of a letter of credit, promissory note or
similar instrument, Seller shall use its best efforts to cause such letter of
credit, promissory note or other instrument to be assigned and transferred to
Buyer no later than sixty (60) days after the Closing, and there shall be no
credit against the Purchase Price at Closing with respect to any such tenant
security deposit.
8.3.5 SELLER'S INSURANCE. Seller may cancel its existing
polices of insurance relating to the Property as of the Closing Date, and Seller
shall be entitled to any refund of premiums prepaid thereon.
8.3.6 PRORATIONS STATEMENT. Seller and Buyer shall meet no
later than ten (10) days before the Closing Date to prepare a statement
containing all of the prorations of income and expenses required hereunder, and
shall prepare and deliver a final statement to Escrow Holder no later than two
(2) business days before the Closing. Each of Buyer and Seller shall act
reasonably and in good faith in preparing such statement, and Seller shall
provide the backup for the items in such statement as shall be reasonably
requested by Buyer.
8.3.7 SURVIVAL. The provisions of this SECTION 8.3 shall
survive the Closing.
8.4 CLOSING OF ESCROW.
8.4.1 CLOSING. The close of escrow for the transaction
contemplated hereunder (the "CLOSING") shall take place on the Closing Date (as
defined on EXHIBIT C). In the event that the transaction contemplated by this
Agreement fails to close by the Closing Date (as may be extended pursuant to the
terms of this Agreement), this Agreement, and all of Buyer's rights with respect
to the acquisition of the Property, shall terminate, the parties shall have the
18
rights and obligations as provided in ARTICLE 9, and Escrow Holder shall return
to the parties, respectively, the documents they have deposited into Escrow.
8.4.2 CLOSING AGENT. Escrow Holder shall comply with all
applicable federal, state and local reporting and withholding requirements
relating to the close of the transactions contemplated herein. Without limiting
the foregoing, pursuant to Section 6045 of the Internal Revenue Code, Escrow
Holder shall be designated the "closing agent" hereunder and shall be solely
responsible for complying with the Tax Reform Act of 1986 with regard to
reporting all settlement information to the Internal Revenue Service.
8.4.3 PROCEDURE. To Close the Escrow, Escrow Holder shall:
(a) Cause the Grant Deed to be recorded and
thereafter mailed to Buyer, and deliver the Owner's Policy, Non-Foreign
Affidavit and a counterpart of each of the ▇▇▇▇ of Sale, General Assignment and
Assignment and Assumption Agreement executed by Seller to Buyer; and
(b) Deliver to Seller a counterpart of the ▇▇▇▇ of
Sale, General Assignment, and Assignment and Assumption Agreement executed by
Buyer, and, by wire transfer of federal funds deliver to Seller the Purchase
Price, plus or minus any net debit or credit to Seller by reason of the
prorations and allocations of closing costs provided for in this Agreement.
8.5 POSSESSION. Subject to all Leases and the Permitted
Exceptions, possession of the Property (including, without limitation, all keys
to the Property in Seller's possession) shall be delivered to Buyer upon
Closing.
ARTICLE 9. BREACH OF AGREEMENT.
9.1 SELLER'S TERMINATION. Seller shall have the right to
terminate this Agreement and the Escrow upon notice to Buyer if any of the
following occurs: (1) Buyer commits a material breach of this Agreement; or (2)
any condition precedent to Seller's obligation to close contained in SECTION 7.1
has not been satisfied or waived by Seller in writing by the Closing Date.
9.2 SELLER'S REMEDIES; LIQUIDATED DAMAGES. BUYER AND SELLER AGREE
THAT IN THE EVENT THIS TRANSACTION FAILS TO CLOSE BY REASON OF BUYER'S DEFAULT
OR THE FAILURE OF A CONDITION PRECEDENT TO SELLER'S OBLIGATION TO CLOSE SET
FORTH IN SECTION 7.2, THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND
IMPRACTICABLE TO ASCERTAIN. IN SUCH EVENT, THE PARTIES AGREE THAT THE DEPOSIT IS
A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH
DEFAULT. SAID AMOUNT SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES TO SELLER
FOR SUCH DEFAULT OF THIS AGREEMENT BY BUYER AND SELLER'S SOLE REMEDY THEREFOR.
HOWEVER, THIS SECTION SHALL NOT LIMIT SELLER'S RIGHTS TO RECEIVE REIMBURSEMENT
FOR ITS ATTORNEYS' FEES, NOR WAIVE OR AFFECT SELLER'S RIGHTS AND BUYER'S
INDEMNITY OBLIGATIONS UNDER OTHER SECTIONS OF THIS AGREEMENT (WHICH ARE NOT
LIMITED BY
19
THIS SECTION 9.2.) THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER.
Initials of Buyer: Initials of Seller:
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------- ---------------------
-------------------- ---------------------
9.3 BUYER'S REMEDIES. In the event the purchase and sale of the
Property is not consummated because of a default by Seller, and provided that
Buyer is not in default hereunder, Buyer's sole and exclusive remedy shall be
either (a) to terminate this Agreement and receive an immediate return of the
Deposit, or (b) to seek specific performance of Seller's obligation to sell the
Property to Buyer. These remedies are mutually exclusive and Buyer must elect,
by notice to Seller and Escrow Holder, which of these remedies it wishes to
pursue no later than thirty (30) days after the date scheduled for the Closing
Date. If Buyer elects to terminate this Agreement pursuant to clause (a), Buyer
shall be entitled to seek damages caused by Seller's breach, which shall (i) be
limited to the actual, out-of-pocket third party costs incurred by Buyer in
connection with the transaction contemplated hereby, and (ii) in no event exceed
Seventy Five Thousand Dollars ($75,000). Seller shall have no liability to Buyer
under any circumstances for any consequential or punitive damages. If any
condition precedent to Buyer's obligation to close contained in SECTION 7.2 has
not been satisfied or waived by Buyer in writing by the Closing Date, Buyer's
sole and exclusive remedy shall be to terminate this Agreement and receive an
immediate return of the Deposit. Notwithstanding anything to the contrary
herein, Buyer shall not seek a personal judgment against Seller nor its members,
managers, employees or agents of Seller, nor the shareholders, officers,
directors, employees or agents of any of them nor the Property for any Claims
under or related to this Agreement or the Property. Buyer shall look solely to
the Seller's interest in the Property for the payment of any Claim or
performance of any obligation by Seller hereunder. Under no circumstances shall
Buyer have the right, and Buyer hereby waives any right it may have, to record a
lis pendens or notice of any lawsuit against the Project or any portion thereof.
9.4 SELLER'S MAXIMUM AGGREGATE LIABILITY; CLAIMS PERIOD.
Notwithstanding any provision to the contrary contained in this Agreement or any
documents executed by Seller pursuant hereto or in connection herewith, the
maximum aggregate liability of Seller under this Agreement and any and all
documents executed pursuant hereto or in connection herewith (including, without
limitation, the breach of any representations and warranties of Seller contained
in such documents) for which a claim is timely made by Buyer shall not exceed an
amount equal to one percent (1%) of the Purchase Price. Any action, suit or
proceeding brought by Buyer against Seller arising from or related to this
Agreement must be commenced and served, if at all, on or before the date which
is six (6) months after the date scheduled for the Closing Date. This Section
9.4 shall survive the Closing or any termination of this Agreement.
20
ARTICLE 10. GENERAL PROVISIONS
10.1 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, taken together,
shall constitute one and the same instrument.
10.2 ENTIRE AGREEMENT. This Agreement contains the entire,
integrated agreement between the parties respecting the subject matter of this
Agreement and supersedes all prior and contemporaneous understandings and
agreements, whether oral or in writing, between the parties respecting the
subject matter of this Agreement. There are no representations, agreements,
arrangements or understandings, oral or in writing, between the parties to this
Agreement relating to the subject matter of this Agreement which are not fully
expressed in this Agreement. The terms of this Agreement are intended by the
parties as a final expression of their agreement with respect to those terms and
they may not be contradicted by evidence of any prior or contemporaneous
agreement.
10.3 COUNSEL; CONSTRUCTION. Each party has received independent
legal advice from its attorneys with respect to the advisability of executing
this Agreement and the meaning of the provisions hereof. The provisions of this
Agreement shall be construed as to their fair meaning, and not for or against
any party based upon any attribution to such party as the source of the language
in question. Headings used in this Agreement are for convenience of reference
only and shall not be used in construing this Agreement.
10.4 CHOICE OF LAW. This Agreement and the rights and obligations
of the parties hereto shall be governed by and construed and enforced in
accordance with the laws of the State of California, exclusive of the conflict
of laws principles of such state. The parties consent to jurisdiction of the
state courts located in Marin County, California in the event of any litigation
arising out of this Agreement.
10.5 SEVERABILITY. If any term, covenant, condition or provision
of this Agreement, or the application thereof to any person or circumstance, to
any extent shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Agreement, or the application thereof to any person or circumstance,
shall remain in full force and effect.
10.6 WAIVER OF COVENANTS, CONDITIONS OR REMEDIES. Either Buyer or
Seller may waive any breach of the terms and conditions hereof by the other
party only by a written statement to that effect signed by the waiving parties,
such waiver shall not constitute a continuing waiver of similar or other
breaches of the terms and conditions hereof. All remedies, rights, undertaking,
obligations and agreements contained herein shall be cumulative and not mutually
exclusive.
10.7 BUSINESS DAY. As used herein, "business day" means any
calendar day except a Saturday, Sunday or federal holiday and those days on
which financial institutions in the City of San Francisco, State of California
are closed.
10.8 EXHIBITS AND SCHEDULES. All exhibits and schedules listed
as such in the Table of Contents are attached hereto and are incorporated by
reference into this Agreement.
21
10.9 AMENDMENT. This Agreement may be amended solely by the
written agreement of Buyer and Seller.
10.10 RELATIONSHIP OF PARTIES. The parties agree that their
relationship is that of seller and buyer, and that nothing contained herein
shall make either party the agent or legal representative of the other for any
purpose whatsoever, nor shall this Agreement be deemed to create any form of
business organization between the parties hereto, nor is either party granted
any right or authority to assume or create any obligation or responsibility on
behalf of the other party, nor shall either party in any way be liable for any
debt of the other.
10.11 NO THIRD-PARTY BENEFIT. This Agreement is intended to benefit
only the parties hereto and no other person or entity has or shall acquire any
rights hereunder.
10.12 TIME OF THE ESSENCE. Time shall be of the essence as to all
dates and times of performance, whether contained herein or contained in any
escrow instructions to be executed pursuant to this Agreement.
10.13 FURTHER ACTS. Each party agrees without further consideration
to perform any further acts and to execute, acknowledge and deliver any
documents which may be reasonably necessary to carry out the provisions of this
Agreement.
10.14 NO RECORDING. Buyer shall not record this Agreement, any
memorandum of this Agreement, any assignment of this Agreement or any other
document which would cause a cloud on the title to the Property.
10.15 ASSIGNMENT. Buyer shall not assign Buyer's rights or delegate
its obligations hereunder without the prior written consent of Seller in each
instance, which consent Seller may withhold in its sole and absolute discretion.
Notwithstanding the foregoing, Buyer may assign its interest herein to a limited
partnership, limited liability company or corporation that is solely or jointly
controlled by Buyer and in which Buyer possesses an ownership interest of at
least fifty percent (50%). Such assignment shall be effective upon written
notice to Seller and shall not relieve the Buyer of its obligations hereunder.
Any attempted assignment or delegation in violation of this Section 10.15
without the prior written consent of Seller shall be void, and the purported
assignee shall not have any rights hereunder. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the permitted
successors and assigns of the parties to this Agreement.
22
10.16 ATTORNEYS' FEES. If any action is brought by either party
against the other party, relating to or arising out of this Agreement, the
transaction described herein or the enforcement hereof, the prevailing party
shall be entitled to recover from the other party reasonable attorneys' fees,
costs and expenses incurred in connection with prosecution or defense of such
action. For purposes of this Agreement, the term "attorneys' fees" or
"attorneys' fees and costs" shall mean the fees and expenses of counsel to the
parties hereto, which may include printing, photocopying, duplicating and other
expenses, air freight charges, and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the
supervision of any attorney, and the costs and fees incurred in connection with
the enforcement, collection or appeal of any judgment obtained in any such
proceeding. The provisions of this SECTION 10.16 shall survive any termination
of this Agreement and the entry of any judgment, and shall not merge or be
deemed to have merged into any judgment.
10.17 BROKERS. Buyer and Seller each represents and warrants to the
other (a) it has not dealt with any brokers or finders in connection with the
purchase and sale of the Property other than Secured Capital Corp. ("BROKER"),
and (b) insofar as such party knows, no broker or other person is entitled to
any commission or finder's fee in connection with the purchase and sale of the
Property, other than Broker, who will be paid a commission by Seller upon the
Closing pursuant to a separate written agreement between Seller and Broker.
Seller and Buyer each agrees to indemnify and hold harmless the other against
any Claim incurred by reason of any brokerage fee, commission or finder's fee
which is payable or alleged to be payable to any broker or finder because of any
agreement, act, omission or statement of the indemnifying party. The provisions
of this SECTION 10..17 shall survive the Closing or any termination of this
Agreement.
10.18 NOTICES. Any notice or election required or permitted to be
given by any party hereto upon any other party shall be deemed given in
accordance with the provisions of this Agreement when addressed to Seller or
Buyer, as the case may be, at the respective address set forth below. Notices
shall be transmitted, or delivered as follows: (1) personal delivery, (2)
express or courier service, or (3) facsimile, provided that an original copy is
transmitted by the United States Postal Service or express or courier service.
Notices shall be deemed to be delivered the earlier of (a) the date received, or
(b) two (2) business days after deposit with an express or courier service.
Seller's Address for Notice:
SIMEON Commercial Properties
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Rockwood Capital Corporation
Two ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
23
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer's Address for Notice:
Inland Real Estate Acquisitions, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Inland Real Estate Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
Any party hereto may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties hereunder, in the
manner above specified.
10.19 MUTUAL WAIVERS OF JURY TRIAL AND CERTAIN DAMAGES. BUYER AND
SELLER EACH HEREBY EXPRESSLY, IRREVOCABLY, FULLY AND FOREVER RELEASES, WAIVES
AND RELINQUISHES ANY AND ALL RIGHT TO TRIAL BY JURY AND ALL RIGHT TO RECEIVE
PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES FROM THE OTHER (OR ANY PAST OR
FUTURE BOARD MEMBER, TRUSTEE, DIRECTOR, OFFICER, EMPLOYEE, MEMBER, PARTNER,
AGENT, REPRESENTATIVE OR ADVISOR OF THE OTHER) IN ANY CLAIM, DEMAND, ACTION,
SUIT, PROCEEDING OR CAUSE OF ACTION IN WHICH BUYER OR SELLER IS A PARTY, WHICH
IN ANY WAY (DIRECTLY OR INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO
ANY OF THE FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS: THIS AGREEMENT; ANY
PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT OR ACTIVITY WITH RESPECT TO THIS
AGREEMENT; ANY TRANSACTION, EVENT OR OCCURRENCE CONTEMPLATED BY THIS AGREEMENT;
THE PERFORMANCE OF ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS
AGREEMENT; OR THE ENFORCEMENT OF THIS AGREEMENT. BUYER AND SELLER AGREE THAT
THIS
24
AGREEMENT CONSTITUTES WRITTEN CONSENT THAT TRIAL BY JURY SHALL BE WAIVED IN ANY
SUCH CLAIM, DEMAND, ACTION, SUIT, PROCEEDING OR OTHER CAUSE OF ACTION AND AGREE
THAT BUYER AND SELLER EACH HAS THE RIGHT AT ANY TIME TO FILE THIS AGREEMENT WITH
THE CLERK OR JUDGE OF ANY COURT IN WHICH ANY SUCH CLAIM, DEMAND, ACTION, SUIT,
PROCEEDING OR OTHER CAUSE OF ACTION MAY BE PENDING AS STATUTORY WRITTEN CONSENT
TO WAIVER OF TRIAL BY JURY.
10.20 Notwithstanding anything to the contrary contained in this
Agreement, in accordance with Treasury Regulations Section 1.6011-4(b)(3)(iii),
the parties hereto (and each employee, representative, or other agent of any
party hereto may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided to any party hereto relating to such tax treatment
and tax structure. However, any information relating to tax treatment or tax
structure shall remain subject to any confidentiality provisions of this
Agreement (and the preceding sentence shall not apply) to the extent, but only
to the extent, reasonably necessary to enable the parties hereto to comply with
applicable securities laws. For purposes of this Section 10.20, "tax structure"
means any fact that may be relevant to understanding the federal income tax
treatment of the transaction.
10.21 COOPERATION WITH AUDIT. Seller acknowledges that Buyer may be
required to make certain filings with the Securities and Exchange Commission
(the "SEC FILINGS") related to the most recent pre-acquisition fiscal year (the
"AUDITED YEAR") for the Property. Seller agrees to deliver to Buyer such
information and execute such documents or instruments as may be necessary or
appropriate to complete such SEC Filings including, without limitation, the SEC
Audit Items (defined below) in Seller's possession or control, provided that (i)
Seller's cooperation in such regard shall be at no additional cost, expense or
liability whatsoever to Seller, (ii) no additional delays in the scheduled
Closing Date are caused by such exchange, and (iii) Seller shall not be required
to deliver any information which Seller deems to be proprietary or confidential.
As used herein, "SEC AUDIT ITEMS" means, collectively: (1) Seller's bank
statements for the Audited year; (2) Seller's rent roll as of the end of the
Audited Year; (3) Seller's operating statements for the Audited Year; (4)
Seller's general ledger for the Audited Year; (5) Seller's Cash receipts
schedule for each month in the Audited Year; (6) invoices for expenses and
capital improvements with respect to the Property in the Audited Year; (7)
Copies of Seller's insurance documentation with respect to the Property for the
Audited Year; and (8) Copies of Seller's accounts receivable aging as of the
end of the Audited Year and an explanation for all accounts over 30 days past
due as of the end of the Audited Year. This SECTION 10.21 shall survive the
Closing.
(SIGNATURE PAGE FOLLOWS)
25
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the Effective Date.
SELLER:
LARKSPUR LANDING, LLC,
a Delaware limited liability company
By: SimRock Properties, LLC,
a Delaware limited liability company
Its: Manager
By: SimLark, L.P.,
a California limited partnership
Its: Managing Member
By: SIMEON Commercial Properties,
a California corporation
Its: General Partner
By: /s/ Piersin ▇. ▇▇▇▇▇▇
---------------------------
Name: Piersin ▇. ▇▇▇▇▇▇
-------------------------
Title: SR. V.P.
-----------------------
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
----------------------------------
(AGREEMENT OF ESCROW HOLDER FOLLOWS)
26
ESCROW HOLDER
The undersigned hereby agrees to act as the Escrow Holder pursuant to
the foregoing Agreement.
CHICAGO TITLE INSURANCE
COMPANY
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Assistant Vice President/Senior
---------------------------------
Escrow Officer
---------------------------------
Dated:
---------------------------------
----------------------------------------
Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
-----------------------------
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
-----------------------------
EXHIBITS
EXHIBIT A Property Description
EXHIBIT B Intentionally Deleted
EXHIBIT C Due Diligence Completion and Decision Dates
EXHIBIT D List of Due Diligence Materials
EXHIBIT E Schedule of Leases
EXHIBIT F List of Service Contracts
EXHIBIT G Intentionally Deleted
EXHIBIT H Form of Tenant Estoppel Certificates
EXHIBIT I Intentionally Deleted
EXHIBIT J Form of Deed
EXHIBIT K Form of ▇▇▇▇ of Sale
EXHIBIT L Form of Assignment and Assumption Agreement
EXHIBIT M Form of General Assignment
EXHIBIT N Form of Owner's Statement
EXHIBIT O E&O Lease Terms
EXHIBIT A
PROPERTY DESCRIPTION
ALL THAT CERTAIN real property situate in the City of Larkspur, County of Marin,
State of California, described as follows:
Lots 335 through 338, inclusive, as shown upon that certain Map entitled "Map of
Larkspur Landing", filed for record August 12, 1977 in Volume 17 of Maps, at
Page 5, Marin County Records.
EXHIBIT B
INTENTIONALLY DELETED
EXHIBIT C
DUE DILIGENCE COMPLETION AND DECISION DATES
Effective Date December 12, 2003
Initial Deposit non-refundable December 16, 2003
Natural Hazard Report to be delivered to Buyer December 21, 2003
Title Objections due December 16, 2003
Seller's Title Notice due December 19, 2003
Contingency Date December 22, 2003
Additional Deposit Non-Refundable December 22, 2003
Closing deliveries due January 12, 2004
Closing Date January 13, 2004, or such
earlier or later date as
Buyer and Seller may
mutually agree.
EXHIBIT D
LIST OF DUE DILIGENCE MATERIALS
INITIAL PACKAGE
Rent Roll Rent Roll as of 9/17/03
Lease Documents, Addendums and Agreements See Attached Worksheet Tab for Leases
Tenant Expense Reimbursement Schedules Operating Expenses - 2003 Estimated
Recovery Letters to Tenants 2002 CAM Reconciliations Letters and 2003 CAM Estimates Letters
Commencement Letters Commencement Date Memorandums - for California State Automobile
Inter-Insurance Bureau, Bay Area Wireless Resource, Inc., Bed, Bath &
Beyond, Inc., Determined Productions, Inc., Fidelity Brokerage Services,
LLC, ▇▇▇▇▇▇ & Associates, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇
Inciard, Red Hill Studios, Inc., Weight Watchers North America, Inc., and
The Yoga Studio, LLC
Rent Increase Letters (CPI) CPI Increase Letters for tenants who have CPI increase clauses in their leases
For Year To Date August 2003, and for Years 2002, 2001, and 2000
Property Tax Bills Real Estate Property Tax History and Bills from 1993/1994 through 2003/2004 for
Parcel No. ▇▇▇-▇▇▇-▇▇
Operating Statements (last 3 years), YTD Result Operating Statements for Year To Date 10/2003 and Year End 12/31/02 and Year End
12/31/01
Accounts Payable/Receivable Accounts Receivable Prepaids as of 9/30/03
Historical Capital Expenditures Capital Budgets since purchase 4/99 to 9/03
Utility Bills - Monthly YTD and prior 12 months Marin Sanitary Service Invoices from 8/02 through 9/03
Marin Municipal Water District bills from 8/02 through 8/03
Pacific Gas and Electric bills from 9/26/02 through 9/25/03
Vendor List and Service Contracts See attached listing
LEGAL
Legal description and ALTA Survey A.L.T.A. Survey prepared by ▇▇▇▇ & ▇▇▇▇▇▇, dated and last revised 3/24/99
Licenses and Permits Permit to Operate an Elevator dated 1/27/03 and will expire on 1/27/04
Proof of Insurance Certificates of Liability Insurance - liability and excess coverage -
coverage period from 9/1/03 to 9/1/04 - insurers are Firemans Fund
Insurance Co. and American Guarantee & Liability
Evidence of Property Insurance - All Risk Property Insurance - coverage
period from 9/1/03 to 9/1/04 - insurer is Firemans Fund
Zoning Ordinance No. 912 - City of Larkspur - amending uses in the Larkspur Landing
Shopping Center
Ordinance #688 dated 11/3/82, #807 dated 9/5/90, #858 dated 10/12/93, #872
dated 6/13/95, and #888 dated 11/18/97
Site Plan/Survey (Blueprint or 8.5x11) Site Plan
Personal Property Office Furniture and Equipment Inventory, Outdoor Furniture and Storage
Areas Inventory, Storage Area Inventory, Personal Property Belonging To
Vendors, Terracotta Pot Inventory
LEASES
24 HOUR FITNESS Lease 8/1/89
First Amendment 5/8/90
Letter Agreement Amending Lease 3/18/91
Second Amendment 11/22/93
Third Amendment 1/4/96
Letter 9/8/97
Fourth Amendment May-00
Revocable License Agreement 11/28/01
ALL CALIFORNIA MORTGAGE, INC Lease 3/7/94
First Amendment 11/1/01
Second Amendment 9/27/02
Commencement Letter 9/27/02
ALLSTATE INSURANCE (▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) Lease 10/13/98
First Amendment 12/1/01
2
AMERICAN NAILS (▇▇▇▇ ▇. AND Lease 8/31/96
▇▇▇▇-▇▇▇ ▇▇▇▇▇▇
First Amendment 9/18/96
Second Amendment 7/31/03
▇▇▇▇▇ CLINIC / SOLD TO MATRIX Lease 9/30/94
REHABILITATION, INC.
Certificate of Tenant and Term 6/5/95
Agreement
First Amendment 8/1/95
Assignment and Assumption of 5/1/97
Lease and Lessor's Consent
Global Settlement Agreement and 9/4/97
Mutual Release of All Claims
Purchase and Sale Agreement 3/5/98
Assignment of Lease and Consent 5/1/97
of Landlord
AVANTI FINE ARTS (▇▇▇▇ ▇▇▇▇▇▇▇▇▇) Lease 8/7/02
First Amendment 11/1/02
BAY WIRELESS RESOURCE Lease 4/14/03
BED BATH & Beyond Lease June-02
Memorandum of Lease June-02
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, D.D.S. Lease 4/15/88
First Amendment 3/25/93
Second Amendment 4/27/98
Third Amendment 8/5/03
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ INCIARD Lease 5/6/03
Commencement Date Memorandum 5/28/03
CALIFORNIA STATE AUTOMOBILE Lease 3/10/03
INTER-INSURANCE BUREAU
▇▇▇▇▇▇ ALLEY Lease Jun-01
DETERMINED PRODUCTIONS, INC. Lease 12/21/00
FIDELITY BROKERAGE SERVICES, LLC Lease 2/1/01
3
GENERAL NUTRITION CENTER Lease 10/5/93
Certificate of Tenant and Term 1/13/94
Agreement
Letter 7/27/98
GOLDEN GATE PRINTING (VESTA Lease 2/27/96
INDUSTRIES, INC.)
First Amendment 7/6/98
Second Amendment 1/15/03
Third Amendment 9/3/03
J.R. MUGGS Lease 3/18/87
Certificate of Tenant and Term 6/11/87
Agreement
First Amendment 2/24/92
Second Amendment 6/10/97
Third Amendment 3/1/02
Letter 6/30/03
▇▇▇▇▇▇ & ASSOCIATES Lease 5/22/02
LARK SHOES AND REPAIR (▇▇▇▇▇ AND Lease 10/26/78
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇)
First Amendment 9/1/80
Extension of Lease 10/31/88
Lease 3/16/94
Lease 12/14/01
LARKSPUR LANDING OPTOMETRY Lease 1/31/97
First Amendment 1/6/03
LARKSPUR LANDING VETERINARY HOSPITAL Lease 8/28/78
First Amendment 9/1/80
Second Amendment 7/31/89
Letter Agreement 8/28/78
Third Amendment 6/15/93
Assignment of Lease 9/10/96
First Amendment to Assignment of 11/15/96
Lease
MARIN BREWING COMPANY Lease 7/1/88
First Amendment 10/6/88
Certificate of Tenant and Term 4/3/89
Agreement
Second Amendment 7/8/91
4
Third Amendment 7/8/91
Certificate of Tenant and Term 10/18/91
Agreement
Fourth Amendment 2/16/94
Lease Apr-03
Letter 4/16/01
First Amendment 10/1/03
MARIN VISITORS BUREAU Lease 6/4/98
First Amendment
Second Amendment 8/30/02
▇▇▇▇▇▇▇ CLEANERS Lease 9/15/90
First Amendment 12/31/90
Letter Agreement 9/15/90
Certificate of Tenant and Term 10/21/91
Agreement
Second Amendment 3/13/01
▇▇▇▇▇▇ RESTAURANT (▇▇▇▇▇▇▇ ▇▇▇▇▇▇) Lease (expired) 3/17/78
Certificate of Lease (expired) 7/16/79
(expired) 9/1/80
Extension of Lease (expired) 11/20/89
Extension of Lease (expired) 7/27/94
Amendment (expired) 7/29/97
Lease Mar-01
First Amendment 5/24/02
▇▇▇▇▇▇ ▇▇▇▇▇ JEWELERS Lease 4/1/02
First Amendment 2/1/03
▇▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, INC. Lease 12/6/94
First Amendment 9/15/95
Certificate of Tenant and Term 9/18/95
Agreement
5
Second Amendment 1/15/99
Settlement Agreement 1/15/99
THE RAGGED SAILOR GALLERY AND FRANERY Lease 8/31/78
(▇▇▇▇ ▇▇▇▇▇)
Certificate of Lessee 8/2/79
First Amendment 9/1/80
Second Amendment 6/8/81
Third Amendment 11/2/81
Extension of Lease 7/7/86
Fifth Amendment 8/1/88
Letter Agreement 8/31/78
Sixth Amendment 1/28/92
Seventh Amendment 2/1/94
Eight Amendment 5/2/95
Ninth Amendment 1/15/96
Tenth Amendment 1/31/97
Lease 3/2/01
RED FILL STUDIOS, INC. Lease 6/3/02
ROADRUNNER BURRITO Lease 12/15/93
First Amendment 1/31/97
Second Amendment undated
Third Amendment 7/1/99
Letter 6/29/01
Letter 6/28/02
Letter 6/25/03
SUSHI KO (▇▇▇▇▇ ▇. ▇▇▇▇▇▇) Lease 4/1/81
First Amendment 10/19/81
Extension of Lease 6/22/84
Extension of Lease 8/15/89
Second Amendment 8/31/99
TOGO'S (▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇▇) Lease 3/15/98
6
TRAVELEX AMERICA (ATM) Lease 7/24/97
Assignment of Lease undated
WEIGHT WATCHERS NORTH AMERICA, INC. Lease 3/1/88
First Amendment 5/13/91
Lease Assignment and Assumption 9/27/92
Second Amendment 10/1/01
Lease 11/20/02
Commencement Date Memorandum 12/1/02
YOGA STUDIO Lease 2/15/02
Commencement Date Memorandum undated
CONTRACTS
ADT Alarm and Security Systems, Inc. Fire sprinkler flow monitoring 4/1/96
Buildings 1-5
Empire Elevator Co., Inc. Elevator Maintenance & 24 hour 9/1/03
monitoring
C & C Security Patrol, Inc. Center Security 8/24/03
Diversified Fire Protection 24 hour monitoring of buildings 9/21/01
1201, 1401, 1601, 2601, & 2801
Diablo Hydrojetting Sewer line maintenance 3/16/98
Gardener's Guild, Inc. Landscaping 9/21/01
Crystal Clear Pools Service, Fountain Maintenance 3/17/02
Supplies, and Repairs
MBM Janitorial Service 1/1/98
Mainstreet Awning Maintenance Awning cleaning 9/24/99
Muzak Limited Partnership Music in Buildings 1-5 7/21/95
Republic Electric Parking Lot 2/1/03
Terminix 11/16/01
U.S. Bancorp/BLC Capital - Office Trash compactor Lease 10/6/97
Equipment Finance Services
TRAILING DOCUMENTS
DATE SENT TO
INLAND GROUP
BY SECURED
# ITEMS CAPITAL CORP COMMENT
-------------------------------------------------------------------------------------------------------------------
7
1 Environmental Assessment Report 11/10/03 Sent with Best and Final Offer Letter.
(Phase 1)
2 24 Hour Fitness - Lease (H.E.C. 11/24/03 Lease - Dated 8/1/89
Investments, Inc., dba 24 Hour
Nautilus Centers)
3 24 Hour Fitness - First Amendment 11/24/03 First Amendment - Dated 5/8/90
(H.E.C. Investments, Inc., dba 24 Hour
Nautilus Centers)
4 24 Hour Fitness - Second Amendment 11/24/03 Dated 11/22/93
(H.E.C. Investments, Inc., dba 24 Hour
Nautilus Centers)
5 24 Hour Fitness - Third Amendment 11/24/03 1/4/1996
(H.E.C. Investments, Inc., dba 24 Hour
Nautilus Centers)
6 24 Hour Fitness - Letter Agreement 11/24/03 Dated 3/4/92
(H.E.C. Investments, Inc., dba 24 Hour
Nautilus Centers)
7 24 Hour Fitness - Court Case Settlement 11/24/03 Including Letters dated 9/8/97 from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Documents (H.E.C. Investments, Inc., dba & Dito; Global Settlement Agreement and Mutual Release
24 Hour Nautilus Centers) of All Claims dated 9/4/97; Attached Exhibit A entitled
Exclusive Services and Cross-Promotion / Referral
Agreement dated 8/25/97 and Incorporated as the May
1997 Addendum to the 8/1/89 Lease; Agreement dated 8/25/97
- Supplementing the Addendum to Leases, Exclusive Services
and Cross-Promotional Referral Agreement; Request For
Dismissal - Case No. 168662 - Breach of Contract - dated
4/30/97 and filed 9/5/97 with the Marin County Court,
Superior Court Division; and Request For Dismissal - Case
No. 168662 - Breach of Lease - dated 5/5/97 and filed 9/5/97
with the Marin County Court, Superior Court Division
8 24 Hour Fitness - Fourth Amendment 11/24/03 Dated May 2000
(H.E.C. Investments, Inc., dba 24 Hour
Nautilus Centers)
9 24 Hour Fitness - Revocable License 11/24/03 Dated 1/28/01
Agreement (H.E.C. Investments, Inc.,
dba 24 Hour Nautilus Centers)
10 Determined Productions, Inc. - Lease 11/24/03 Dated 12/21/00
8
11 Travelex America - Lease For ATM 11/24/03 Dated 7/24/97
Machine
12 Travelex America - Assignment of Lease 11/24/03 Dated 7/9/01 (legibility of Consent of Landlord
For ATM Machine signed date very poor)
13 First Amendment to General Nutrition 11/25/03 Dated 11/20/03; Lease term to expire 6/30/04; Rent
Corporation lease amended
14 Simeon List of Documents Available for 11/26/03 Simeon Office - San Francisco
Review at Simeon Office
15 Tenant Contact Information 12/4/03 List for Existing Tenants
16 Starbucks Letter of Intent 12/4/03 Dated 8/12/03
17 First Amendment for lease of Larkspur 12/5/03 Dated 1/5/03; Lease term to be extended from 7/1/02
Landing Optometry (Dr. ▇▇▇▇ ▇▇▇ and to 6/30/08 with Rent Modification
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇)
18 Second Amendment to lease of ▇▇▇▇ 12/5/03 Dated 11/20/03; Substitution of premises to Suite 2201
▇▇▇▇▇▇▇▇▇ dba Avanti Fine Arts from Suites 2007 and 2013 - Modification of rent; Term
expired 10/31/02 and is now extended on a month to
month basis
19 Rent Roll As Of 11/30/03 12/5/03
20 Larkspur Landing Advertising, 12/8/03
Marketing, Promotional Expense Budget
21 Blank Standard Form Lease - Retail 12/8/03
22 Blank Standard Form Lease - Office 12/8/03
23 Certificates of Occupancy - ▇▇▇▇▇▇'▇ 12/8/03
and Fidelity
24 Evidence of Insurance - For Each 12/8/03
Tenant
25 Leasing Plan - Terranomics Leasing 12/8/03
Report As Of October 2003
26 Aged Receivables - As Of 12/8/03
November 30, 2003
27 Summary Of Recent Lease Transactions 12/8/03
- Included In Rent Roll Dated
October 2003
28 Building Plans And Warranty Binders - 12/8/03 On Site Contact Information
On Site At Larkspur Landing Property
Management Office - Contact
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at 510-839-5248 -
her E-Mail address is
9
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
29 Inventories of Larkspur Landing Blue 12/9/03 Two lists - the documents are available or review
Prints, Manuals, and Binders on-site.
TENANT FINANCIALS
TENANT SUITE NO. DOCUMENT
--------------------------------------------------------------------------------
Allstate #2403 Personal Financial Statements for
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
American Nails #2203 Form 1040 - YE 1999 and 1998 for
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ Clinic #2801 Benchmark Medical, Inc.
Consolidated Financials
Statements for 12/31/00, 12/31/01
- Benchmarks of 1/23/03 became
the owner of ▇▇▇▇▇ from ▇▇▇▇▇▇▇
Enterprises
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DDS #1201A Form 1040 - 1987 for ▇▇▇▇▇▇▇ ▇.
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Golden Gate Printing #1601 Shahrod and Mahtab Shojazadegon
Financial Statement (undated);
Vesta Industries, Inc. Balance
Sheet as of 2/29/96; Small
Business Advisory Report dated
3/13/96
Larkspur Landing Veterinary #1019 ▇▇▇▇▇▇ Press, DVM; ▇▇▇▇ Press, DVM -
Hospital See Personal Financial Statement
on last page of Business Plan
Lark Shoes and Repair #2239 Personal Financial Statement
(poor quality) dated 10/17/78 for
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Brewing Co. #1809 Confidential Private Investment
Memorandum dated 8/98
▇▇▇▇▇▇ ▇▇▇▇▇ Jewelers #2211 Joint financial Condition dated
5/23/77 for ▇▇▇▇▇▇ ▇. and
▇▇▇▇▇ ▇. ▇▇▇▇▇
10
EXHIBIT E
SCHEDULE OF LEASES
LEASE
LEGAL NAME OF TENANT TYPE OF ENTITY DATE AMENDMENTS, ETC.
-----------------------------------------------------------------------------------------------------------------------------
24 Hour Fitness, Inc. fka California corporation 8/1/89 First Amendment of Lease
H.E.C Investments, Inc. dated 5/--/1990
Certificate of Tenant and Term Agreement
dated 7/11/1990
Letter Agreement Amending Lease
dated 3/18/1991
Certificate of Tenant and Term Agreement
dated 12/1/1992
Second Amendment of Lease
dated 11/22/1993
Storage Agreement
dated 5/15/1995
Third Amendment of Lease
dated 1/4/1996
Certificate of Tenant and Term Agreement
dated 8/1/1996
Fourth Amendment to Lease
dated 5/2000.
All California Mortgage, Inc. California corporation 3/7/94 First Amendment to Shopping Center Lease
dated 11/1/2001
Second Amendment to Shopping Center Lease Agreement
dated 9/27/2002.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ dba Allstate individual 10/13/98 Letter Agreement
Insurance dated 11/4/1998
Letter Agreement
dated 12/1/1998
First Amendment to Shopping Center Lease Agreement
dated 12/1/2001.
Hai ▇▇▇ ▇▇▇ and Sau Van married couple 8/2/96 First Amendment of Shopping Center Lease
▇▇▇▇▇▇ dba American Nails dated 9/18/1996
Second Amendment to Shopping Center Lease
dated 7/31/2003.
LEASE
LEGAL NAME OF TENANT TYPE OF ENTITY DATE AMENDMENTS, ETC.
-----------------------------------------------------------------------------------------------------------------------------
Benchmark Medical Holdings, Delaware corporation 9/30/94 Certificate of Tenant and Term Agreement
Inc. dba ▇▇▇▇▇ Clinic dated 6/5/1995
First Amendment of Lease
dated 8/1/1995
Assignment and Assumption of ▇▇▇▇▇ Clinic Lease and
Lessor's Consent
dated 5/1/1997
Consent to Change Control of Tenant
dated 1/23/2003.
Travelex America, Inc. Delaware corporation 7/24/97 Assignment of Lease with Landlord's Consent
dated 3/9/2001.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ dba Avanti individual 8/7/02 First Amendment to Larkspur Landing Shopping Center
Fine Arts Retail Lease Agreement
dated 11/1/2002
Second Amendment to Larkspur Landing Shopping Center
Retail Lease Agreement
dated 11/20/2003
Bay Area Wireless Resource, California corporation 4/14/03 Commencement Date Memorandum dated 4/14/2003
Inc.
Bed Bath & Beyond Inc. New York corporation 6/1/02 Commencement Date Memorandum dated 12/02/2002; Lease
Area Verification by Casco dated 2/24/2003
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, DDS Individual 4/15/88 First Amendment of Lease
dated 3/25/1993
Second Amendment of Lease
dated 4/27/1998
Third Amendment of Shopping Center Lease
dated 8/5/2003.
California State Automobile California reciprocal 3/10/03 N/A
Inter-Insurance Bureau dba Inter-insurance exchange
CSAA Insurance
2
LEASE
LEGAL NAME OF TENANT TYPE OF ENTITY DATE AMENDMENTS, ETC.
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Alley, Inc. California corporation 6/--/2001 N/A
Determined Productions Inc. California corporation 12/21/00 Commencement Date Memorandum
dated 12/21/2000
Fidelity Brokerage Services, Delaware limited liability 2/1/01 Commencement Date Memorandum
LLC company dated 2/1/2001
General Nutrition Corporation Pennsylvania corporation 10/5/93 Certificate of Tenant and Term Agreement
dated 1/13/1994
First Amendment to Shopping Center Lease
dated 11/20/2003.
Vesta Industries, Inc. dba California corporation 2/27/96 First Amendment of Lease
Golden Gate Printing dated 7/6/1998
Second Amendment to Shopping Center Lease
Agreement and Ratification of Guaranty
dated 1/15/2003.
J.R. Muggs California corporation 3/18/87 First Amendment Extension of Lease
dated 2/24/1992
Second Amendment of Lease
dated 6/10/1997
Third Amendment to Shopping Center Lease
dated 3/1/2002
Tenant Estoppel
dated 10/1/2003.
▇▇▇▇▇▇ & Associates, Inc. California corporation 5/22/02 Commencement Date Memorandum dated 5/22/2002
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dba individuals 12/14/01 N/A
Lark Shoe Repair
Dr. ▇▇▇▇ ▇▇▇ dba Larkspur individual 1/31/97 Letter Agreement
Landing Optometry dated 4/1/2002
First Amendment to Shopping Center Lease Agreement
dated 1/6/2003.
3
LEASE
LEGAL NAME OF TENANT TYPE OF ENTITY DATE AMENDMENTS, ETC.
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Press and ▇▇▇▇ Press individuals 8/28/78 Certificate of Lessee
dba Larkspur Landing dated 6/26/1979
Veterinary Hospital First Amendment to Shopping Center Lease
dated 9/1/1980
Second Amendment of Lease
dated 7/31/1989
Letter Agreement Amending Lease
dated 3/18/1991
Third Amendment of Lease
dated 6/15/1993
Assignment of Lease
dated 9/10/1996
First Amendment to Assignment of Lease
dated 11/15/1996.
Marin Brewing Company Limited California limited 4/1/01 First Amendment
partnership dated 10/1/2003.
Marin County Department of public office 6/4/98 First Amendment to Shopping Center Lease
Parks, Open Space and dated 12/10/2001
Cultural Services dba Marin Second Amendment to Shopping Center Lease
County Convention and Agreement
Visitors Bureau dated 8/30/2002.
▇▇▇▇▇▇▇ the Cleaner, Inc. California corporation 9/15/90 First Amendment of Lease
dated 12/31/1990
Letter Agreement Amending Lease
dated 3/18/1991
Certificate of Tenant and Term Agreement
dated 10/21/1991
Landlord's Consent
dated 11/14/1996
Second Amendment of Lease
dated 3/13/2001.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dba ▇▇▇▇▇▇'▇ individual 4/1/02 First Amendment to Shopping Center Retail Lease
Restaurant Agreement
dated 2/1/2003.
Commencement Date Memorandum dated 4/1/2002;
▇▇▇▇▇▇ ▇▇▇▇▇, Inc. dba ▇▇▇▇▇▇ California corporation 3/1/01 First Amendment
▇▇▇▇▇ Jewelers dated 5/24/2002.
▇▇▇▇▇▇-▇▇▇▇▇ Corporation, Inc. California corporation 12/6/94 First Amendment of Lease
dated 9/15/1995
Certificate of Tenant and Term Agreement
dated 9/18/1995
Second Amendment of Lease
dated 1/22/1999.
4
LEASE
LEGAL NAME OF TENANT TYPE OF ENTITY DATE AMENDMENTS, ETC.
-----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ individuals 5/6/03 Commencement Date Memorandum dated 5/6/2003
▇▇▇▇▇▇▇▇ dba Pacific Liberty
Mortgage
▇▇▇▇ ▇▇▇▇▇ dba Ragged Sailor individual 3/2/01 First Amendment to Commercial Lease Agreement
Gallery and Framing dated 4/1/2003.
Red Hill Studios, Inc. California corporation 6/3/02 Commencement Date Memorandum dated 6/3/2002
Burrito Rama, Inc. dba California corporation 12/15/93 Certificate of Tenant and Term Agreement
Roadrunner Burrito dated 5/19/1995
First Amendment of Lease
dated 1/31/1997
Second Amendment of Lease
Undated
Third Amendment to Shopping Center Lease Agreement
dated 7/1/1999.
Sushi Man, Inc. dba Sushi-Ko California corporation 4/1/81 First Amendment to Shopping Center Lease
dated 10/19/1981
Extension of Lease
dated 6/22/1984
Extension of Lease
dated 8/15/1989
Second Amendment to Shopping Center Lease
Agreement
dated 8/31/1999.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ dba individuals 3/15/98 N/A
Togo's Delicatessen
Weight Watchers North Delaware corporation 11/20/02 Commencement Date Memorandum dated 12/2/2002
America, Inc.
The Yoga Studio, LLC California limited 2/15/02 Commencement Date Memorandum dated 12/2/2002
liability corporation
5
EXHIBIT F
LIST OF SERVICE CONTRACTS
VENDOR NAME DATE OF CONTRACT TYPE OF SERVICE
-------------------------------------------------------------------------------
ADT Alarm 4/1/96 Fire sprinkler flow monitoring
buildings 1-5
Empire Elevator 9/1/03 Elevator maintenance & 24-hour
monitoring
C & C Security 8/24/03 Center security
Diversified Fire Protection 9/21/01 24-hr monitoring bldgs. 1201,
1401, 1601, 2601 & 2801
Diablo Hydrojetting 3/16/98 Sewer line maintenance
Gardener's Guild 9/21/01 Landscape maintenance
Crystal Clear 3/17/02 Fountain maintenance
MBM 1/1/98 Janitorial service
Mainstreet Awning 9/24/99 Awning cleaning
Muzak 1/21/03 Music in buildings 1-5
Republic Electric 2/1/03 Parking lot light replacement
VENDOR NAME DATE OF CONTRACT TYPE OF SERVICE
--------------------------------------------------------------------------------
Terminix 11/16/01
U.S. Bancorp/BCL Capital 10/6/97 Trash compactor lease
2
EXHIBIT G
INTENTIONALLY DELETED
EXHIBIT H
FORM OF TENANT ESTOPPEL CERTIFICATES
Tenant Estoppel Certificate Form - General
To:
Inland Real Estate Acquisitions, Inc., and
Inland Western Larkspur-Drake, L.L.C.
and its respective lenders, successors and assigns (collectively,
"Purchaser")
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇
Re: Lease Agreement dated ______________ and amended _______________ ("Lease"),
between _______________________________________________ as "Landlord", and,
as "Tenant", guaranteed by _______________________________________________
("Guarantor") for leased premises known as (the "Premises") of the property
commonly known as (the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and waivers
related to the Lease
b. Commencement Date
c. Expiration Date
d. Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases _______________ __________________
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options _____ Additional Terms for
________ years at $________ per year
i. Termination Options Termination Date ___________________
Fees Payable _______________________
2. Tenant further certifies to Purchaser that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been sublet
by Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or
abatements required to be given by Landlord to Tenant have been given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to pay
interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in paragraph
1(i));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or directives
relating to the use or condition of the Premises or the Property;
l. no hazardous wastes or toxic substances, as defined by all applicable
federal, state or local statutes, rules or regulations have been
disposed, stored or treated on or about the Premises or the Property
by Tenant;
m. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein;
2
n. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws;
o. the Lease does not give the Tenant any operating exclusives for the
Property; and
p. Rent has been paid through ______________ ,2003.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease
until Tenant is notified otherwise in writing by Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at lender's
request, so long as the lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant
further acknowledges and agrees that Purchaser (including its lender),
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
Its:
----------------------
Date: , 2003
-----------
3
EXHIBIT I
INTENTIONALLY DELETED
EXHIBIT J
FORM OF DEED
[Subject to review by local counsel before December 16, 2003]
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
________________________
________________________
________________________
MAIL TAX STATEMENTS TO:
SAME AS ABOVE
--------------------------------------------------------------------------------
(ABOVE SPACE FOR RECORDER'S USE ONLY)
GRANT DEED
The undersigned Grantor declares that Documentary Transfer Tax is not part
of the public records.
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
_______________________, grants to _________________________, all that certain
real property located in the City of ______________, County of ______________,
State of ____________, which is more particularly described in Schedule 1,
attached hereto and incorporated herein by this reference; subject to:
1. All matters of record;
2. All matters which a physical inspection or accurate survey of the
above property would show.
IN WITNESS WHEREOF, this Grant Deed has been executed as of the date listed
below.
Dated Executed by Grantor: _______, 2003
GRANTOR:
--------------------------
By:
-----------------------
Name:
---------------------
Title:
--------------------
SCHEDULE 1 TO GRANT DEED
LEGAL DESCRIPTION OF REAL PROPERTY
EXHIBIT K
FORM OF ▇▇▇▇ OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, _______________________________ ("SELLER"), does hereby grant,
bargain, sell, convey, assign, transfer, and deliver to _______________________
("BUYER"), all of Seller's right, title and interest in and to all appliances,
fixtures, equipment, machinery, furniture, furnishings, decorations and other
personal property, if any, located on or about that certain real property
described in EXHIBIT A, attached hereto and incorporated by reference (the
"PROPERTY").
Seller covenants that it will, at any time and from time to time upon
written request therefor, at Buyer's sole expense and without the assumption of
any additional liability thereby, execute and deliver to Buyer, its nominees,
successors and/or assigns, any new or confirmatory instruments and do and
perform any other acts which Buyer, its nominees, successors and/or assigns, may
reasonably request in order to fully assign and transfer to and vest in Buyer,
its nominees, successors and/or assigns, and protect its or their rights, title
and interest in and enjoyment of, all of the assets of Seller intended to be
transferred and assigned hereby, or to enable Buyer, its nominees, successors
and/or assigns, to realize upon or otherwise enjoy any such assets.
This Agreement may be executed in any number of identical counterparts, and
each counterpart hereof shall be deemed to be an original instrument, but all
counterparts hereof taken together shall constitute but a single instrument.
(SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties have signed and delivered this ▇▇▇▇ of Sale
as of the_____day of____________, 2003.
SELLER:
-----------------------------, a
-----------------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
2
EXHIBIT A TO ▇▇▇▇ OF SALE
Property Description
EXHIBIT L
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SERVICE CONTRACTS dated as of
_______________, 2003 (this "ASSIGNMENT"), is made by ______________________
("ASSIGNOR"), in favor of _____________________ ("ASSIGNEE").
R E C I T A L S
A. Assignor, as "Seller", and Assignee, as "Buyer", have entered into
that
Purchase and Sale Agreement and Joint Escrow Instructions ("PURCHASE
AGREEMENT") dated as of ________________, 2003 ("PURCHASE AGREEMENT"), for the
purchase and sale of certain real property commonly known as _________________,
City of ___________________, County of _________________, State of
________________ (the "PROPERTY"), as more particularly described in the
Purchase Agreement.
B. Concurrently herewith, pursuant to the Purchase Agreement, Assignor is
transferring and conveying to Assignee all of Assignor's right, title and
interest in and to the Property.
C. Assignor desires to assign to Assignee, and Assignee desires to take
assignment of and assume the Leases and Contracts (defined below).
NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is
acknowledged:
1. Assignor hereby assigns and transfers to Assignee all present and
future right, title and interest of Assignor in, to and under the leases
described on EXHIBIT A attached hereto and incorporated herein (collectively,
the "LEASES"), together with any guaranties of any of the Leases in favor of
Assignor, any and all rights, title, estates and interests of Assignor in and to
such security deposits and prepaid rents, if any, as have been paid to Assignor
pursuant to such Leases and not previously applied pursuant to the Leases.
2. Assignor hereby assigns and transfers to Assignee all of Assignor's
right, title and interest in and to (a) those service contracts listed on
EXHIBIT B, attached hereto and incorporated by reference (the "CONTRACTS"); (b)
any and all extensions, renewals, modifications and amendments with respect to
the Contracts; and (c) any and all deposits or other sums now held by Assignor
or by any other party on behalf of Assignor under or with respect to the
Contracts.
3. Assignee accepts the foregoing assignment and assumes shall pay,
perform and discharge, as and when due, all of the agreements and obligations of
Assignor under the Contracts and the Leases arising from and after the date
hereof and agrees to be bound by all of the terms and conditions of the
Contracts and the Leases.
4. Subject to the limitations on liability contained in the Purchase
Agreement, including, without limitation, Section 9.4 of the Purchase Agreement,
Assignor shall be responsible for any breach or default under the Leases arising
and accruing during Seller's period of ownership, excepting any such breach or
default related to the physical or environmental condition of the Property.
4. The provisions of this Assignment shall be binding upon, and shall
inure to the benefit of the successors and assigns of Assignor and Assignee,
respectively.
5. This Assignment may be executed in one or more counterparts, all of
which when taken together shall constitute one and the same instrument.
[SIGNATURES BEGIN ON NEXT PAGE.]
2
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first set forth above.
ASSIGNOR: -------------------------, a
-------------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
ASSIGNEE: -------------------------, a
-------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
3
EXHIBIT A TO FORM OF ASSIGNMENT AND ASSUMPTION OF
LEASES AND SERVICE CONTRACTS
Leases
EXHIBIT B TO FORM OF ASSIGNMENT AND ASSUMPTION OF
LEASES AND SERVICE CONTRACTS
Service Contracts
EXHIBIT M
FORM OF GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (this "ASSIGNMENT") is made and entered into this
________ day of _________, 2003, by and between ___________, a ______________
("ASSIGNOR"), and __________, a ___________ ("ASSIGNEE"),
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which
are hereby acknowledged, Assignor grants, sells, transfers, conveys and assigns
to Assignee, to the extent assignable by Assignor, all right, title and interest
of Assignor in and to all warranties, permits, franchises, licenses,
certificates of occupancy, soil and other reports and studies, surveys, maps,
utility contracts, plans and specifications, engineering plans and studies,
floor plans and landscape plans ("INTANGIBLE PERSONAL PROPERTY") relating to
that certain real property commonly known as __________, located in the city of
San ▇▇▇▇, County of Santa ▇▇▇▇▇, State of California, and more particularly
described in EXHIBIT A attached hereto.
Assignor covenants that it will, at any time and from time to time upon
written request therefor, at Assignee's sole expense and without the assumption
of any additional liability therefor, execute and deliver to Assignee, and its
successors and assigns, any new or confirmatory instruments and take such
further acts as Assignee may reasonably request to fully evidence the assignment
contained herein and to enable Assignee, and its successors and assigns, to
fully realize and enjoy the rights and interests assigned hereby.
The provisions of this Assignment shall be binding upon, and shall insure
to the benefit of, the successors and assigns of Assignor and Assignee,
respectively.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
[SIGNATURE BEGINS ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have executed this Assignment effective as
of the date first above written.
ASSIGNOR: -------------------------------------, a
-------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ASSIGNEE: -------------------------------------, a
-------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
2
EXHIBIT A TO FORM OF GENERAL ASSIGNMENT
Legal Description
EXHIBIT N
FORM OF OWNER'S STATEMENT
The undersigned ("Owner") hereby certifies to Chicago Title Insurance
Company ("Title Company") that, to Owner's knowledge, the following statements
are true with respect to the real property (the "Property") described in the
Preliminary Title Report (the "Title Report") issued by Title Company as of
__________, under order number ___________.
1. Except for (a) work that has been performed in tenant spaces in the
previous 120 days or is presently being performed in tenant spaces, and (b) work
that has been performed or is currently being performed or supplies that have
been furnished or are currently being furnished by the materialmen, suppliers
and contractors identified on Schedule "2" attached hereto, there are no past
due bills for the performance of labor at, or the provision of materials or
supplies for, the Property performed or provided at the written request, or with
the written approval, of Owner, other than those that will be paid in the
ordinary course of business.
2. The only permitted occupants of the Property are tenants under leases (and
their subtenants) with rights of possession only, which leases are listed on the
lease summary attached as Schedule "3", and any person or entity identified on
Schedule B to the Title Report.
3. Other than that certain
Purchase and Sale Agreement and Joint Escrow
Instructions dated as of __________ by and between the undersigned and Lexington
Corporate Properties Trust (as amended, the "Purchase Agreement), the
undersigned has not entered into any options to purchase the Property or rights
of first refusal to purchase the Property, either pursuant to written leases or
by separate agreements.
4. Other than the Purchase Agreement, the undersigned has not entered into any
unrecorded sale contracts, deeds, mortgages or purchase options affecting the
Subject Property or improvements thereon, which are presently in effect, except
as set forth in the Title Report.
The undersigned makes these statements for the purpose of inducing the
Title Company to issue the endorsements to one or more of the owner's or loan
policies in connection with a transaction by Owner with respect to the Property
and not in connection with the issuance of any subsequent policy, and this
Owner's Statement shall not be disclosed, released or quoted to or relied upon
by any other person.
Any statement "to the undersigned's knowledge" (or similar phrase) shall
mean that the undersigned have no knowledge that such statement is untrue (and,
for this purpose, the undersigned's knowledge shall mean the present actual
knowledge excluding constructive or imputed knowledge of ▇▇▇▇ ▇▇▇, but such
individual shall not have any personal liability in connection herewith).
Notwithstanding anything to the contrary herein, (1) any cause of action for a
breach of this Certificate shall survive until 6 months after the date hereof,
at which time the provisions hereof (and any cause of action resulting from any
breach not then in litigation in Marin County, California) shall terminate; and
(2) to the extent the Title Company shall have knowledge as of the date hereof
that any of the statements contained herein is false or inaccurate, then the
undersigned shall have no liability with respect to the same.
This Certificate is executed as of the __________ day of __________, 2003
By:
Name:
Title:
EXHIBIT O
E&O LEASE TERMS
DATE OF LEASE December 10, 2003
PROPERTY: Larkspur Landing Shopping Center
Larkspur, California
LANDLORD AND ADDRESS: Larkspur Landing, LLC,
a Delaware limited liability company
c/o Simeon Commercial Properties
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
TENANT AND ADDRESS FOR E&O Larkspur, LLC.
NOTICES: c/o E&O Trading Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
PREMISES, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 6,300
RENTABLE AREA: rentable square feet consisting of 4,880
square feet on the ground floor plus 1,420
square feet on the second level as depicted
on the lease outline drawing attached hereto
as Exhibit A (plus the use of approximately
1000 square feet in the Patio Area as
defined in Section 1(b) of the Lease).
TERM: 15 years
RENEWAL OPTION: 2 five (5) year renewal options
VALET: Landlord will contribute $15,000 for the
costs incurred by Tenant in establishing a
valet parking program.
INITIAL BASE RENT: Months Monthly Base Rent
1 - 60 $15,120.00
61 - 120 $17,388.00
121 - 180 $19,996.20
Tenant shall pay the Base Rent for the first
full calendar month of the Term in the
amount of $15,120.00 upon the Commencement
Date.
PERCENTAGE RENT: A sum equal to six percent (6%) of the
amount by which Percentage Rent Sales during
each calendar year of the Term (including
extensions) exceed the natural breakpoint
established by applying six percent (6%) to
the Monthly Base Rent for the Premises on an
annualized basis. The foregoing amounts of
Percentage Rent Sales shall be adjusted each
time that the Monthly Base Rent is adjusted
in the same proportion as Monthly Base Rent
is adjusted. For example, the natural
breakpoint during the first through the
fifth Lease Years is $3,024,000.00
(181,440/.06); the natural breakpoint during
the sixth through tenth Lease Year is
$3,477,600.00 (208,656/.06) and the natural
breakpoint during the eleventh through the
fifteenth Lease Year is $3,999,240.00
(239,954.40/.06). The foregoing natural
breakpoint is hereinafter referred to as the
"Annual Breakpoint".
RENTABLE AREA OF LARKSPUR 173,420 rentable square feet
LANDING CENTER:
TENANT'S PERCENTAGE SHARE 3.633%
OF PROPERTY:
MONTHLY ADVERTISING & $1.55 per square foot per annum
PROMOTIONAL EXPENSE:
TENANT'S TRADE NAME: E&O Trading Company, or such other name as
Tenant uses in its other locations.
USE: Operation of first class, full service
casual Asian cuisine restaurant, including a
catering business and take-out business,
with a bar and/or lounge for the service of
alcoholic beverages. The Premises may also
be used for the incidental sale of related
merchandise. A portion of the Premises may
be used for Tenant's general office
operations.
TENANT IMPROVEMENT $630,000.00
ALLOWANCE:
BASE BUILDING Up to $500,000.00
CONTRIBUTION:
LANDLORD'S BROKER: Terranomics Retail Services and Stanners &
Associates, SIMEON Commercial Properties.
Leasing Commission: $189,888.30