Exhibit 10.11
REAL PROPERTY PURCHASE AGREEMENT
MALL ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
SELLER:
PORTLAND PLAZA 205, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
PLAZA PARCEL, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
MALL 205, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
S.E. 96TH AVE., L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
S.E. WASHINGTON ST., L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
PM 205 PARCEL, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
BUYER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
AN ILLINOIS CORPORATION
DECEMBER 3, 2003
REAL PROPERTY PURCHASE AGREEMENT
MALL ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
THIS REAL PROPERTY PURCHASE AGREEMENT (this "AGREEMENT") is made as of
December 3, 2003 (the "EFFECTIVE DATE"), by and between PORTLAND PLAZA 205,
L.L.C., a Delaware limited liability company ("PLAZA 205"), PLAZA PARCEL,
L.L.C., a Delaware limited liability company ("PLAZA PARCEL"), MALL 205, L.L.C.,
a Delaware limited liability company ("MALL 205"), S.E. 96th AVE., L.L.C., a
Delaware limited liability company ("96TH"), S.E. WASHINGTON ST., L.L.C., a
Delaware limited liability company ("WASHINGTON"), and PM 205 PARCEL, L.L.C., a
Delaware limited liability company ("PM 205"), and INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation ("BUYER").
R E C I T A L S
The property which is the subject of this Agreement consists of an
approximately 307,218 square foot shopping center located at ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, owned by ▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and PM
205 and commonly known as "Mall 205," and an approximately 173,530 square foot
shopping center located at 10302-10542 ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
owned by Plaza 205 and Plaza Parcel and commonly known as "Plaza 205."
Plaza ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and PM 205
(collectively referred to as "SELLER") are willing to sell, and Buyer is willing
to purchase, all of Seller's right, title and interest in and to the Property
(as defined below), on the terms and conditions documented in this Agreement.
NOW, THEREFORE, in consideration of the respective promises contained in
this Agreement, Buyer and Seller agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller will sell to Buyer, and Buyer will purchase from Seller, all
of Seller's right, title and interest in and to the following (collectively, the
"PROPERTY"): (A) (1) that certain land (the "MALL 205 LAND") located at ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, as more particularly described in
EXHIBIT A-1 attached hereto, and (2) that certain land (the "PLAZA 205 LAND")
located at 10302-10542 ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ as more
particularly described in EXHIBIT A-2 attached hereto (the Mall 205 Land and the
Plaza 205 Land are collectively referred to as the "LAND"); (B) all
improvements, structures and fixtures located upon the Mall 205 Land (the "MALL
205 IMPROVEMENTS") and all improvements, structures and fixtures located upon
the Plaza 205 Land (the "PLAZA 205 IMPROVEMENTS") (the Mall 205 Improvements and
the Plaza 205 Improvements are collectively referred to as the "IMPROVEMENTS");
(C) all tangible personal property located on and used solely in connection with
all or any portion of the Mall 205 Land and the Mall 205 Improvements are
described in EXHIBIT B-1 attached hereto (the "MALL 205 PERSONAL PROPERTY"), and
all tangible personal property located
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on and used solely in connection with all or any portion of the Plaza 205 Land
and the Plaza 205 Improvements are described in EXHIBIT B-2 attached hereto (the
"PLAZA 205 PERSONAL PROPERTY") (the Mall 205 Personal Property and the Plaza 205
Personal Property are collectively referred to as the "PERSONAL PROPERTY"); (D)
the interest of the landlord in and to all leases of space of all or any portion
of the Mall 205 Land and the Mall 205 Improvements (the "MALL 205 TENANT
LEASES"), and the interest of the landlord in and to all leases of space of all
or any portion of the Plaza 205 Land and the Plaza 205 Improvements (the "PLAZA
205 TENANT LEASES") (the Mall 205 Tenant Leases and the Plaza 205 Tenant Leases
are collectively referred to as the "TENANT LEASES"); and (E) subject to the
provisions of Paragraph 6A(3), all contracts, agreements, permits, licenses and
warranties held solely for use in connection with all or any portion of the Mall
205 Land, the Mall 205 Improvements and the Mall 205 Personal Property, and the
rights, if any, to the name Mall 205 (the "MALL 205 INTANGIBLE PROPERTY"), and,
subject to the provisions of Paragraph 6A(3), all contracts, agreements,
permits, licenses and warranties held solely for use in connection with all or
any portion of the Plaza 205 Land, the Plaza 205 Improvements or the Plaza 205
Personal Property, and the rights, if any, to the name "Plaza 205" (the "PLAZA
205 INTANGIBLE PROPERTY") (the Mall 205 Intangible Property and the Plaza 205
Intangible Property are collectively referred to as the "INTANGIBLE PROPERTY").
The Mall 205 Land, the Mall 205 Improvements, the Mall 205 Personal Property,
the Mall 205 Tenant Leases and the Mall 205 Intangible Property are identified
herein as the "MALL 205 PROPERTY." The Plaza 205 Land, the Plaza 205
Improvements, the Plaza 205 Personal Property, the Plaza 205 Tenant Leases and
the Plaza 205 Intangible Property are identified herein as the "PLAZA 205
PROPERTY."
2. PURCHASE PRICE. The purchase price for the Property will be
Seventy-Six Million and No/100 Dollars ($76,000,000.00) ("PURCHASE PRICE"). For
purposes of this Agreement, the Purchase Price will be allocated as follows:
Fifty-Five Million and No/100 Dollars ($55,000,000.00) will be allocated to the
Mall 205 Property, and Twenty-One Million and No/100 Dollars ($21,000,000.00)
will be allocated to the Plaza 205 Property.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price will be paid to Seller
by Buyer as follows:
A. INITIAL DEPOSIT. Upon the execution by Buyer of this
Agreement, Buyer will deliver to Chicago Title Insurance Company, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ("ESCROW
HOLDER"), a cashier's check or wire transfer of immediately available federal
funds, in the amount of One Million and No/100 Dollars ($1,000,000.00) ("INITIAL
DEPOSIT").
B. ADDITIONAL DEPOSIT. If this Agreement is not terminated by Buyer
in accordance with Paragraph 5, Buyer will deliver to Chicago Title Insurance
Company of Oregon (the "TITLE COMPANY"), ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (phone number ▇▇▇-▇▇▇-▇▇▇▇), within two
(2) business days after the expiration of the Due Diligence Period, a cashier's
check or wire transfer of immediately available federal funds, in the amount of
One Million and No/100 Dollars ($1,000,000.00) ("ADDITIONAL DEPOSIT").
Concurrently with the delivery of the Additional
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Deposit to the Title Company, Buyer will provide written notice to Escrow Holder
directing Escrow Holder to transfer the Initial Deposit to the Title Company and
to assign to the Title Company all of its rights and obligations under the
Escrow Agreement (as defined below). Buyer will cause the Title Company to
assume all of the rights and obligations of Escrow Holder under the Escrow
Agreement. The Initial Deposit and the Additional Deposit, if made pursuant to
this Paragraph 3B, together with the interest earned on such amount while in the
Title Company's or Escrow Holder's possession, are referred to collectively in
this Agreement as the "DEPOSIT." The Deposit will be applied in accordance with
the terms of Paragraph 3D below and held by Escrow Holder (and, upon assignment
by Escrow Holder, the Title Company) in accordance with the terms of a separate
escrow agreement in the form of EXHIBIT D hereto and dated as of the date hereof
by and among Buyer, Seller and Escrow Holder (the "ESCROW AGREEMENT").
C. CLOSING PAYMENT. The balance of the Purchase Price, as adjusted
by the prorations and credits specified in this Agreement, will be paid to Title
Company by wire transfer of immediately available federal funds on or before
9:00 a.m. Pacific Time on Friday, January 2, 2004 (the "INITIAL CLOSING DATE").
Seller will be entitled to extend the Initial Closing Date to Monday, February
2, 2004 (the "EXTENDED CLOSING DATE") by notice to Buyer and the Title Company
delivered at any time prior to 5:00 p.m. Pacific Time on Tuesday, December 30,
2003. The Initial Closing Date and the Extended Closing Date are referred to
herein as the "CLOSING DATE." The amount to be paid under this subparagraph C,
together with the Deposit, is referred to in this Agreement as the "CLOSING
PAYMENT."
D. REMEDIES, LIQUIDATED DAMAGES. IF THE CLOSING DOES NOT OCCUR DUE
TO BUYER'S DEFAULT UNDER THIS AGREEMENT, IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES THAT SELLER MAY SUFFER. THEREFORE, THE PARTIES
HAVE AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER
WOULD SUFFER IN SUCH EVENT IS AND WILL BE TITLE COMPANY'S DELIVERY OF THE
DEPOSIT TO SELLER AS LIQUIDATED DAMAGES, AS SELLER'S SOLE AND EXCLUSIVE REMEDY
UNDER THIS AGREEMENT (SUBJECT TO THOSE PROVISIONS OF THIS AGREEMENT WHICH, BY
THEIR EXPRESS TERMS, SURVIVE A TERMINATION OF THIS AGREEMENT). SUCH LIQUIDATED
DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF
APPLICABLE LAW. IF THE CLOSING DOES NOT OCCUR FOR ANY REASON OTHER THAN BUYER'S
DEFAULT UNDER THIS AGREEMENT, THEN THIS AGREEMENT WILL TERMINATE AND NEITHER
PARTY WILL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS TO EACH OTHER HEREUNDER,
EXCEPT FOR (1) THE RIGHT OF BUYER TO THE RETURN OF THE DEPOSIT, (2) THOSE
PROVISIONS OF THIS AGREEMENT WHICH, BY THEIR EXPRESS TERMS, SURVIVE A
TERMINATION OF THIS AGREEMENT, AND (3) IF THE CLOSING FAILS TO OCCUR SOLELY
BECAUSE OF SELLER'S DEFAULT, THEN, BUYER, AS ITS SOLE AND EXCLUSIVE REMEDY MAY
EITHER (A) RECOVER THE DEPOSIT OR (B) BRING AN ACTION FOR SPECIFIC PERFORMANCE
OF THIS AGREEMENT. IF THE CLOSING OCCURS IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT, SELLER WILL APPLY THE DEPOSIT AS A CREDIT TOWARD THE PURCHASE PRICE.
THIS PARAGRAPH 3D WILL SURVIVE THE TERMINATION OF THIS AGREEMENT AND
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NOTHING IN THIS PARAGRAPH 3D IS INTENDED TO LIMIT THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER PARAGRAPH 11E.
------------------------- -------------------------
BUYER'S INITIALS SELLER'S INITIALS
4. TITLE.
A. TITLE REPORT. Seller has delivered to Buyer (1) preliminary
reports for the Property from the Title Company; and (2) copies of the plats of
record, vesting deeds and other documents evidencing the exceptions to title
stated therein (collectively, the "TITLE REPORT"). Seller has also previously
delivered to Buyer surveys of the Property (collectively, the "SURVEY"). Unless
Buyer gives written notice (the "TITLE DISAPPROVAL NOTICE") that it disapproves
the exceptions to title shown on the Title Report or the matters disclosed by
the Survey, stating the exceptions so disapproved, on or before that day which
is fifteen (15) days prior to the expiration of the Due Diligence Period, Buyer
will be conclusively deemed to have approved the Survey and the exceptions
listed in the Title Report. Seller will have up to ten (10) days after its
receipt of any Title Disapproval Notice within which to deliver Buyer a notice
(the "SELLER RESPONSE NOTICE") indicating that it will, prior to the Closing
Date, remove some or all of the disapproved exceptions set forth therein from
title or to correct any matters disclosed by the Survey or to obtain from Title
Company a commitment to issue an endorsement affirmatively insuring against such
exceptions or matters in a form reasonably acceptable to Buyer at no cost or
expense to Buyer, and, if necessary, the Closing Date will be extended to allow
for such ten (10) day period. In the event Seller determines at any time that it
is unable or unwilling to remove or to cause the Title Company to insure over
any such disapproved exception or to correct any Survey matter, Seller may, at
its option, terminate this Agreement upon written notice to Buyer, such
termination to be effective on the date which is five (5) days after Seller
delivers such notice, unless Buyer will have waived its objection to any such
disapproved exception or Survey matter by written notice to Seller within five
(5) days following delivery of Seller's notice. Unless Buyer gives written
notice to Seller, prior to the expiration of such five (5) day period, stating
that the Seller Response Notice is unacceptable and that Buyer is terminating
this Agreement, Buyer will be conclusively deemed to have approved the terms of
the Seller Response Notice. In the event of such termination, the Deposit will
promptly be returned to Buyer and the parties will have no further liabilities
or obligations hereunder, except such liabilities and obligations that expressly
survive a termination of this Agreement.
B. TITLE CONTINGENCY. A condition precedent to Buyer's obligation to
purchase the Property will be the willingness of Title Company to issue to Buyer
on the Closing Date an A.L.T.A. extended coverage owner's policies of title
insurance together with the following endorsements: zoning 3.1 (with parking and
loading), comprehensive, contiguity and access (collectively, the "OWNER'S
POLICY"), in the face amount of the Purchase Price, which Owner's Policy will
show title to the Property to be vested of record in Buyer, subject solely to
the following exceptions (the "PERMITTED EXCEPTIONS"): (1) the lien of any real
estate taxes and assessments for the "Current Tax Year" (as defined
4
below) and subsequent periods, provided that the same are prorated in accordance
with this Agreement; (2) all matters caused directly or indirectly by Buyer, its
agents, employees or contractors; and (3) any exceptions approved or deemed
approved by Buyer pursuant to subparagraph A above. Buyer will have the right to
obtain whatever additional endorsements to the Owner's Policy that it desires to
obtain, but, except as indicated above, the availability of such endorsements
will not be a condition to Buyer's obligation to consummate the transaction
described herein.
5. DUE DILIGENCE CONTINGENCY. Seller has heretofore provided Buyer
with the information described in EXHIBIT D-1 attached hereto. During the Due
Diligence Period, Seller will provide the information described in EXHIBIT D-2
attached hereto. Subject to the terms of the Tenant Leases, Seller will provide
Buyer with reasonable access to the Property during business hours upon not less
than two (2) business days notice. Seller will also make available to Buyer for
its inspection and photocopying such Tenant Leases and other documents
evidencing the Intangible Property in its possession as Buyer will reasonably
request, all upon reasonable advance notice. Seller will not deliver to Buyer
confidential and proprietary materials, including, without limitation, the
following: (1) information contained in Seller's credit reports, credit
authorizations, credit for financial analyses or projections, steering committee
sheets, account summaries or other internal documents relating to the Property,
including any valuation documents and the book value of the Property; (2)
material which is subject to attorney client privilege or which is attorney work
product; (3) appraisal reports or letters; and (4) financial statements of
Seller or any affiliate of Seller.
Commencing on the Effective Date and continuing until 5:00 p.m.
Pacific Time on Monday, December 29, 2003 (the "DUE DILIGENCE PERIOD"), Buyer
will be entitled to perform, at its sole expense, its due diligence
investigations of the Property. Buyer will at all times conduct such due
diligence in compliance with applicable laws and the terms of the Tenant Leases,
and in a manner so as to not cause damage, loss, cost or expense to Seller, the
Property or the tenants of the Property (and without interfering with or
disturbing any tenant at the Property), and Buyer will promptly restore the
Property to its condition immediately preceding such inspections and
examinations and will keep the Property free and clear of any mechanic's liens
or materialmen's liens in connection with such inspections and investigations.
In no event will Buyer communicate with any tenant of the Property or any
governmental authority having jurisdiction over the Property without Buyer
providing prior written or telephonic notice to Seller and affording Seller the
opportunity to participate in any such meeting or communication. Buyer will
provide Seller with certificates evidencing the commercial general liability
insurance policies which will be maintained by Buyer and each consultant which
Buyer will have present on the Property in connection with its investigations
upon the Property prior to the date of entry upon the Property. The limits,
coverage and insurer under such policies must be reasonably satisfactory to
Seller. Without limitation on the foregoing, Buyer must maintain (i) commercial
general liability insurance, in an amount not less than $2,000,000 combined
limits for any injuries, deaths or property damage sustained as a result of any
one accident or occurrence, (ii) worker's compensation insurance at statutory
limits, and (iii) employer's liability insurance in an amount not less than
$2,000,000 for each accident, disease per employee and disease policy limit. The
commercial general liability insurance will name as an additional insured each
of Seller and its agents and affiliates
5
identified to Buyer. Any representative of Buyer that conducts environmental
inspections of the Property will also provide evidence of environmental
liability insurance of not less than $2,000,000. In addition, Buyer and Buyer's
representatives waive any claims against Seller and Seller's employees and
agents for any injury to persons or damage to property arising out of any
inspections or physical testing of the Property, including any damage to the
tools and equipment of Buyer and Buyer's representatives, all of which will be
brought on the Property at the sole risk and responsibility of Buyer and Buyer's
representatives. Buyer will conduct its investigations, reviews and examinations
of the Property solely during business hours and upon at least two (2) business
days prior written notice to Seller, and Seller will have the right, at its
option, to cause a representative of Seller to be present at all such
inspections, reviews and examinations. Buyer will keep all information or data
received or discovered in connection with such due diligence strictly
confidential in accordance with Paragraph 11F. Any intrusive physical testing
(environmental, structural or otherwise) at the Property (such as soil borings
or the like) will be conducted by Buyer only after obtaining Seller's prior
written consent to such testing, which consent will be conditioned upon, among
other things, Seller's approval of the following: (a) the contractor who will be
conducting such testing; (b) such contractor's insurance coverage as provided
above; (c) the scope and nature of the testing to be performed by such
contractor; and (d) the written agreement by such contractor to be bound by the
confidentiality provisions of Paragraph 11F. Buyer will indemnify, protect,
defend and hold Seller harmless from and against any obligation, liability,
claim (including any claim for damage to property or injury to or death of any
persons), lien or encumbrance, loss, damage, cost or expense, including
reasonable attorney's fees, whether or not legal proceedings are instituted
(individually, a "CLAIM"), in any way arising from the inspections or
examinations of the Property by Buyer or its agents or contractors.
At any time prior to expiration of the Due Diligence Period, Buyer
shall, in its sole discretion, be entitled to deliver a written notice (the
"TERMINATION NOTICE") to Seller, Escrow Holder and the Title Company in
accordance with the terms of this Agreement, stating that Buyer has elected to
terminate this Agreement. Upon delivery of such Termination Notice, Buyer may
unilaterally direct the Escrow Holder to return the Initial Deposit to Buyer,
and this Agreement shall terminate, and except as otherwise provided herein, the
parties shall have no further liability or obligation hereunder. If Buyer fails
to deliver the Termination Notice to Seller, Escrow Holder and the Title Company
prior to the expiration of the Due Diligence Period, then Buyer will not have
the right to terminate this Agreement pursuant to this Paragraph 5 and this
Agreement shall remain in full force and effect.
6. CLOSING. The sale and purchase herein provided will be consummated
through the mail or via overnight delivery service with all deliveries required
hereunder (other than delivery of the Closing Payment, which will be made in
accordance with the terms of Paragraph 3(C) above) being made to the Title
Company on or before 11:00 a.m. Pacific Time on the date one (1) business day
prior to the Closing Date.
A. ESCROW. On or before 11:00 a.m. Pacific Time on the date one
(1) business day prior to the Closing Date, the parties will deliver to Title
Company the following:
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(1) BY SELLER. Seller will deliver (a) duly executed and
acknowledged Statutory Special Warranty Deeds covering the Mall 205 Land, the
Plaza 205 Land and the Improvements, in the form of EXHIBIT E attached hereto
(collectively, the "DEEDS"); (b) four (4) duly executed counterpart originals of
the ▇▇▇▇ of sale, assignment and assumption covering the Personal Property, the
Service Contracts that Buyer elects to assume, the Tenant Leases and the
Intangible Property, in the form of EXHIBIT F attached hereto (the "▇▇▇▇ OF
SALE, ASSIGNMENT AND ASSUMPTION"); (c) certificates of each party comprising
Seller respecting the "non-foreign" status of Seller in the form of EXHIBIT G
attached hereto; (d) a certificate (the "CLOSING CERTIFICATE"), dated as of the
Closing Date and duly executed by each party comprising Seller, in the form of
EXHIBIT H attached hereto, representing to Buyer that the representations and
warranties of Seller contained in this Agreement and required to be true and
correct as of the Closing Date are true and correct as of the Closing Date (or,
specifying in reasonable detail such exceptions, if any, which then exist); (e)
duly executed counterpart originals of a notice to each tenant of the Property
in the form of EXHIBIT I attached hereto (collectively, the "NOTICES TO
TENANTS"); (f) two (2) counterparts of an assignment and assumption agreement
with respect to the Target REA (as defined in Paragraph 10(b)(5)); (g) to the
extent Seller has in its possession original counterparts of the Leases, such
original counterparts; (h) a closing statement, dated as of the Closing Date and
duly executed by Seller, setting forth, among other things, all payments to and
from escrow in connection with the purchase and sale of the Property (the
"CLOSING STATEMENT"); (i) a copy of the rent roll for the Property, certified by
Seller as a true and correct copy of the rent roll (the "RENT ROLL") most
recently produced for Seller by the property management agent with respect to
the Property; and (j) evidence reasonably satisfactory to the Title Company that
all necessary authorizations of the transaction provided herein have been
obtained by Seller, and such other documents and instruments as may be
reasonably requested by the Title Company in order to consummate the transaction
contemplated hereby and issue the Owner's Policy (provided that the same do not
materially decrease Seller's rights or materially increase Seller's obligations
hereunder).
(2) BY BUYER. In addition to the Closing Payment which Buyer
will deliver to the Title Company in accordance with the terms of Paragraph 3(C)
above, Buyer will deliver to the Title Company (a) four (4) duly executed and
acknowledged counterpart originals of the ▇▇▇▇ of Sale, Assignment and
Assumption; (b) duly executed counterpart originals of the Notices to Tenants;
(c) two (2) counterparts of an assignment and assumption agreement with respect
to the Target REA; (d) a duly executed counterpart of the Closing Statement; and
(e) evidence reasonably satisfactory to Title Company that all necessary
authorizations of the transaction provided herein have been obtained by Buyer,
and such other documents and instruments as may be reasonably requested by Title
Company in order to consummate the transaction contemplated hereby and issue the
Owner's Policy (provided that the same do not materially decrease Buyer's rights
or materially increase Buyer's obligations hereunder).
(3) ASSIGNMENT OF CERTAIN INTANGIBLE PROPERTY. The ▇▇▇▇ of Sale,
Assignment and Assumption will cover all contracts, agreements, permits,
licenses and warranties that are assignable without the consent of third
parties, provided, however, (a) if an assignment of a roofing contractor's or
supplier's warranty may be obtained solely by payment of a fee, then Seller will
pay a fee to any such contractor or supplier in an
7
amount not to exceed $1000 per roof and $4000 in the aggregate, and Seller will
secure the consent of such party to the assignment of that contractor's or
supplier's warranty, and (b) if an assignment of any other contractor's or
supplier's warranty may be obtained solely by payment of a fee or if the consent
of a roofing contractor's or supplier's warranty may be obtained solely by
payment of a fee in excess of $1000 per roof and $4000 in the aggregate, and
Buyer pays such fee or, with respect to the roofing contractor or supplier, such
excess fee, then Seller will secure the consent of such party to the assignment
of the contractor's or supplier's warranty.
B. CONDITIONS TO CLOSING; DELIVERY TO PARTIES. In addition to
the conditions set forth in Paragraphs 4(B) and 10 hereof, the conditions to the
closing of such escrow will be the Title Company's receipt of funds and
documents described in subparagraph A above.
C. CLOSING COSTS. Buyer will pay (a) fifty percent (50%) of all
costs and expenses of the escrow arrangements; (b) the costs and expenses of any
endorsements to the Owner's Policy (except as indicated below) and the costs of
providing ALTA or "extended" coverage with respect to the Owner's Policy; (c)
the costs and expenses of the Survey incurred after the Effective Date; (d) all
recording fees for the recordation of the Deeds; and (e) the cost of any of its
examinations and inspections and audits of the Property, including the cost of
any of its appraisals, environmental, physical and financial audits, and, if
applicable, all costs associated with any financing to be obtained by Buyer
(including any application and commitment fees, and the costs of meeting any
lender requirements). Seller will pay (a) the recording fees for any instrument
in connection with the release of any existing liens; (b) fifty percent (50%) of
all costs and expenses of the escrow arrangements; (c) the basic premium for the
Owner's Policy and the cost of the zoning 3.1, comprehensive, contiguity and
access endorsements to the Owner's Policy; and (d) the "Commission" (as defined
below). All other closing costs not specifically allocated herein will be paid
by the parties as is customary in the county in which the Property is located.
Seller and Buyer will each pay their respective (i) legal fees and expenses,
(ii) share of prorations (as provided below), and (iii) cost of all opinions,
certificates, instruments, documents and papers required to be delivered, or
caused to be delivered, by it hereunder and the cost of all its performances
under this Agreement.
D. PRORATIONS.
(1) ITEMS TO BE PRORATED. The following will be prorated
between Seller and Buyer as of the Closing Date:
(a) TAXES AND ASSESSMENTS. All real estate and personal
property taxes and assessments pertaining to the Property that are due and
payable for any period prior to the Current Tax Year (as hereinafter defined)
will be paid by Seller at or prior to the Closing. All real estate and personal
property taxes and assessments on the Property for the current year (the
"CURRENT TAX YEAR") will be prorated between Seller and Buyer as of the Closing
Date (on the basis of the actual number of days elapsed over the applicable
period). If the amount of any such taxes has not been determined as of Closing,
such credit will be based on the most recent ascertainable taxes, subject to
readjustment after Closing upon receipt of actual tax bills. If any assessments
on the
8
Property are payable in installments, then the installment for the current
period will be prorated (with Buyer assuming the obligation to pay any
installments due after the Closing Date).
Upon the Closing Date and subject to the adjustment provided
above, Buyer will be responsible for real estate taxes and assessments on the
Property payable following the Closing Date. In no event will Seller be charged
with or be responsible for any increase in the taxes or assessments on the
Property resulting from the sale of the Property or from any improvements made
or leases entered into at any time or for any reason. With respect to the
Current Tax Year and all prior periods, Seller hereby reserves the right to
institute or continue any proceeding or proceedings for the reduction of the
assessed valuation of the Property, and, in its sole discretion (except as to
the Current Tax Year, in which event such decisions will be made in cooperation
with Buyer), to settle the same. Seller will have sole authority to control the
progress of, and to make all decisions with respect to, such proceedings. All
net tax refunds and credits attributable to any period prior to the Closing Date
which Seller has paid or for which Seller has given a credit to Buyer will
belong to and be the property of Seller. All net tax refunds and credits
attributable to any period subsequent to the Closing Date will belong to and be
the property of Buyer. Seller and Buyer agree to cooperate with one another in
connection with the prosecution of any such proceedings and to take all steps,
whether before or after the Closing Date, as may be necessary to carry out the
intention of this subparagraph, including the delivery to the other party, upon
demand, of any relevant books and records, including receipted tax bills and
cancelled checks used in payment of such taxes, the execution of any and all
consent or other documents, and the undertaking of any acts necessary for the
collection of such refund by the other party. Buyer agrees that, as a condition
to the transfer of the Property by Buyer, Buyer will cause any transferee to
assume the obligations set forth herein.
(b) RENTS. Buyer will receive a credit at Closing for all
rents, including estimated payments for operating expenses and real estate
taxes, collected by Seller prior to the Closing and allocable to the period
after Closing. No credit will be given to the Seller for accrued and unpaid rent
or any other non-current sums due from tenants until said sums are paid, and
Seller will retain the right to collect any such rent provided Seller does not
▇▇▇ to evict any tenants or terminate any Tenant Leases. Buyer will use
reasonable efforts after Closing to collect any rent under the Tenant Leases
which has accrued as of the Closing; provided, however, Buyer will not be
obligated to ▇▇▇ any tenants or exercise any legal remedies under the Tenant
Leases. Any portion of any rents collected subsequent to the Closing Date and
properly allocable to periods prior to the Closing Date will be paid, promptly
after receipt, to the Seller, but subject to all of the provisions of this
Paragraph hereof; and any portion thereof properly allocable to periods on or
subsequent to the Closing Date will be paid to Buyer. All payments collected
from tenants after Closing will first be applied to the month in which the
Closing occurs, then to any rent due to Buyer for the period after Closing and
finally to any rent due to Seller for the period prior to Closing; provided,
however, notwithstanding the foregoing, if Seller collects any payments from
tenants after Closing through its own collection efforts, Seller may first apply
such payments to rent due the Seller for the period prior to Closing. Tenants of
the Property may be obligated to pay, as additional rent, certain escalations in
or pass-throughs of operating and similar expenses of the
9
Property pursuant to the terms of the Tenant Leases (collectively, "ADDITIONAL
RENTS"). As to any Additional Rents that are based on estimates and that are
subject to adjustment or reconciliation pursuant to the Tenant Leases after the
Closing Date, Seller and Buyer will "re-prorate" such Additional Rents
(including any portions thereof that may be required to be refunded to tenants)
at the time that such estimates are actually adjusted or reconciled pursuant to
the terms of such Tenant Leases. Any amounts that may be due Seller as a result
of such re-prorations will be paid by Buyer to Seller promptly after Buyer
collects such amounts from the tenants, and any amounts that may be due the
tenants from Seller as a result of such re-prorations will be paid by Seller to
Buyer promptly after written request therefor is delivered to Seller by Buyer.
(c) PERCENTAGE RENT. Notwithstanding subparagraph (b)
above, the proration of that portion of Additional Rents representing rent
payable to the landlord by the tenant under a Tenant Lease which is in excess of
the fixed or minimum rent thereunder and which is a percentage of the sales of
such tenant ("PERCENTAGE RENT") payable under each Tenant Lease for the lease
year (the "CURRENT LEASE YEAR") thereunder in which the Closing Date occurs will
be prorated as provided in this subparagraph (c). The amount of Percentage Rent
to be allocated to Seller with respect to each Tenant Lease for the Current
Lease Year with respect thereto (subject, however, to reduction as hereinafter
provided) will be that amount equal to (i) the amount by which (A) the tenant's
gross receipts (to the extent taken into account in determining Percentage Rent
under such Tenant Lease) for that portion of such Current Lease Year occurring
prior to (but not including) the Closing Date exceed (B) the "Allocable Base
Amount" (as defined below), multiplied by (ii) the percentage specified in such
Tenant Lease to be used in determining such tenant's Percentage Rent for such
Current Lease Year. The "ALLOCABLE BASE AMOUNT" means that portion of the "Base
Amount" (as defined below) for such Current Lease Year determined by multiplying
such Base Amount for the entire Current Lease Year by a fraction, the numerator
of which is the number of days in such Current Lease Year occurring prior to and
including the Closing Date and the denominator of which is the number of days of
such Current Lease Year. "BASE AMOUNT" is the amount specified in each Tenant
Lease for such Current Lease Year that must be exceeded by the sales of the
tenant during such Current Lease Year before such tenant will be obligated
thereunder to pay Percentage Rent for such Current Lease Year. By way of example
only, if (i) the Closing Date is July 1, 2004, (ii) the Current Lease Year with
respect to a particular Tenant Lease commences January 1, 2004 and terminates
December 31, 2004, (iii) the sales of the tenant under such Tenant Lease for
such portion of such Current Lease Year occurring prior to and including July 1,
2004 are $600,000, and (iv) the Percentage Rent payable by such tenant for such
Current Lease Year is 2% of such tenant's sales in excess of $1,000,000, then
(x) the Base Amount is $1,000,000, (y) the Allocable Base Amount is $498,630,
and (z) Seller is entitled to $2,027.40 (I.E., 2% of $101,370) of the Percentage
Rent payable by such tenant for such Current Lease Year (subject, however, to
reduction as hereinafter provided). In the event that, under the terms of the
particular Tenant Lease, the tenant is entitled to any offset or credit against
Percentage Rent (including any offset or credit by reason of or with respect to
taxes, common area and mall contributions and tenant improvement costs), then
the Percentage Rent allocated to Seller as aforesaid will be reduced by Seller's
"allocable share" of the aggregate amount of such offsets and credits under each
Tenant Lease for the Current
10
Lease Year with respect thereto. Seller's "ALLOCABLE SHARE" with respect to a
Tenant Lease will be a fraction, the numerator of which is the number of days in
the Current Lease Year under such Tenant Lease occurring prior to the Closing
Date and the denominator of which is the number of days in such Current Lease
Year. Buyer will not be obligated to pay or credit Seller any sum on account of
the proration of Percentage Rent as provided herein unless and until the
Percentage Rent to be prorated will be received by Buyer.
(d) OPERATING EXPENSES. All operating expenses (including
all charges under the service contracts and agreements assumed by Buyer under
the ▇▇▇▇ of Sale, Assignment and Assumption) will be prorated, and as to each
service provider, operating expenses payable or paid to such service provider in
respect to the billing period of such service provider in which the Closing Date
occurs (the "CURRENT BILLING PERIOD"), will be prorated on a per diem basis
based upon the number of days in the Current Billing Period prior to and
excluding the Closing Date (which will be allocated to Seller) and the number of
days in the Current Billing Period including and following the Closing Date
(which will be allocated to Buyer), and assuming that all charges are incurred
uniformly during the Current Billing Period and that all provided services
occurred during the Current Billing Period. If actual bills for the Current
Billing Period are unavailable as of the Closing Date, then such proration will
be made on an estimated basis based upon the most recently issued bills, subject
to readjustment upon receipt of actual bills.
(2) SECURITY DEPOSITS; PREPAID RENTS. Prepaid rentals and other
tenant charges and Additional Rents for periods after the Current Month, and
cash security deposits under Tenant Leases together with interest earned thereon
to which any Tenants are entitled (including any portion thereof which may be
designated as prepaid rent) under Tenant Leases, will be credited against the
Purchase Price, and upon the closing of the transaction contemplated hereby,
Buyer will assume full responsibility for all security deposits to be refunded
to the tenants under the Tenant Leases (to the extent the same are credited to
Buyer and required to be refunded by the terms of such Tenant Leases or
applicable). In the event that any security deposits are in the form of letters
of credit or other financial instruments, Seller will, at Closing, assign its
interest in such letters of credit or financial instruments to Buyer, and,
following Closing, Seller will cooperate with Buyer in order to cause Buyer to
be named as beneficiary under such letters of credit or the holder of such
financial instruments. Seller's interest in letters of credit and other
financial instruments will be assigned to Buyer, and Buyer will not receive a
credit against the Purchase Price for such security deposits.
(3) LEASING COSTS. Buyer will receive a credit at the Closing in
an amount equal to (a) the aggregate amount of the costs ("LEASING COSTS") for
tenant improvements and leasing commissions set forth in EXHIBIT N less (b) the
amount of the tenant improvement costs and leasing commissions incurred and paid
by Seller after the Effective Date for the premises described in EXHIBIT N. In
the event that Seller has incurred but not paid any Leasing Costs, then Buyer
will assume the obligation to pay and will receive a credit for same, and Buyer
will indemnify and hold Seller harmless from any loss or damage resulting from
the failure of Buyer to pay same. In the event that Seller enters into any lease
transaction that has been approved or deemed approved by Buyer
11
for a premises that is not described in EXHIBIT N, Seller will receive a Credit
at the Closing for the tenant improvement costs and leasing commissions paid by
Seller prior to the Closing Date in connection with such lease transaction.
(4) CALCULATION; REPRORATION. Seller will prepare and deliver to
Buyer, or Seller will cause its property manager (the "MANAGER") to prepare and
deliver to the parties no later than five (5) days prior to the Closing Date an
estimated closing statement which will set forth the costs payable under
▇▇▇▇▇▇▇▇▇ ▇▇ and the prorations and credits provided for in this Paragraph 6D
and elsewhere in this Agreement (including the Additional Rents Reconciliation).
Any item that cannot be finally prorated because of the unavailability of
information will be tentatively prorated on the basis of the best data then
available and adjusted when the information is available in accordance with this
subparagraph. Buyer will notify Seller within one (1) business day after its
receipt of such estimated closing statement of any items which Buyer disputes,
and the parties will attempt in good faith to reconcile any differences not
later than one (1) day before the Closing Date. The estimated closing statement
as adjusted as aforesaid and approved in writing by the parties (which will not
be withheld if prepared in accordance with this Agreement) will be referred to
herein as the "CLOSING STATEMENT". If the prorations and credits made under the
Closing Statement will prove to be incorrect or incomplete for any reason, then
either party will be entitled to an adjustment to correct the same; provided,
however, that any adjustment will be made, if at all, within six (6) months
after the Closing Date, and if a party fails to request an adjustment to the
Closing Statement by a written notice delivered to the other party within the
applicable period set forth above (such notice to specify in reasonable detail
the items within the Closing Statement that such party desires to adjust and the
reasons for such adjustment), then the prorations and credits set forth in the
Closing Statement will be binding and conclusive against such party.
(5) ITEMS NOT PRORATED. Seller and Buyer agree that (a) none of
the insurance policies relating to the Property will be assigned to Buyer and
Buyer will be responsible for arranging for its own insurance as of the Closing
Date; (b) utilities, including telephone, electricity, water and gas, will be
read on the Closing Date and Buyer will be responsible for all the necessary
actions needed to arrange for utilities to be transferred to the name of Buyer
on the Closing Date, including the posting of any required deposits (it being
understood, however, that Seller will be entitled to a credit at the Closing for
any utility deposits which it or its predecessors have made prior to the Closing
Date, to the extent the same are credited to Buyer at Closing, and Seller will
be entitled to recover and retain from the providers of such utilities any
refunds or overpayments to the extent applicable to the period prior to and
including the Closing Date, and any utility deposits for which it does not
receive a credit hereunder); and (c) on the Closing Date, the Property will not
be subject to any financing obtained by Seller or its predecessors. Accordingly,
there will be no prorations for insurance, utilities (except to the extent
provided above for utility deposits), payroll or debt service. In the event a
meter reading is unavailable for any particular utility, such utility will be
prorated in the manner provided in subparagraph (1)(d) above.
(6) INDEMNIFICATION. Buyer will indemnify, protect, defend and
hold Seller harmless from and against any Claim in any way arising from the
matters for
12
which Buyer receives a credit or otherwise assumes responsibility pursuant to
this Paragraph 6D or the ▇▇▇▇ of Sale, Assignment and Assumption.
(7) SURVIVAL. This Paragraph 6D will survive the Closing Date for
a period of six (6) months.
7. DESTRUCTION/CONDEMNATION OF PROPERTY.
A. In the event that all or any portion of the Plaza 205 Land or the
Plaza 205 Improvements are damaged or destroyed by any casualty or by a taking
or condemnation under the provisions of eminent domain law after the Effective
Date but prior to the Closing Date, Seller will give Buyer prompt written notice
of the same ("CASUALTY/CONDEMNATION NOTICE"), but Seller will have no obligation
to repair or replace any damage or destruction caused by the foregoing. Seller
will, upon consummation of the transaction herein provided, assign to Buyer all
claims of Seller under or pursuant to any casualty insurance coverage, or under
the provisions of eminent domain law, as applicable, and all proceeds from any
such casualty insurance or condemnation awards received by Seller on account of
any such casualty or condemnation, as the case may be (to the extent the same
have not been applied by Seller prior to the Closing Date to repair the
resulting damage), and there will be no reduction of the Purchase Price (except
that in connection with a casualty covered by insurance, Buyer will be credited
with the lesser of the remaining cost to repair the damage or destruction caused
by such casualty or the amount of the deductible under Seller's casualty
insurance policy [except to the extent such deductible was expended by Seller to
repair the resulting damage]). In the event the cost of repair or restoration of
the damage to such improvements on account of such casualty or condemnation will
exceed an amount equal to One Million Fifty Thousand Dollars ($1,050,000),
either party may, at its option, terminate this Agreement by written notice to
the other, given within five (5) business days after the delivery of the
Casualty/Condemnation Notice (and if the Closing Date falls within such five (5)
business day period, the Closing Date will be extended until the day after the
expiration of such five (5) business day period).
B. In the event that all or any portion of the Mall 205 Land or the Mall
205 Improvements are damaged or destroyed by any casualty or by a taking or
condemnation under the provisions of eminent domain law after the Effective Date
but prior to the Closing Date, Seller will give Buyer prompt written notice of
the same ("CASUALTY/CONDEMNATION NOTICE"), but Seller will have no obligation to
repair or replace any damage or destruction caused by the foregoing. Seller
will, upon consummation of the transaction herein provided, assign to Buyer all
claims of Seller under or pursuant to any casualty insurance coverage, or under
the provisions of eminent domain law, as applicable, and all proceeds from any
such casualty insurance or condemnation awards received by Seller on account of
any such casualty or condemnation, as the case may be (to the extent the same
have not been applied by Seller prior to the Closing Date to repair the
resulting damage), and there will be no reduction of the Purchase Price (except
that in connection with a casualty covered by insurance, Buyer will be credited
with the lesser of the remaining cost to repair the damage or destruction caused
by such casualty or the amount of the deductible under Seller's casualty
insurance policy [except to the extent such deductible was expended
13
by Seller to repair the resulting damage]). In the event the cost of repair or
restoration of the damage to such improvements on account of such casualty or
condemnation will exceed an amount equal to Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000), either party may, at its option, terminate this
Agreement by written notice to the other, given within five (5) business days
after the delivery of the Casualty/Condemnation Notice (and if the Closing Date
falls within such five (5) business day period, the Closing Date will be
extended until the day after the expiration of such five (5) business day
period).
8. REPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.
A. REPRESENTATIONS AND WARRANTIES OF SELLER. Each of Plaza ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and PM 205 hereby represents and
warrants to Buyer, with respect to the Land and Improvements owned by it, as
follows:
(1) AUTHORITY. As of the date hereof and as of the Closing Date,
Seller has all requisite corporate power and authority to execute and deliver,
and to perform all of its obligations under, this Agreement.
(2) DUE EXECUTION. As of the date hereof and as of the Closing
Date, the execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action on the part of Seller.
(3) ENFORCEABILITY. As of the date hereof and as of the Closing
Date, this Agreement constitutes a legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights and general equitable principles.
(4) NO BANKRUPTCY OR DISSOLUTION. As of the date hereof and as
of the Closing Date, no "Bankruptcy/Dissolution Event" (as defined below) has
occurred with respect to Seller. As used herein, a "BANKRUPTCY/DISSOLUTION
EVENT" means any of the following: (a) the commencement of a case under Title 11
of the U.S. Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or other similar law; (b) the
appointment of a trustee or receiver of any property interest; (c) an assignment
for the benefit of creditors; (d) an attachment, execution or other judicial
seizure of a substantial property interest; (e) the taking of, failure to take,
or submission to any action indicating an inability to meet its financial
obligations as they accrue; or (f) a dissolution or liquidation, death or
incapacity.
(5) DEFAULTS UNDER TENANT LEASES. As of the date hereof and as
of the Closing Date, except for any new leases which may have been approved or
deemed approved by Buyer, the Tenant Leases described in the Rent Roll attached
as EXHIBIT J hereto constitute all of the leases and occupancy agreements
entered into by Seller with respect to the Property. To the best knowledge of
Seller, except as may be set forth in EXHIBIT J attached hereto, Seller has not
received any written notice of a material default under any Tenant Lease that
remains uncured. To the best knowledge of
14
Seller, except as may be set forth in EXHIBIT J attached hereto, all brokerage
commissions with respect to Tenant Leases have been paid in full or will have
been paid in full prior to the Closing Date.
(6) LITIGATION. To the best knowledge of Seller, except as may
be set forth in EXHIBIT K attached hereto, as of the date hereof, Seller has
received no written notice of any pending action, litigation, condemnation or
other proceeding against the Property or against Seller with respect to the
Property. To the best knowledge of Seller, except as may be set forth in EXHIBIT
K attached hereto, as of the date hereof, there is no pending eminent domain
proceeding with respect to all or any portion of the Land and the Improvements.
(7) COMPLIANCE. To the best knowledge of Seller, except as may
be set forth in EXHIBIT K attached hereto, as of the date hereof, Seller has
received no written notice from any governmental authority having jurisdiction
over the Property to the effect that the Property is not in compliance with
applicable laws and ordinances. Without limitation on the foregoing, Seller has
not received any written notice that the Property is not in compliance with
applicable zoning laws.
(8) SERVICE CONTRACTS. To the best knowledge of Seller, as of
the date hereof and as of the Closing Date, the Service Contracts identified in
EXHIBIT L attached hereto constitute all of the written service contracts and
equipment leases that are presently in effect with respect to the Property. To
the best knowledge of Seller, except as may be set forth in EXHIBIT L attached
hereto, as of the date hereof and as of the Closing Date, Seller has not
received any written notice of a material default under any Service Contract
that remains uncured.
(9) KNOWLEDGE. As used in this Agreement, the phrase "the best
knowledge of Seller" or any similar phrase means the present actual knowledge of
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, without any duty to make inquiry and excluding
any constructive or imputed knowledge; provided, however, that nothing in this
Agreement will be deemed to create or impose any personal liability of any kind
on ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇.
(10) DEVELOPMENT AGREEMENTS. Seller has not entered into any
unrecorded development, public financing, public improvement or other similar
agreements under which there are any obligations remaining to be performed as of
the Closing Date or which will be binding upon Buyer or the Property from and
after the Closing Date.
B. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents
and warrants the following to Seller:
(1) AUTHORITY. Buyer has all requisite power and authority to
execute and deliver, and to perform all its obligations under this Agreement.
(2) DUE EXECUTION. The execution, delivery and performance of
this Agreement has been duly authorized by all necessary action on the part of
Buyer and
15
does not and will not (a) require any consent or approval that has not been
obtained or (b) violate any provision of Buyer's organizational documents.
(3) ENFORCEABILITY. This Agreement constitutes a legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and general equitable principles.
(4) NO BANKRUPTCY/DISSOLUTION EVENT. No Bankruptcy/Dissolution
Event has occurred with respect to Buyer, or if Buyer is a partnership, any of
the general partners in Buyer. Buyer has sufficient capital or net worth to meet
its obligations, including payment of the Purchase Price, under this Agreement.
C. SURVIVAL. Any cause of action with respect to a breach of the
representations and warranties set forth in this subparagraphs A and B above
will survive for a period of three (3) months from the Closing Date, at which
time such representations and warranties (and any cause of action resulting from
a breach thereof not then in litigation) will terminate.
D. KNOWLEDGE AS A DEFENSE. Seller will have no liability with
respect to a breach of the representations and warranties set forth in
subparagraph A above to the extent that Buyer proceeds with the closing of the
transaction contemplated hereby with present, actual knowledge (and not imputed
or constructive knowledge) of such breach prior to the Closing Date.
E. CERTAIN LIMITATIONS. Notwithstanding anything to the contrary in
this Agreement and without limitation upon the limitations elsewhere in this
Agreement: (1) neither Seller nor Buyer ("BENEFITING PARTY") will make a Claim
against the other (the "NON-BENEFITING PARTY") following Closing for damages for
breach or default of any representation or warranty under this Paragraph 8 or
any other breach hereof (except for a breach or default under Paragraph 5 or 11A
hereof), unless the amount of such Claim, in the Benefiting Party's reasonable
opinion, exceeds an amount equal to Fifty Thousand Dollars ($50,000); and (2)
under no circumstances will Seller be liable to Buyer following Closing on
account of this Agreement, any covenant, representation, warranty, or
indemnification obligation herein, any document executed in connection with this
Agreement or any transaction or matter contemplated hereby, in an aggregate
amount in excess of an amount equal to One Million Dollars ($1,000,000). Nothing
in the foregoing provisions of this Paragraph 8E is intended to limit the effect
of the remedies provided for in Paragraph 3D with respect to a breach of this
Agreement prior to the Closing. In the event of a breach of this Agreement, the
Benefiting Party will not be entitled to recover special or consequential
damages.
F. CERTAIN INTERIM COVENANTS OF SELLER. Until the Closing Date or
the sooner termination of this Agreement:
(1) PROPERTY MAINTENANCE. Seller will maintain the Property in
the same manner as prior hereto pursuant to its normal course of business (such
16
maintenance obligation not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or
eminent domain or other events beyond the control of Seller, including changes
in laws, rules, ordinances and regulations.
(2) SERVICE CONTRACTS AND AGREEMENTS. Seller will not enter into
any additional service contracts or other similar agreements affecting the
Property without the prior consent of Buyer (not to be unreasonably withheld);
provided, however, that Seller may enter into service contracts and agreements
which are cancelable on 30 days notice without penalty without the consent of
Buyer.
(3) TENANT LEASES. Seller will continue to offer the Property
for lease in the same manner as prior hereto pursuant to its normal course of
business and will keep Buyer reasonably informed as to the status of leasing
prior to the Closing Date. If this Agreement is in effect after the expiration
of the Due Diligence Period, Seller will not enter into any new Tenant Leases or
material modifications of existing Tenant Leases thereafter that have not been
approved by Buyer. In no event will Seller have any obligation to enter into any
new Tenant Lease or modify any existing Tenant Lease unless, subject to the
provisions of Paragraph 11R, Buyer will agree to pay or reimburse Seller on the
Closing Date for all leasing costs, including tenant improvement costs and
allowances, leasing commissions and attorneys' fees, in connection with any
Tenant Lease or modification to an existing Tenant Lease which is entered into
after the date hereof (and Buyer's agreement to pay or reimburse such amounts
will not be unreasonably withheld).
(4) APPROVAL STANDARD. Any approvals by Buyer under this
Paragraph 8F will not be unreasonably withheld. Without limitation on the
foregoing, if Seller delivers a written request to Buyer for Buyer's approval of
any matter for which Buyer's approval is required under this Paragraph 8F (an
"APPROVAL REQUEST"), and Buyer fails to deliver to Seller its written
disapproval of such Approval Request within two (2) business days after its
receipt of such Approval Request, then Buyer will be deemed to have approved the
matter such is the subject of such Approval Request.
(5) TENANT ESTOPPELS. Seller will use good faith efforts to
obtain the Target Estoppel (defined in Paragraph 10B(5)) and the estoppel
certificates ("TENANT ESTOPPEL CERTIFICATES") from the tenants under Tenant
Leases in (a) the forms attached to this Agreement as EXHIBIT M-1 AND M-2,
provided, however, such forms of Tenant Estoppel Certificates and the Target
Estoppel will be modified to contain the name and address of Buyer, (b) in the
form required to be provided by such tenant and REA pursuant to its Tenant Lease
or the Target REA (as hereinafter defined), or (c) if the Tenant is the United
States of America (including, without limitation, the United States Postal
Service), the State of Oregon or any other governmental entity, the form of
standard estoppel letter or statement of lease used by such entity or agency
(collectively, the "REQUIRED FORMS OF ESTOPPEL"). In no event will the receipt
of the Target Estoppel or Tenant Estoppel Certificates constitute a condition to
Buyer's obligations under this Agreement, other than as expressly provided in
Paragraphs 10B(3)(a) and 10B(5)). Seller will be deemed to have made "good faith
efforts" if Target Corporation has in fact delivered the Target Estoppel or a
tenant has, in fact, delivered the requested Tenant
17
Estoppel Certificate or if Seller (a) delivers to Target Corporation the Target
Estoppel and to all of the tenants under Tenant Leases the Tenant Estoppel
Certificates in the Required Forms of Estoppel, within fifteen (15) days after
the expiration of the Due Diligence Period, and (b) will have made three (3)
telephone calls to the representative of Target Corporation and each tenant
requesting delivery of same.
(6) DISCLOSURE COOPERATION. If Buyer assigns its interest in
this Agreement to a publicly registered company (the "REGISTERED COMPANY") that
acquires title to the Property at Closing, and the Registered Company must file
certain information with the United States Securities and Exchange Commission
("SEC") that relates to the period of time prior to Closing, then Seller will,
at the sole cost and expense of Buyer, reasonably cooperate to provide the
Registered Company with such information as may, in the opinion of counsel to
the Registered Company, be necessary for the Registered Company to make the
required filings with the SEC.
9. DISCLAIMER AND RELEASE. AS AN ESSENTIAL INDUCEMENT TO SELLER
TO ENTER INTO THIS AGREEMENT, BUYER ACKNOWLEDGES, UNDERSTANDS AND AGREES AS OF
THE DATE HEREOF AND AS OF THE CLOSING DATE AS FOLLOWS:
A. DISCLAIMER.
(1) AS-IS, WHERE-IS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
PARAGRAPH 8A OR IN THE DEEDS, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE
MADE ON AN "AS IS, WHERE IS" BASIS AND SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES
OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE OF, AS TO, CONCERNING OR WITH RESPECT TO THE
PROPERTY OR ANY OTHER MATTER WHATSOEVER.
(2) SOPHISTICATION OF BUYER. BUYER IS A SOPHISTICATED BUYER WHO
IS FAMILIAR WITH THE OWNERSHIP AND OPERATION OF REAL ESTATE PROJECTS SIMILAR TO
THE PROPERTY AND THAT BUYER HAS OR WILL HAVE ADEQUATE OPPORTUNITY TO COMPLETE
ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE
PROPERTY HEREUNDER IT DEEMS NECESSARY, AND WILL ACQUIRE THE SAME SOLELY ON THE
BASIS OF SUCH EXAMINATIONS AND THE TITLE INSURANCE PROTECTION AFFORDED BY THE
OWNER'S POLICY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER
(OTHER THAN AS EXPRESSLY PROVIDED IN PARAGRAPH 8A OR IN THE DEEDS, THE CLOSING
CERTIFICATE OR THE ▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION [ADD ROOF WARRANTY
ASSIGNMENT IF APPLICABLE].
(3) DUE DILIGENCE MATERIALS. ANY INFORMATION PROVIDED OR TO BE
PROVIDED WITH RESPECT TO THE PROPERTY IS SOLELY FOR BUYER'S CONVENIENCE AND WAS
OR WILL BE OBTAINED FROM A
18
VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY
OR COMPLETENESS OF SUCH INFORMATION (EXCEPT TO THE EXTENT PROVIDED IN PARAGRAPH
8A AND IN THE DEEDS, THE CLOSING CERTIFICATE OR THE ▇▇▇▇ OF SALE, ASSIGNMENT AND
ASSUMPTION [ADD ROOF WARRANTY ASSIGNMENT IF APPLICABLE]. SELLER WILL NOT BE
LIABLE FOR ANY NEGLIGENT MISREPRESENTATION OR ANY FAILURE TO INVESTIGATE THE
PROPERTY NOR WILL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR
OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED
BY SELLER, MANAGER, OR BY ANY REAL ESTATE BROKER, AGENT, REPRESENTATIVE,
AFFILIATE, EMPLOYEE, SERVANT OR OTHER PERSON OR ENTITY ACTING ON SELLER'S BEHALF
(COLLECTIVELY, "SELLER RELATED PARTIES").
B. RELEASE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED TO THE CONTRARY
IN THIS AGREEMENT, BUYER RELEASES SELLER AND ALL SELLER RELATED PARTIES FROM ALL
CLAIMS WHICH BUYER OR ANY PARTY RELATED TO OR AFFILIATED WITH BUYER (A "BUYER
RELATED PARTY") HAS OR MAY HAVE ARISING FROM OR RELATED TO ANY MATTER OR THING
RELATED TO OR IN CONNECTION WITH THE PROPERTY INCLUDING THE DOCUMENTS AND
INFORMATION REFERRED TO HEREIN, THE TENANT LEASES AND THE TENANTS THEREUNDER,
ANY CONSTRUCTION DEFECTS, ERRORS OR OMISSIONS IN THE DESIGN OR CONSTRUCTION AND
ANY ENVIRONMENTAL CONDITIONS, AND BUYER WILL NOT LOOK TO ANY SELLER RELATED
PARTIES IN CONNECTION WITH THE FOREGOING FOR ANY REDRESS OR RELIEF, EXCEPT FOR
THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN PARAGRAPH 8 AND THOSE
OBLIGATIONS OF SELLER UNDER THIS AGREEMENT WHICH ARE EXPRESSLY INTENDED TO
SURVIVE THE CLOSING. THIS RELEASE WILL BE GIVEN FULL FORCE AND EFFECT ACCORDING
TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS, INCLUDING THOSE RELATING TO
UNKNOWN AND UNSUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THE FOREGOING
PROVISIONS OF THIS PARAGRAPH 9B WILL NOT LIMIT, HOWEVER, SELLER'S EXPRESS
OBLIGATIONS UNDER THIS AGREEMENT AND THE DOCUMENTS EXECUTED IN CONNECTION
HEREWITH.
IN ADDITION, BUYER WAIVES AND RELEASES SELLER AND ALL SELLER
RELATED PARTIES FROM ANY PRESENT OR FUTURE CLAIMS BY BUYER OR ANY PERSON OR
ENTITY AFFILIATED, DIRECTLY OR INDIRECTLY, WITH BUYER (EXPRESSLY EXCLUDING
CLAIMS MADE BY ANY THIRD PARTY NOT AFFILIATED WITH BUYER AND ANY CLAIM MADE BY
ANY GOVERNMENTAL AGENCY) ARISING FROM OR RELATING TO THE PRESENCE OR ALLEGED
PRESENCE OF HARMFUL OR TOXIC SUBSTANCES IN, ON, UNDER OR ABOUT THE PROPERTY
INCLUDING, WITHOUT LIMITATION, ANY CLAIMS UNDER OR ON ACCOUNT OF (I) THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS
THE SAME MAY HAVE BEEN OR MAY BE AMENDED FROM TIME TO TIME, AND SIMILAR STATE
19
STATUTES, AND ANY REGULATIONS PROMULGATED THEREUNDER, (II) ANY OTHER FEDERAL,
STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, NOW OR HEREAFTER IN EFFECT,
THAT DEALS WITH OR OTHERWISE IN ANY MANNER RELATES TO, ENVIRONMENTAL MATTERS OF
ANY KIND, OR (III) THIS AGREEMENT OR THE COMMON LAW. THE TERMS AND PROVISIONS OF
THIS PARAGRAPH WILL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
C. SURVIVAL. THIS PARAGRAPH 9 WILL SURVIVE THE TERMINATION OF THIS
AGREEMENT OR THE CLOSING DATE AND WILL NOT BE DEEMED TO HAVE MERGED INTO ANY OF
THE DOCUMENTS EXECUTED OR DELIVERED AT CLOSING. TO THE EXTENT REQUIRED TO BE
OPERATIVE, THE DISCLAIMERS OR WARRANTIES CONTAINED HEREIN ARE "CONSPICUOUS"
DISCLAIMERS FOR PURPOSES OF ANY APPLICABLE LAW, RULE, REGULATION OR ORDER.
--------------------
INITIALS OF BUYER
10. CONDITIONS TO CLOSING.
A. SELLER'S CONDITIONS TO CLOSING. In addition to the conditions
provided in other provisions of this Agreement, Seller's obligations to perform
its undertakings provided in this Agreement (including its obligation to sell
the Property) are conditioned on the following:
(1) PERFORMANCE BY BUYER. The due performance by Buyer of each
and every material undertaking and agreement to be performed by it hereunder
(including the delivery to Seller of the items specified to be delivered by
Buyer in Paragraph 6 hereof).
(2) NO BANKRUPTCY OR DISSOLUTION. That at no time on or before
the Closing Date will any Bankruptcy/Dissolution Event have occurred with
respect to Buyer, and if Buyer is a partnership, any general partners of Buyer.
B. BUYER'S CONDITIONS TO CLOSING. In addition to the conditions
provided in other provisions of this Agreement, Buyer's obligations to perform
its undertakings provided in this Agreement (including its obligation to
purchase the Property) are conditioned on the following:
(1) PERFORMANCE BY SELLER. The due performance by Seller of each
and every material undertaking and agreement to be performed by it hereunder
(including the delivery to Buyer of the items specified to be delivered by
Seller in Paragraph 6) and the material truth of each representation and
warranty made by Seller in this Agreement as of the date such representation
must be true and correct (I.E., on the date of this Agreement or on the Closing
Date or on both such dates as expressly provided herein). In the event a
material change of circumstances occurs through no fault
20
of Seller on or prior to the Closing Date which causes any of Seller's
representations or warranties set forth in subparagraph 8A above to become
materially untrue (a "CHANGE OF CIRCUMSTANCES"), Seller will have a period of
thirty (30) days from the date of the discovery of such change of circumstances
to cure such untrue fact or condition (and the Closing Date will be extended to
accommodate such cure period). In the event that Seller does not cure such
Change of Circumstances within such thirty (30) day period, Buyer will have the
right, as Buyer's sole and exclusive remedies hereunder for such failure, either
(a) to terminate this Agreement by written notice to Seller, in which case, this
Agreement will be null and void and of no further force or effect and the
parties hereto will have no further obligations to the other and the Deposit
will immediately be refunded to Buyer, or (b) to waive the foregoing right of
termination and all other rights and remedies on account of such breach and to
close the transaction contemplated by this Agreement.
(2) NO BANKRUPTCY OR DISSOLUTION. That at no time on or before
the Closing Date will a Bankruptcy/Dissolution Event have occurred with respect
to Seller.
(3) TENANT ESTOPPEL CERTIFICATES.
(a) Subject to the provisions of sub-paragraph (b) below, Buyer
will have received, not less than one (1) business day prior to the Closing
Date, Tenant Estoppel Certificates from tenants of the Property occupying, in
the aggregate, not less than ninety percent (90%) of the gross leasable area of
the Improvements occupied by tenants (and which will include Tenant Estoppel
Certificates from (i) with respect to the Mall 205 Tenant Leases, Home Depot,
24-Hour Fitness, Famous Footwear and Bed, Bath and Beyond; and (ii) with respect
to the Plaza ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Postal
Service, ▇▇▇▇▇ Fabrics, Dollar Tree, Old Country Buffet, Providence Health Care
and Oregon State Police [each, an "ANCHOR TENANT"]). Notwithstanding anything to
the contrary herein, if, on or before the Closing Date, the condition set forth
in this Paragraph 10B(3) is not satisfied (or waived by Buyer), then the Closing
Date will be extended on a day to day basis until such condition is in fact
satisfied; provided, however, that if the Closing Date is hereby extended for
more than thirty (30) days, Buyer and Seller will have the right, by written
notice delivered to the other, to terminate this Agreement, in which event this
Agreement will terminate, the Escrow Deposit will be promptly returned to Buyer
and no party hereto will have any further obligations in connection herewith
except under those provisions that expressly survive a termination of this
Agreement.
(b) If Buyer has not received Tenant Estoppel Certificates from
tenants of the Property occupying, in the aggregate, ninety percent (90%) or
more of the gross leasable area of the Improvements occupied by tenants,
including each Anchor Tenant, Seller will have the right, but not the
obligation, as determined in Seller's sole discretion, to deliver to Buyer
Seller's own written certificate or certificates (each, a "SELLER CERTIFICATE,"
and, collectively, "SELLER CERTIFICATES") as may be necessary to deliver to
Buyer a combination of Tenant Estoppel Certificates and Seller Certificates for
tenants of the Property occupying, in the aggregate, at least ninety percent
(90%) of the gross leasable area of the Improvements occupied by tenants. Each
Seller Certificate will be in the appropriate form of the Tenant Estoppel
Certificate for a Tenant Lease, provided, however, that any statements in a
Seller Certificate that are not determinable upon a
21
reading of the applicable Tenant Lease will be based upon Seller's actual
knowledge. If Seller delivers a Seller Certificate to Buyer, and thereafter
Buyer receives a duly executed Tenant Estoppel Certificate for the Tenant Lease,
then it will supersede the Seller Certificate as to all matters addressed in the
Tenant Estoppel Certificate, and Seller will have no further liability under the
Seller Certificate with respect to such matters. If Seller delivers a Seller
Certificate to Buyer with respect to a Tenant Lease, Seller will indemnify and
defend Buyer from and against all claims, liabilities and losses that Buyer
incurs as a result of any material misrepresentation of any matter contained in
the Seller Certificate, except to the extent such Seller Certificate has been
superseded by a Tenant Estoppel Certificate as provided above. Seller's
obligations under any Seller Certificate will be subject to the provisions of
this Agreement relating to limitation of liability and will survive the Closing
of the transaction contemplated by this Agreement for the period set forth in
▇▇▇▇▇▇▇▇▇ ▇▇ hereof. Notwithstanding the foregoing, Seller shall not be required
to deliver, and Buyer shall not be required to accept, a Seller Certificate from
an Anchor Tenant leasing more than 15,000 rentable square feet of space.
(4) MANAGEMENT AND LEASING AGREEMENTS. Seller will terminate all
property management and leasing agreements pertaining to the Property as of the
Closing Date.
(5) TARGET ESTOPPEL. Buyer will have received, on or prior to
the Closing Date, an estoppel certificate (the "TARGET ESTOPPEL") from Target
Corporation, in the form attached hereto as EXHIBIT M-2 relating to the
construction, operating and reciprocal easement agreement (the "TARGET REA")
pertaining to the use by Target Corporation of a portion of the Mall 205 Land
and land adjacent to the Mall 205 Land.
11. MISCELLANEOUS.
A. BROKERAGE ISSUES.
(1) GENERALLY. Except as provided in subparagraph (2) below,
Seller represents and warrants to Buyer, and Buyer represents and warrants to
Seller, that no broker or finder has been engaged by it, respectively, in
connection with any of the transactions contemplated by this Agreement or to its
knowledge is in any way connected with any of such transactions. In the event of
a claim for broker's or finder's fee or commissions in connection herewith, then
Seller will indemnify, protect, defend and hold Buyer harmless from and against
the same if it will be based upon any statement or agreement alleged to have
been made by Seller, and Buyer will indemnify, protect, defend and hold Seller
harmless from and against the same if it will be based upon any statement or
agreement alleged to have been made by Buyer.
(2) BROKER'S COMMISSION. CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware
corporation ("BROKER") has been engaged in connection with the transaction
contemplated by this Agreement, and without limitation on the foregoing
provisions of this Paragraph, if and only if the transaction contemplated hereby
will close in accordance with the terms of this Agreement, Seller will pay
Broker the commission ("COMMISSION") pursuant to a separate agreement between
Seller and Broker.
22
B. LIMITATION OF LIABILITY. No present or future partner, member,
manager, director, officer, shareholder, employee, trustee, advisor, affiliate
or agent of or in Seller or any affiliate of Seller will have any personal
liability, directly or indirectly, under or in connection with this Agreement or
any agreement made or entered into under or in connection with the provisions of
this Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors and
assigns and, without limitation, all other persons and entities, will look
solely to Seller's assets for the payment of any claim or for any performance,
and Buyer hereby waives any and all such personal liability. The limitations of
liability contained in this Paragraph will survive the termination of this
Agreement or the Closing Date, as applicable, and are in addition to, and not in
limitation of, any limitation on liability applicable to Seller provided
elsewhere in this Agreement or by law or by any other contract, agreement or
instrument.
C. SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer its
rights or obligations under this Agreement (or make an offer or enter into
negotiations to do so) without the prior written consent of Seller (in which
event such transferee will assume in writing all of the transferor's obligations
hereunder, but such transferor will not be released from its obligations
hereunder); provided, however, Buyer may assign its interest in this Agreement
to a single-purpose bankruptcy remote entity which is controlled by Buyer (in
which event such transferee will assume in writing all of the transferor's
obligations hereunder). As used herein, "controlled by Buyer" with respect to an
entity means that Buyer: (1) has the sole ability to direct the management,
policies and operation of such entity, directly or indirectly, through voting
securities or otherwise; and (2) Buyer owns more than fifty percent (50%) of the
direct or indirect ownership interests in such entity. Any change in control or
majority ownership of Buyer constitutes an assignment for purposes of this
subparagraph. No consent given by Seller to any transfer or assignment of
Buyer's rights or obligations hereunder will be construed as a consent to any
other transfer or assignment of Buyer's rights or obligations hereunder. In
addition, Buyer will not re-sell the Property or assign its rights or
obligations under this Agreement (or make an offer or enter into negotiations to
do so) through a "double escrow" or other similar mechanism without Seller's
prior written consent. No transfer or assignment in violation of the provisions
hereof will be valid or enforceable. Subject to the foregoing, this Agreement
and the terms and provisions hereof will inure to the benefit of and will be
binding upon the successors and assigns of the parties.
D. NOTICES. Any notice which a party is required or may desire to
give the other party will be in writing and may be delivered (1) personally, (2)
by Federal Express or other reputable courier service regularly providing
evidence of delivery (with charges paid by the party sending the notice); or (3)
by telecopy, provided that such telecopy will be immediately followed by
delivery of such notice pursuant to clause (1) or (2) above. Any such notice
will be addressed as follows (subject to the right of a party to designate a
different address for itself by notice similarly given):
23
TO BUYER:
Inland Real Estate Acquisitions, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
The Inland Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇
TO SELLER:
Mall 205, L.L.C.
Portland Plaza ▇▇▇, ▇.▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
▇.▇. ▇▇▇▇ ▇▇▇., ▇.▇.▇.
▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇., L.L.C.
PM 205 Parcel, L.L.C.
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WITH COPY TO:
c/o Oaktree Capital Management, LLC
28th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
24
WITH COPY TO:
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
WITH COPY TO:
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices (EJML/DGS)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TO ESCROW HOLDER
Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TO TITLE COMPANY:
Chicago Title Insurance Company of Oregon
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice so given by mail will be deemed to have been given as of the date of
delivery (whether accepted or refused) established by the overnight carrier's
proof of delivery. Any such notice not so given will be deemed given upon actual
receipt of the same by the party to whom the same is to be given. Notices may be
given by facsimile transmission and will be deemed given upon the actual receipt
of the same by the individual to which they are addressed, and will be promptly
followed by a hard copy notice by mail as provided above.
25
E. LEGAL COSTS. In the event any action be instituted by a party to
enforce this Agreement, the prevailing party in such action (as determined by
the court, agency or other authority before which such suit or proceeding is
commenced), will be entitled to such reasonable attorneys' fees, costs and
expenses as may be fixed by the decision maker. The foregoing includes, but is
not limited to, reasonable attorneys' fees, expenses and costs of investigation
incurred in (1) appellate proceedings; (2) in any post-judgement proceedings to
collect or enforce the judgement; (3) establishing the right to indemnification;
and (4) any action or participation in, or in connection with, any case or
proceeding under Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States
Code Sections 101 ET SEQ.), or any successor statutes. This provision is
separate and several and will survive the consummation of the transaction
contemplated by Agreement or the earlier termination of this Agreement.
F. CONFIDENTIALITY. The terms of the transfers contemplated in this
Agreement, including the Purchase Price and all other financial terms, as well
as the information discovered by Buyer and its agents in connection with its due
diligence investigation of the Property will remain confidential and will not be
disclosed by either party hereto without the written consent of the other except
(1) to such party's directors, officers, partners, members, employees, legal
counsel, accountants, engineers, architects, financial advisors and similar
professionals and consultants to the extent such party deems it necessary or
appropriate in connection with the transaction contemplated hereunder (and such
party will inform each of the foregoing parties of such party's obligations
under this Paragraph and will secure the agreement of such parties to be bound
by the terms hereof); or (2) as otherwise required by law or regulation. Each
party will indemnify, defend and hold the other party harmless from and against
any Claims arising from a breach by it or any of its affiliated entities of this
Paragraph. The restrictions in this Paragraph will survive a termination of this
Agreement but will terminate upon the purchase of the Property by Buyer.
G. FURTHER INSTRUMENTS. Each party will, whenever and as often as it
will be requested so to do by the other, cause to be executed, acknowledged or
delivered any and all such further instruments and documents as may be necessary
or proper, in the reasonable opinion of the requesting party, in order to carry
out the intent and purpose of this Agreement.
H. MATTERS OF CONSTRUCTION.
(1) INCORPORATION OF EXHIBITS. All exhibits attached and
referred to in this Agreement are hereby incorporated herein as fully set forth
in (and will be deemed to be a part of) this Agreement.
(2) ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters except the Escrow Agreement.
(3) TIME OF THE ESSENCE. Subject to subparagraph (4) below, time
is of the essence of this Agreement.
26
(4) NON-BUSINESS DAYS. Whenever action must be taken (including
the giving of notice or the delivery of documents) under this Agreement during a
certain period of time (or by a particular date) that ends (or occurs) on a
non-business day, then such period (or date) will be extended until the
immediately following business day. As used herein, "BUSINESS DAY" means any day
other than a Saturday, Sunday or federal or Illinois state holiday.
(5) SEVERABILITY. If any term or provision of this Agreement or
the application thereof to any person or circumstance will, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, will not be affected thereby, and each such
term and provision of this Agreement will be valid and be enforced to the
fullest extent permitted by law.
(6) INTERPRETATION. Words used in the singular will include the
plural, and vice-versa, and any gender will be deemed to include the other.
Whenever the words "including", "include" or "includes" are used in this
Agreement, they should be interpreted in a non-exclusive manner. The captions
and headings of the Paragraphs of this Agreement are for convenience of
reference only, and will not be deemed to define or limit the provisions hereof.
Except as otherwise indicated, all Exhibit and Paragraph references in this
Agreement will be deemed to refer to the Exhibits and Paragraphs in this
Agreement. Each party acknowledges and agrees that this Agreement (a) has been
reviewed by it and its counsel; (b) is the product of negotiations between the
parties, and (c) will not be deemed prepared or drafted by any one party. In the
event of any dispute between the parties concerning this Agreement, the parties
agree that any ambiguity in the language of the Agreement is to not to be
resolved against Seller or Buyer, but will be given a reasonable interpretation
in accordance with the plain meaning of the terms of this Agreement and the
intent of the parties as manifested hereby.
(7) NO WAIVER. Waiver by one party of the performance of any
covenant, condition or promise of the other party will not invalidate this
Agreement, nor will it be deemed to be a waiver by such party of any other
breach by such other party (whether preceding or succeeding and whether or not
of the same or similar nature). No failure or delay by one party to exercise any
right it may have by reason of the default of the other party will operate as a
waiver of default or modification of this Agreement or will prevent the exercise
of any right by such party while the other party continues to be so in default.
(8) CONSENTS AND APPROVALS. Except as otherwise expressly
provided herein, any approval or consent provided to be given by a party
hereunder may be given or withheld in the absolute discretion of such party.
(9) GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF OREGON (WITHOUT REGARD TO
CONFLICTS OF LAW).
(10) THIRD PARTY BENEFICIARIES. Except as otherwise expressly
provided in this Agreement, Seller and Buyer do not intend by any provision of
this
27
Agreement to confer any right, remedy or benefit upon any third party (express
or implied), and no third party will be entitled to enforce or otherwise will
acquire any right, remedy or benefit by reason of any provision of this
Agreement.
(11) AMENDMENTS. This Agreement may be amended by written
agreement of amendment executed by all parties, but not otherwise.
(12) SURVIVAL. Unless otherwise expressly provided for in this
Agreement, the representations, warranties, covenants and conditions of the
parties set forth in this Agreement will not survive the consummation of the
transaction contemplated by this Agreement and the delivery and recordation of
the Deeds.
I. BUYER'S DELIVERY OF CERTAIN INFORMATION. In the event the
transaction contemplated hereby will fail to close for any reason other than a
default by Seller hereunder, Buyer will, at its expense, promptly deliver to
Seller (1) all existing originals and copies of the written information and
materials supplied to Buyer by Seller, Manager or their respective agents; and
(2) true, accurate and complete copies of any written information concerning the
Property prepared by or on behalf of Buyer in connection with its investigations
hereunder (including any reports, audits and appraisals prepared by any third
parties). Seller will not hold Buyer responsible for the accuracy of any
information prepared by third parties which is delivered to Seller in connection
with this Paragraph.
J. POST CLOSING ACCESS. For a period of six (6) months subsequent to
the Closing Date, Seller and its employees, agents and representatives will be
entitled to access during business hours to all documents, books and records
given to Buyer by Seller at the Closing for tax and audit purposes, regulatory
compliance, and cooperation with governmental investigations upon reasonable
prior notice to Buyer, and will have the right to make copies of such documents,
books and records at Seller's expense.
K. SECTION 1031 EXCHANGE. Buyer acknowledges that Northwest Retail
Member, L.L.C. and/or Northwest Retail Associates, L.L.C., the entities directly
or indirectly comprising Seller (collectively, "SELLER MEMBER"), may be assigned
all or a portion of Seller's rights under this Agreement in order that Seller
Member may sell a portion of the Property outright or as part of an IRC Section
1031 tax deferred exchange. Buyer agrees to reasonably cooperate (but not act as
an accommodator or qualified intermediary) with Seller Member in such sale or
exchange, provided that (i) such cooperation and the effecting of the sale or
exchange will be at no additional cost, expense or liability to Buyer; and (ii)
the sale or exchange will not prevent, delay or be a condition to Closing.
Seller will have the right to assign a portion of this Agreement and its rights
hereunder to Seller Member, and Seller Member will have the right to assign its
rights under this Agreement to a qualified intermediary selected and designated
by Seller Member without the consent of Buyer and without such assignments
constituting a default under this Agreement, provided that Seller delivers prior
written notification of such assignment to Buyer and provided that such
assignments by Seller and Seller Member will not relieve Seller of its
obligations hereunder. The provisions of this sub-paragraph K will survive the
Closing.
28
M. INDEMNIFICATION OBLIGATIONS. If the Closing occurs, then the
parties will have the following respective indemnification obligations, which
indemnification obligations will survive the Closing for a period of six (6)
months from the Closing Date, at which time the indemnification obligations with
respect to which the Indemnitee (defined below) has not provided the Indemnitor
(defined below) written notice will terminate.
(i) INDEMNIFICATION BY SELLER. Seller will protect, defend,
indemnify and hold Buyer and the Property harmless from and against any Claim,
made by any person or entity other than a Tenant, Buyer, an affiliate of Buyer,
or a successor-in-interest to Buyer, in any way related to the Property and
arising or accruing prior to Closing Date.
(ii) INDEMNIFICATION BY BUYER. Buyer will protect, defend,
indemnify and hold Seller harmless from and against any Claim, made by any
person or entity other than a Tenant, Seller or an affiliate of Seller, in any
way related to the Property and first arising or accruing on or after the
Closing Date.
(iii) GENERALLY. The indemnification obligations under this
Agreement, including those set forth in this subparagraph L, will be subject to
the following provisions:
(1) The party seeking indemnification ("INDEMNITEE") will notify
the other party ("INDEMNITOR") of any Claim against Indemnitee within forty-five
(45) days after it has notice of such Claim, but failure to notify Indemnitor
will in no case prejudice the rights of Indemnitee under this Agreement unless
Indemnitor will be prejudiced by such failure and then only to the extent of
such prejudice. Should Indemnitor fail to discharge or undertake to defend
Indemnitee against such liability (with counsel approved by Indemnitee), within
thirty (30) days after Indemnitee gives Indemnitor written notice of the same,
then Indemnitee may settle such Claim, and Indemnitor's liability to Indemnitee
will be conclusively established by such settlement, the amount of such
liability to include both the settlement consideration and the reasonable costs
and expenses, including attorneys' fees, incurred by Indemnitee in effecting
such settlement. Indemnitee will have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel will be at the expense of
Indemnitee unless: (a) the employment of such counsel will have been authorized
in writing by Indemnitor in connection with the defense of such action, (b)
Indemnitor will not have employed counsel to direct the defense of such action,
or (c) Indemnitee will have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to
Indemnitor (in which case Indemnitor will not have the right to direct the
defense of such action or of Indemnitee), in any of which events such fees and
expenses will be borne by Indemnitor.
(2) The indemnification obligations under this Agreement will
cover the costs and expenses of Indemnitee, including reasonable attorneys'
fees, related to any actions, suits or judgments incident to any of the matters
covered by such indemnities.
(3) The indemnification obligations under this Agreement will
also extend to any present or future advisor, trustee, director, officer,
partner, member,
29
manager, employee, beneficiary, shareholder, participant or agent of or in
Indemnitee or any entity now or hereafter having a direct or indirect ownership
interest in Indemnitee.
N. JURISDICTION; VENUE. Each party hereby consents to the exclusive
jurisdiction of any state or federal court located within Multnomah County,
Oregon, waives personal service of any and all process upon it, consents to
service of process by registered mail directed to each party at the address for
notices herein, and acknowledges that service so made will be deemed to be
completed upon actual delivery thereof (whether accepted or refused). Each party
further consents and agrees that venue of any action instituted under this
Agreement will be proper solely in Multnomah County, Oregon, and hereby waives
any objection to such venue.
O. WAIVER OF TRIAL BY JURY. The parties hereby irrevocably waive
their respective rights to a jury trial of any claim or cause of action based
upon or arising out of this Agreement. This waiver will apply to any subsequent
amendments, renewals, supplements or modifications to this Agreement. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
P. NO RECORDATION. In no event will this Agreement or any document
or other memorandum related to the subject matter of this Agreement be recorded
without the consent of Seller.
Q. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to constitute an original, but all of
which, when taken together, will constitute one and the same instrument, with
the same effect as if all of the parties to this Agreement had executed the same
counterpart.
Q. STATUTORY DISCLAIMER. THE PROPERTY DESCRIBED IN THIS INSTRUMENT
MAY NOT BE WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY
IS SUBJECT TO LAND USE LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY
NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS
AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES.
BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO
THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING
DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR
STRUCTURES.
R. LEASING FOLLOWING CLOSING.
(1) LEASING ESCROW ACCOUNT. On the Closing Date, Seller will fund an
escrow account (the "LEASING ESCROW ACCOUNT") in an amount (the "LEASING FUND
DEPOSIT") equal to the sum of the annual rents and reimbursable expenses set
forth in EXHIBIT N hereto for any portion of the Property identified in EXHIBIT
N that is not then subject to a Tenant Lease under which the tenant has
commenced to pay rent and reimbursable expenses. The funds so deposited into the
Leasing Escrow Account, together with any interest from time to time earned
thereon, are referred to herein as the
30
"LEASING FUNDS". The Leasing Escrow Account will be an interest-bearing escrow
account to be held by the Title Company pursuant to the terms of an escrow
agreement similar in form to the Escrow Agreement. The Leasing Funds will be
invested in only the following investments selected by Seller: (i) United States
Treasury obligations; or (ii) United States Treasury-backed repurchase
agreements issued by a major national money center banking institution.
(2) PAYMENTS FROM LEASING ESCROW ACCOUNT.
(a) On the Closing Date and on the first day of each and every
calendar month thereafter, until twelve (12) payments have been made, the Title
Company will pay to Buyer, from the Leasing Escrow Account, an amount (the
"MONTHLY LEASING PAYMENT") equal to one-twelfth (1/12th) of the sum of the
annual rents and reimbursable expenses set forth in EXHIBIT N hereto for any
portion of the Property identified in EXHIBIT N that is not then subject to a
Tenant Lease under which the tenant has commenced to pay rent. If the Closing
Date occurs on a date other than the first business day of a calendar month,
then the Monthly Leasing Payment for the period from the Closing Date through
the expiration of the calendar month in which Closing occurs will equal the
product of (i) the Monthly Leasing Payment for a full calendar month, measured
as of such date, and (ii) a fraction, the numerator of which is the number of
days from and including the Closing Date through the expiration of the calendar
month in which Closing occurs and the denominator of which is thirty (30). If
the Closing Date occurs on a date other than the first business day of a
calendar month, then the final installment of the Monthly Leasing Payment will
be adjusted to account for such partial calendar month.
(b) The Monthly Leasing Payment will be disbursed by Title Company to
Buyer on the first day of each calendar month, provided, however, if prior to
the first day of a calendar month a tenant (i) has executed a lease for a
premises described on EXHIBIT N and (ii) commenced to pay rent and reimbursable
expenses thereunder, then the Monthly Leasing Payment will be reduced by the
amount of rent and reimbursable expenses payable by such tenant for a calendar
month. Seller or Buyer will be entitled to deliver notice to Title Company
setting forth the adjustment in the Monthly Leasing Payment that will be made
from and after such date. The party not delivering notice will be entitled to
object to the delivery by the other party of notice describing the adjustment in
the Monthly Leasing Payment. The written direction of a party will include a
calculation of the amount of the Monthly Leasing Payment to be paid by Title
Company. Buyer or Seller will endeavor to provide the written direction to Title
Company two (2) business days prior to the first day of a calendar month in
order for Title Company, absent objection from the non-sending party, to
disburse the Monthly Leasing Payment to Buyer in the requested amount. Whether
or not such a notice has been delivered, the funds held in the Leasing Escrow
Account that are attributable to a premises for which a tenant is paying rent
and reimbursable expenses will belong to Seller from and after the commencement
of payment of rent by that tenant.
(c) Because Seller will have given a credit to Buyer on the Closing
Date for the amount of tenant improvement and leasing costs that are expected to
be payable with respect to the premises described in EXHIBIT N that are not
leased as of the Closing
31
Date (and for the premises leased as of the Closing Date for which the tenant
has not commenced paying rent and reimbursable expenses), as provided in
Paragraph 6D(3), Seller will not have any liability whatsoever for the payment
of tenant improvement costs or leasing commissions from and after the Closing
Date, to the extent credited to Buyer at Closing. In that event that, as of the
Closing Date, any costs for tenant improvement obligations or leasing
commissions with respect to the premises described in EXHIBIT N have been
incurred by Seller (and credited to Buyer) but have not been paid in full, then
Buyer will assume the obligation to pay and satisfy same pursuant to one or more
instruments of assignment and assumption reasonably satisfactory to Buyer and
Seller. The parties acknowledge that Seller will have no liability whatsoever
under, or with respect to any matter covered by, a Tenant Lease, construction
contract, leasing agreement or service contract executed after the Closing Date.
(3) FINAL DISBURSEMENT. On the first anniversary of the Closing Date,
(a) all Leasing Funds that are remaining in the Leasing Escrow Account that are
not owing to Buyer will be promptly remitted to Seller by Title Company, (b) all
Leasing Funds that are remaining in the Leasing Escrow Account that are not
owing to Seller will be promptly remitted to Buyer by Title Company, and (c) all
Leasing Funds paid to Buyer at any time that should have been remitted to Seller
will be refunded by Buyer to Seller.
(4) SURVIVAL. The provisions of this subparagraph R will survive
Closing hereunder.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION IS NOT INTENDED TO NOR
WILL CONSTITUTE AN OFFER TO SELL, OR A RESERVATION OF, OR OPTION OR PROPOSAL OF
ANY KIND FOR THE PURCHASE OF THE PROPERTY. IN NO EVENT WILL ANY DRAFT OF THIS
AGREEMENT CREATE ANY OBLIGATION OR LIABILITY, IT BEING UNDERSTOOD THAT THIS
AGREEMENT WILL BE EFFECTIVE AND BINDING ONLY WHEN A COUNTERPART HEREOF HAS BEEN
EXECUTED AND DELIVERED BY EACH PARTY HERETO AND THE INITIAL DEPOSIT IS DELIVERED
TO TITLE COMPANY.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PORTLAND PLAZA 205, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its duly authorized Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PLAZA PARCEL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its sole Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
33
MALL 205, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its duly authorized Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S.E. 96TH AVE., L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Associates, L.L.C.,
a Delaware limited liability company,
its sole member
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇., L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its sole member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its manager
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
PM 205 PARCEL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Parcel 205 Member, L.L.C.,
a Delaware limited liability company,
its sole member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its manager
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
35
INLAND REAL ESTATE ACQUISITIONS, INC.,
AN ILLINOIS CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
36
REAL PROPERTY PURCHASE AGREEMENT
MALL 205
PLAZA 205
EXHIBIT LIST
Exhibit A-1 - Description of Mall 205 Land
Exhibit A-2 - Description of Plaza 205 Land
Exhibit B-1 - Inventory of Mall 205 Personal Property
Exhibit B-2 - Inventory of Plaza 205 Personal Property
Exhibit C - Form of Deposit Escrow Agreement
Exhibit D-1 - Due Diligence Information
Exhibit D-2 - Buyer's Due Diligence Checklist
Exhibit E - Form of Deeds
Exhibit F - Form of ▇▇▇▇ of Sale, Assignment and Assumption
Exhibit G - Form of Certificate of "Non-Foreign" Status
Exhibit H - Form of Closing Certificate
Exhibit I - Form of Notice to Tenants
Exhibit J - Rent Roll
Exhibit K - Exceptions to Seller's Warranties
Exhibit L - List of Service Contracts
Exhibit M-1 - Form of Tenant Estoppel Certificate
Exhibit M-2 - Form of Target ▇▇▇ ▇▇▇▇▇ Estoppel Certificate
Exhibit N - Projected Rents, Leasing Commissions and Tenant
Improvement Costs for Premises Not Presently Subject
to Leases or Occupied by Rent-Paying Tenants
1
EXHIBIT A-1
DESCRIPTION OF MALL 205 LAND
[SEE ATTACHED PAGE]
EXHIBIT A-2
DESCRIPTION OF PLAZA 205 LAND
[SEE ATTACHED PAGE]
EXHIBIT B-1
INVENTORY OF MALL 205 PERSONAL PROPERTY
Chain Saw
Drop Spreader
Leaf Blower
Weed Whacker
Wheelbarrow
Grinder
Tool Boxes
Miscellaneous Hand Tools
Floor Scrubber
Floor Sweeper
▇▇▇▇▇ Goat Vacuum, 8hp
Wet/Dry Vacuum, 20 gallon
Wet/Dry Vacuum, gallon
Vacuum Cleaners (2)
Step Ladder, Aluminum, 10-foot
Step Ladder, Aluminum, 6-foot
Pressure Washer
Time Clocks (2)
Walkie Talkie (7)
Refrigerator (2)
EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ PERSONAL PROPERTY
Desks (6)
Chairs (10)
Conference Table
Lexmark 4039 10 Plus Printer
Canon LBP 430 Printer
Typewriter
Xerox 5028 Copy Machine (5050390 Copies)
Cabinets (10)
Tables (20) and Cart
EXHIBIT C
FORM OF DEPOSIT ESCROW AGREEMENT
Escrow Agreement among Seller, Buyer and Escrow Holder.
RECITAL
Seller and Buyer have entered into the Purchase Agreement dated effective
as of December 3, 2003 for the Property. In connection with the transactions
contemplated by the Purchase Agreement, Buyer and Seller have requested Escrow
Holder to hold the Deposit (as defined in the Purchase Agreement) under the
Purchase Agreement in escrow in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the covenants herein and other valuable
consideration, Seller, Buyer and Escrow Holder agree as follows:
1. DEFINITION OF TERMS - Throughout this Agreement the following
terms will be defined as indicated.
TERM DEFINITION
Seller Mall 205, L.L.C.
Portland Plaza ▇▇▇, ▇.▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇.
▇.▇. ▇▇▇▇ ▇▇▇., ▇.▇.▇.
▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇., L.L.C.
PM 205 Parcel, L.L.C.
Seller's Address 28th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Buyer Inland Real Estate Acquisitions, Inc.
Buyer's Addresses ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Escrow Holder (until the
Expiration of the Due
Diligence Period and the Chicago Title Insurance Company
delivery of the Deposit) ("CTIC")
Address ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Escrow Holder (after the
Expiration of the Due
Diligence Period and upon Chicago Title Insurance Company of
assignment of this Agreement) Oregon ("CTICO")
Address ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Purchase Agreement Dated as of December 3, 2003
Property See Exhibits A-1 and A-2 to Purchase
Agreement
Initial Escrow Deposit $1,000,000
Additional Escrow Deposit $1,000,000
Date of this Escrow Agreement December 3, 2003
2. RECEIPT OF ESCROW CHECK - CTIC may receive the check or
wire transfer representing the Initial Escrow Deposit, and CTICO may receive the
check or wire transfer representing the Additional Escrow Deposit under the
Purchase Agreement (the Initial Escrow Deposit, the Additional Escrow Deposit
and any interest accrued thereon is hereinafter called the "DEPOSIT"). CTIC
agrees to hold the Deposit on the terms and conditions set forth in this
Agreement. If Buyer does not deliver a notice terminating the Purchase Agreement
on or before 5:00 PM Pacific Time on Monday, December 29, 2003, then CTIC shall
assign all of its right, title and interest in and to this Agreement to CTICO in
the form attached hereto as SCHEDULE 1, and, from and after the date of such
assignment, (a) CTIC shall transfer the Initial Escrow Deposit to CTICO and (b)
CTICO shall, for all purposes, act as the Escrow Holder under this Agreement.
3. DISPOSITION OF CONTRACT DEPOSIT - Escrow Holder shall hold
and dispose of the Deposit in accordance with the terms of this Agreement or in
accordance with any instruction or instructions which shall be signed jointly by
both Seller and Buyer, or in accordance with separate instructions of like tenor
signed by Seller and Buyer. Seller and Buyer hereby instruct and authorize
Escrow Holder to invest the Deposit in any of the
following: (i) United States Treasury obligations; (ii) United States
Treasury-backed repurchase agreements issued by a major national money center
banking institution reasonably acceptable to Seller; or (iii) such other
investments as may be reasonably acceptable to Seller and Buyer. If Escrow
Holder will receive an instruction (hereinafter the "INSTRUCTION") with respect
to the Deposit, or any part thereof, from Seller but not from Buyer, or from
Buyer but not from Seller (the party giving the Instruction being hereinafter
referred to as the "INSTRUCTING PARTY" and the party which will not have given
the Instruction being hereinafter referred to as the "NON-INSTRUCTING PARTY"),
Escrow Holder will transmit a copy of the Instruction received from the
Instructing Party to the Non-Instructing Party. Escrow Holder will not act in
accordance with the Instruction unless and until the Non-Instructing Party will
notify Escrow Holder in writing that Escrow Holder is to comply with the
Instruction. If the Non-Instructing Party will advise Escrow Holder not to
comply with the Instruction, Escrow Holder will not act in accordance with the
Instruction, but may thereafter either
(a) act solely in accordance with any of the following:
(i) a new Instruction signed jointly by Seller and
Buyer;
(ii) separate Instructions of like tenor from each of
Seller and Buyer;
(iii) a certified copy of an arbitrator's award issued
under the rules of the American Arbitration
Association as to which Escrow Holder will have
received an opinion of a law firm satisfactory to
Escrow Holder in its sole and absolute discretion
that such award is final beyond appeal; or
(iv) a certified copy of a judgment of a court of
competent jurisdiction as to which Escrow Holder
will have received an opinion of a law firm
satisfactory to Escrow Holder in its sole and
absolute discretion that such award is final
beyond appeal; or
(b) deposit the Deposit with a court selected by Escrow
Holder and in such event all liability and responsibility of Escrow Holder will
terminate upon such deposit having been made.
4. RESPONSIBILITY - Escrow Holder will not be bound in any way
by the Purchase Agreement or any other agreement between Seller and Buyer,
whether or not it has knowledge thereof, and Escrow Holder's only duties and
responsibilities will be to hold and to dispose of the Deposit in accordance
with the terms of this Agreement.
5. NOTICE - Any notice, report, demand or instruction required
or permitted under this Agreement will be deemed to have been sufficiently
transmitted,
delivered, given or served for all purposes if delivered by nationally
recognized overnight courier service which provides a receipt to the parties at
their addresses hereinabove set forth (if to Seller, with a copy to Pircher,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Real
Estate Notices (EJML); if to Buyer, with a copy to The Inland Group, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.), or
at such other address as a party may hereafter designate by written notice as
herein provided. The effective date of delivery or transmittal of a notice,
report, demand or instruction will be the actual date that delivery is effected.
6. MISCELLANEOUS - This Agreement will be governed by and
construed in accordance with the laws of the State of Oregon and will bind and
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Agreement may not be changed or
amended except by a writing signed by all of the parties hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PORTLAND PLAZA 205, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its duly authorized Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
PLAZA PARCEL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its sole Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
MALL 205, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its duly authorized Member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its Manager
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
S.E. 96TH AVE., L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Associates, L.L.C.,
a Delaware limited liability company,
its sole member
By:
---------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S.E. WASHINGTON ST., L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Northwest Retail Member, L.L.C.,
a Delaware limited liability company,
its sole member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its manager
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
PM 205 PARCEL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Parcel 205 Member, L.L.C.,
a Delaware limited liability company,
its sole member
By: Oaktree Capital Management, LLC,
a California limited liability company,
its manager
By:
-----------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
INLAND REAL ESTATE ACQUISITIONS, INC.,
AN ILLINOIS CORPORATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
CHICAGO TITLE INSURANCE COMPANY,
an Illinois corporation
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
SCHEDULE 1
ASSIGNMENT AND ASSUMPTION OF ESCROW AGREEMENT
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged, CHICAGO TITLE INSURANCE COMPANY, an Illinois corporation
("ASSIGNOR"), hereby assigns to CHICAGO TITLE INSURANCE COMPANY OF OREGON, an
Oregon corporation ("ASSIGNEE"), all of Assignor's rights, interests and
obligations under that certain Escrow Agreement (the "AGREEMENT") dated as of
December 3, 2003, by and among Assignor, PORTLAND PLAZA 205, L.L.C., a Delaware
limited liability company, PLAZA PARCEL, L.L.C., a Delaware limited liability
company, MALL 205, L.L.C., a Delaware limited liability company, S.E. 96th AVE.,
L.L.C., a Delaware limited liability company, S.E. WASHINGTON ST., L.L.C., a
Delaware limited liability company, and PM 205 PARCEL, L.L.C., a Delaware
limited liability company, and INLAND REAL ESTATE ACQUISITIONS, INC., an
Illinois corporation.
Assignee hereby accepts the foregoing assignment and agrees to assume and
discharge, in accordance with the terms thereof, all of the burdens and
obligations of Assignor under the Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as of
December _____, 2003.
ASSIGNOR: CHICAGO TITLE INSURANCE COMPANY,
an Illinois corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ASSIGNEE: CHICAGO TITLE INSURANCE COMPANY OF OREGON,
an Oregon corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT D-1
DUE DILIGENCE INFORMATION
1. Information contained in that certain Investment Offering for Mall 205,
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, presented by CB ▇▇▇▇▇▇▇
▇▇▇▇▇.
2. Information contained in that certain Investment Offering for Plaza 205,
10302-10542 ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, presented by CB
▇▇▇▇▇▇▇ ▇▇▇▇▇.
EXHIBIT D-2
BUYER'S DUE DILIGENCE CHECKLIST
A. FINANCIAL INFORMATION
1. Copy of leases and any guarantees
2. Current Rent Roll
3. Standard Lease Form
4. Latest leasing status report
5. List of specialty license agreements
6. Prior two full years operating statements + Year-to-date statement
7. Prior year's general ledger statement + Year-to-date statement
8. Last three years' bills for:
a. Real estate taxes
b. Reconciliations for CAM/taxes/insurance
c. Statement of current monthly amounts paid by tenants for
CAM/tax/insurance plus a year-to-date balance of amounts
paid by each tenant
9. Information related to any recent CAM or TAX Audits, including copies
of reports (Target REA)
10. Receivables status/aging report
11. Tenant sales reports for last three years
12. Description and breakdown of Promotional Income and Marketing Fund
13. Leasing Plan
B. EXPENSE INFORMATION
1. Twelve months of consecutive utility bills
a. Water
b. Gas
c. Electric
d. Telephone and dedicated lines
2. Copies of all service agreements, contracts or any leases that
encumber the property (if and to the extent available)
3. Capital improvements
a. Assignable warranties (if and to the extent available)
C. ENVIRONMENTAL REPORTS
1. Phase I
2. Other (if any)
D. STAFFING
1. Itemized by position and salary
E. SITE INSPECTIONS
1. Inspection report
2. Photo attached
F. MISCELLANEOUS
1. Code violations
a. Current and outstanding
b. Last 24 months, with compliance
c. Contact municipalities as to other problems
2. Warranties
3. Current tenant contact list
4. Certificates of insurance from tenants
5. Marketing/leasing brochures
6. Survey
7. Site plan
8. Building photographs and aerials
9. Certificates of Occupancy
EXHIBIT E
FORM OF DEEDS
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
____________________________
____________________________
____________________________
MAIL TAX STATEMENTS TO:
____________________________
____________________________
____________________________
SPECIAL WARRANTY DEED
________________________________________________________________, ("GRANTOR"),
conveys and specially warrants to ________________________________, ("GRANTEE"),
the following described real property (the "PROPERTY") in the City of Portland,
County of Multnomah, State of Oregon, free of encumbrances created or suffered
by the Grantor, except as specifically set forth herein:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF.
The Property is free of all encumbrances created or suffered by the Grantor
except:
SEE EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF.
The true consideration for this conveyance is $______________________________.
THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE WITHIN A FIRE
PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS SUBJECT TO LAND USE
LAWS AND REGULATIONS, WHICH, IN FARM OR FOREST ZONES, MAY NOT AUTHORIZE
CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH LIMIT LAWSUITS AGAINST FARMING
OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN ALL ZONES. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD
CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND EXISTENCE OF FIRE PROTECTION FOR STRUCTURES.
Grantor, for itself and for its successors and assigns, does specially
warrant the title to the Property and will defend the same against the lawful
claims (other than those set forth on Exhibit B) of all persons claiming by,
through or under Grantor, but not otherwise.
Dated as of this _____ day of _____, ____________
_____________________________________
a ___________________________________
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE OF )
) ss
COUNTY OF )
On ___________ ____, _______________before me, , a Notary Public in and for
said County and State, personally appeared _________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
----------------------------------
SPACE FOR NOTARY SEAL OR STAMP
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
PERMITTED EXCEPTIONS
EXHIBIT F
FORM OF ▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
MALL 205
PLAZA 205
FOR VALUABLE CONSIDERATION, receipt and adequacy of which is hereby
acknowledged, as of the date hereof (the "EFFECTIVE DATE"), the undersigned,
________________, a Delaware limited liability company ("ASSIGNOR"), hereby
sells, transfers, assigns and conveys to __________________________, a
___________________ ("ASSIGNEE"), all right, title and interest of Assignor in
and to the "Personal Property", the "Tenant Leases" and the "Intangible
Property", as each of the foregoing is defined in that certain agreement
("PURCHASE AGREEMENT") captioned "REAL PROPERTY PURCHASE AGREEMENT", dated as of
______, 2003, by and between Assignor and Assignee, providing for, among other
things, the conveyance of the Personal Property, the Tenant Leases, and the
Intangible Property. Unless otherwise defined herein, all terms used in a
capitalized manner herein will have the meaning set forth in the Purchase
Agreement.
The covenants, agreements, representations, warranties, indemnities and
limitations provided in the Purchase Agreement with respect to the property
conveyed hereunder (including, without limitation, the limitations of liability
provided in Paragraphs 3, 8, 9, 11B and 11M of the Purchase Agreement), are
hereby incorporated herein by this reference as if herein set out in full and
will inure to the benefit of and will be binding upon Assignee and Assignor and
their respective successors and assigns.
This ▇▇▇▇ of Sale, Assignment and Assumption is made subject to the title
exceptions approved or deemed approved by Assignee pursuant to Paragraph 4 of
the Purchase Agreement.
This ▇▇▇▇ of Sale, Assignment and Assumption may be executed in one or more
identical counterparts, each of which such counterpart will be deemed an
original for all purposes and all such counterparts collectively consisting of
one such ▇▇▇▇ of Sale, Assignment and Assumption.
As of the Effective Date, Assignee hereby accepts the foregoing ▇▇▇▇ of
Sale, Assignment and Assumption and hereby agrees to assume and discharge, in
accordance with the terms thereof, all of the burdens and obligations of
Assignor relating to the Tenant Leases and Intangible Property first arising and
accruing on and after the Effective Date; subject, however, to any provisions in
the Tenant Leases which limit the liability of the lessor thereunder.
IN WITNESS WHEREOF, Assignor and Assignee have executed this ▇▇▇▇ of Sale,
Assignment and Assumption as of __________, _______.
ASSIGNOR:
_____________________________________
a ___________________________________
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
ASSIGNEE:
_____________________________________
a ___________________________________
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT G
FORM OF CERTIFICATE OF NON-FOREIGN ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform __________________________, a ___________________ ("BUYER"),
that withholding of tax is not required upon the disposition of a U.S. real
property interest by _____________________________, a Delaware limited liability
company ("SELLER"), the undersigned hereby swears, affirms and certifies the
following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations).
2. Seller's U.S. employer identification number is ____________.
3. Seller's office address is:
___________________________________
___________________________________
___________________________________
Attention: _______________________
4. Seller understands that this certification may be disclosed to the
Internal Revenue Service by Buyer and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned declares that he has examined
this certification and to the best of his knowledge and belief it is true,
correct and complete, and he/she further declares that he has the authority to
sign this document on behalf of Seller.
Executed as of the _____ day of _________, _________.
___________________________________________
a _________________________________________
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT H
FORM OF CLOSING CERTIFICATE
THIS CERTIFICATE OF SELLER (the "CERTIFICATE") is made this ____ day
of ______________, ________ by ______________________, a Delaware limited
liability company ("SELLER") in favor of ____________________________, a
___________________ ("BUYER").
WITNESSETH
WHEREAS, Seller and Buyer entered into that certain Retail Property
Purchase Agreement, dated ________ ____, 2003 (the "AGREEMENT"). All capitalized
terms used but not defined herein will have the meaning ascribed to such terms
in the Agreement; and
WHEREAS, Paragraph 6A(1) of the Agreement requires Seller to deliver
to Buyer this certificate at closing.
NOW, THEREFORE, as part of the consideration for the purchase of the
Property by Buyer, Seller hereby certifies that, except as set forth on EXHIBIT
A attached hereto, the representations and warranties of Seller contained in the
Agreement are true and correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, this Certificate has been executed as of the date
first set forth above.
___________________________________________
a _________________________________________
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXHIBIT I
FORM OF NOTICE TO TENANTS
As of ____________, ________
____________________________
____________________________
____________________________
Attention: ________________
Re: Your lease ("LEASE") in ______ 205 located at
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (the "PROPERTY")
Dear Tenant:
We are pleased to announce that, as of the date of this letter,
__________________, a Delaware limited liability company ("FORMER OWNER"), has
sold its interest in the Property, the landlord's interest in the Lease and the
current security deposit balance of $_______ under the Lease to________________,
a ___________________ ("NEW OWNER"); and New Owner has assumed and agreed to
perform all of the landlord's obligations under the Lease on and after such
date. Accordingly, all of your obligations under the Lease on and after such
date (including your obligation to pay rent) will be performable to and for the
benefit of New Owner, and its successors and assigns; and all of the obligations
of the landlord under the Lease on and after such date will be the binding
obligations of New Owner, and its successors and assigns.
Unless and until you are otherwise notified in writing by New Owner, the
address of New Owner for all purposes under your Lease (including the giving of
any notices provided for in your Lease) is as follows:
______________________________
______________________________
______________________________
Attention: _______________
Until you are notified to the contrary by New Owner, the Property will be
managed by _________________________________________, and as in the past, your
rental payment is due and payable on the first of each month. Except as
otherwise notified by New Owner, rent should be made payable to
"_____________________" and sent to the above address.
Please feel free to call _____________________ (___) ___-____, if you have
any questions.
Very truly yours,
FORMER OWNER:
_____________________________________
a ___________________________________
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
NEW OWNER:
_____________________________________
a ___________________________________
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT J
RENT ROLL
[TO COME]
EXHIBIT K
EXCEPTIONS TO SELLER'S WARRANTIES
Forcible entry and detainer matter captioned MALL 205, L.L.C. V. U.S. PACIFIC
TRADING COMPANY, DBA SHOES UNLIMITED, Case No. 03F-003211, in the Circuit Court
of Multnomah County, Oregon, and complaint of breach of lease and fraud
captioned U.S. PACIFIC TRADING COMPANY, DBA SHOES UNLIMITED V. MALL 205, L.L.C.,
Case No. 0303-02876, in the Circuit Court of Multnomah County, Oregon.
EXHIBIT L
LIST OF SERVICE CONTRACTS
MALL 205
ADT Security Services
American Heating, Inc.
Highridge Corp.
Initial Tropical Plants
▇▇▇▇-▇▇▇▇
▇▇▇▇▇
Muzak
Pavement Maintenance
River City Environmental
Service Pest Control, Inc.
The ▇▇▇▇▇▇ Group
Trash Masters, L.L.C.
The Wackenhut Corporation
Willamette Pressure Washing
PLAZA 205
ADT Security Services
American Heating, Inc.
Highridge Corp.
▇▇▇▇▇
Pavement Maintenance
The ▇▇▇▇▇▇ Group
Trash Masters, L.L.C.
The Wackenhut Corporation
Willamette Pressure Washing
EXHIBIT M-1
FORM OF ESTOPPEL CERTIFICATE
____________________("Buyer")
____________________
____________________
____________________
Attention:__________
____________________("Seller")
____________________
____________________
____________________
____________________
Attention:__________
Re: Lease dated __________ (the "Lease") executed between ___________
___________________ ("LANDLORD"), and _________________________
("TENANT"), for those premises located at ___________________,
__________________, and consisting of approximately ________
square feet.
Ladies and Gentlemen:
The undersigned Tenant understands that Buyer or its assigns intend to
acquire fee title to that property commonly known as __________________________
__________________ (the "PROPERTY") from Seller. The undersigned Tenant does
hereby certify to Buyer and Seller as follows:
A. Tenant has entered into a certain lease together with all amendments
(the "Lease") as described on Schedule 1 attached hereto.
B. The Lease is in full force and effect and has not been modified,
supplemented, or amended except as set forth on Schedule 1 attached hereto.
C. Tenant has not given Landlord written notice of any dispute between
Landlord and Tenant or that Tenant considers Landlord in default under the
Lease.
D. Tenant does not claim any offsets or credits against rents payable
under the Lease.
E. Tenant has not paid a security or other deposit with respect to the
Lease, except as follows: A security deposit of ____________ has been paid.
F. Monthly installments of minimum rental in the amount of $__________
have been fully paid to and including the month of ________, 2003.
G. Percentage Rent under the Lease is as follows:
_________________________________________________________. Percentage Rent has
been paid through _______________.
H. CAM charges are as follows: __________________________________
____________________________________________________. CAM has been paid through.
I. Tenant has not paid any rentals in advance except for the current
month of ________, 2003.
J. The Lease expires on _________________.
K. Tenant has no options, rights of first offer or rights of first
refusal to purchase or profit participation to the Property, except as follows:
None.
DATE: TENANT:
---------------
-------------------------------
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
EXHIBIT M-2
FORM OF TARGET ▇▇▇
▇▇▇▇▇ ESTOPPEL CERTIFICATE
__________________, 2003
▇▇▇▇ ▇▇▇, ▇.▇.▇. ▇▇▇▇▇▇ Real Estate Acquisitions, Inc.
S.E. 96th AVE., L.L.C. ("BUYER")
S.E. WASHINGTON ST., L.L.C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
PM ▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, "DEVELOPER") Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
c/o Center Oak Properties, L.L.C.
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby certifies to Buyer, Developer, Buyer's lenders and
each of Buyer's and Developer's respective successors and assigns as follows:
1. The undersigned is a party under that certain Construction, Operation
and Reciprocal Easement Agreement dated June 4, 1969, and duly recorded in the
Office of the Recorder of Deeds for Multnomah County on June 18, 1969, in Book
683, at page 487, relating to the real property located in the County of
Multnomah, State of Oregon, as more particularly described therein, as amended
by Supplemental Agreement, dated June 4, 1969, and recorded in the Office of the
Recorder of Deeds for Multnomah County on June 18, 1969, in Book 683, Page 563,
and in Book 683, Page 571, by Second Supplemental Agreement dated as of May 26,
1970, and recorded in the Office of the Recorder of Deeds for Multnomah County
on September 8, 1970, in Book 749 at Page 1414 as Document No. 32175, by Third
Supplemental Agreement dated as of October 21, 1970, and recorded in the Office
of the Recorder of Deeds for Multnomah County on January 28. 1971, in Book 770
at Page 689 and in Book 770 at Page 699, by Fourth Supplemental Agreement, dated
June 1, 1988, and recorded in the Office of the Recorder of Deeds for Multnomah
County on August 2, 1988, in Book 2125 at Pages 228 through 241, by Fifth
Supplemental Agreement dated October 17, 2000, and recorded in the Office of the
Recorder of Deeds for Multnomah County on April 30, 2001, as Document No.
2001-061230 and by Sixth Supplemental Agreement dated as of September 26, 2001,
and recorded in the Office of the Recorder of Deeds for Multnomah County on
October 5, 2001, as Document No. 2001-158028 (collectively, the "▇▇▇▇▇").
2. Except as set forth herein, the ▇▇▇▇▇ has not been modified, amended
or terminated.
3. To the best knowledge of the undersigned, neither the undersigned nor
Developer is in default under the terms of the ▇▇▇▇▇ beyond any applicable
notice and cure period, and the ▇▇▇▇▇ is in full force and effect.
TARGET CORPORATION,
a Minnesota corporation
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
EXHIBIT N
PROJECTED RENTS, LEASING COMMISSIONS AND
TENANT IMPROVEMENT COSTS FOR
PREMISES NOT PRESENTLY SUBJECT TO LEASES
OR OCCUPIED BY RENT-PAYING TENANTS
EXHIBIT-N
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
MALL 205
LEASE LEASE
ANNUAL RENT COMMENCEMENT EXPIRATION
TENANTS SPACE S.F. BASE RENT PER SQ. FOOT DATE DATE T.I.
--------------------------------------------------------------------------------------------------------------------------------
TARGET 177,134 SF SHADOW ANCHOR
Home Depot C-1 134,722 1,479,434.00 $ 10.98 April-01 January-22
Bed, Bath & Beyond (FSG) E-16 20,388 244,656.00 $ 12.00 October-03 September-13
Famous Footwear D-6 9,900 173,250.00 $ 17.50 August-02 July-07
State of Oregon DOJ (FSG) S-1 8,700 158,408.28 $ 18.21 February-02 January-12
Dress Barn E-21 8,011 96,132.00 $ 12.00 October-02 December-07
Olive Garden (PAD) P-1 6,895 90,000.00 $ 13.05 FEBRUARY-04 ▇▇▇▇▇▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇-▇-▇ 3,240 81,000.00 $ 25.00 September-02 August-07
▇. ▇▇▇▇▇▇ BOOKSELLER C-20 3,114 40,482.00 $ 13.00 NOVEMBER-78 JANUARY-04 31,140
Oregon Air Guard (FSG) E-26 1,350 27,648.00 $ 20.48 June-02 June-07
Subway A-20 835 16,866.00 $ 20.20 November-03 December-05
EB GAMES (PROPOSED) C-39 1,223 36,690.00 $ 30.00 FEBRUARY-04 JANUARY-09 24,460
24 Hour Fitness E-16 36,445 619,565.00 $ 17.00 July-01 July-16
Red ▇▇▇▇▇ (PAD) P-2 6,200 100,000.00 $ 16.13 September-01 August-21
Casual Choice E-10 4,883 87,894.00 $ 18.00 March-03 March-08
Learning Palace A-16 4,850 43,613.00 $ 8.99 October-95 December-05
Car Stereo City A-15 4,297 63,893.00 $ 14.87 September-02 September-09
Conoco / ▇▇▇▇▇▇▇▇ / Tosco / 76 (PAD) P-4 4,172 94,000.00 $ 22.53 October-88 December-09
HALLMARK (PROPOSED) E-20 4,106 61,590.00 $ 15.00 82,120
AVAILABLE C-33 2,329 70,000.00 $ 30.06 46,580
Club Tan Rio (PAD) P-3-3 2,300 57,500.00 $ 25.00 OCTOBER-02 November-07
Panda Express (PAD) P-3-5 1,900 47,500.00 $ 25.00 September-02 September-12
Perfect Look C-27 1,596 28,875.00 $ 18.09 May-90 December-04
Lazerquick (PAD) P-3-2 1,400 35,000.00 $ 25.00 October-02 September-07
Pizza ▇▇▇▇▇▇▇ ▇-▇ 1,270 30,480.00 $ 24.00 December-01 December-06
AVAILABLE C-32 1,657 29,826.00 $ 18.00 33,140
SPECS IN CITY (PROPOSED) C-36 1,311 39,330.00 $ 30.00 26,220
Great Clips (PAD) P-3-4 1,173 30,498.00 $ 26.00 December-02 December-07
AVAILABLE D-5 1,152 27,648.00 $ 24.00 34,560
GNC E-6 1,100 22,286.00 $ 20.26 January-89 January-07
LA SIERRA A-21 1,045 25,080.00 $ 24.00 NOVEMBER-03 OCTOBER-08
▇▇▇▇▇ ▇▇▇▇▇▇▇ Jewelry D-4A 1,001 40,000.00 $ 39.96 October-03 January-09
IMAGE STAR SHOTS E-9 1,000 32,500.00 $ 32.50 SEPTEMBER-01 AUGUST-06
Blue Star Diner C-25 930 27,900.00 $ 30.00 November-03 December-08
Wok Express A-18 877 21,048.00 $ 24.00 August-97 June-07
VAN DUYN'S CHOCOLATES (PROPOSED) D-3 830 24,900.00 $ 30.00 16,600
Waz Wan A-19 815 19,560.00 $ 24.00 November-03 OCTOBER-08
CLAIRE'S BOUTIQUE C-28 750 24,750.00 $ 33.00 JANUARY-91 DECEMBER-02
PAUL'S C-34 750 15,450.00 $ 20.60 MAY-93 FEBRUARY-07
Saigon Cuisine (Ly & Ly Family Ptrshp) C-21 733 18,325.00 $ 25.00 December-01 December-06
Ozzie's Deli & Gyros C-22 705 6,731.00 $ 9.55 June-96 December-07
BEAUTY NAILS C-35 600 18,000.00 $ 30.00
Kase's Konfection C-26 600 15,600.00 $ 26.00 November-03 December-08
Smart Wireless D-2 400 18,000.00 $ 45.00 December-01 November-06
Smart Wireless K-06 150 20,000.00 $ 133.33 July-02 June-07
VENDING MACHINES K-28 150 1,500.00 $ 10.00 OCTOBER-02 SEPTEMBER-03
BCTI K-01 120 18,000.00 $ 150.00 AUGUST-02 JULY-03
ATM - USA K-17 9 6,000.00 $ 666.67 April-03 March-08
Viacom Directory K-26 9 0.00 $ 0.00 November-03 October-08
AVAILABLE A-20.1 1,454 27,280.00 $ 18.76 36,350
AVAILABLE C-23 807 19,368.00 $ 24.00 16,140
AVAILABLE C-24 1,018 25,920.00 $ 25.46 20,360
AVAILABLE C-29 2,146 38,628.00 $ 18.00 42,920
AVAILABLE C-30 1,700 30,600.00 $ 18.00 34,000
AVAILABLE C-31 1,680 30,240.00 $ 18.00 33,600
AVAILABLE C-38 776 23,280.00 $ 30.00 15,520
AVAILABLE D-4B 1,506 36,144.00 $ 24.00 45,180
AVAILABLE E-07 1,100 25,000.00 $ 22.73 11,000
AVAILABLE E-28 1,200 21,600.00 $ 18.00 12,000
Rent Guarantee
---------------------------
TENANTS L.C. LL WORK RENT CAM TAXES NOTES
--------------------------------------------------------------------------------------------------------------------------------
TARGET 177,134 SF SHADOW ANCHOR
Home Depot
Bed, Bath & Beyond (FSG) Tenant pays % only first Lease Year
Famous Footwear
State of Oregon DOJ (FSG)
Dress Barn 12 MONTHS RENT GUARANTEE
Olive Garden (PAD) 15,000
Baja Fresh (PAD)
▇. ▇▇▇▇▇▇ BOOKSELLER 12,456 40,482
Oregon Air Guard (FSG)
Subway
EB GAMES (PROPOSED) 4,892 36,690 12 MONTHS RENT GUARANTEE
24 Hour Fitness
Red ▇▇▇▇▇ (PAD)
Casual Choice
Learning Palace
Car Stereo City
Conoco / ▇▇▇▇▇▇▇▇ / Tosco / 76 (PAD)
HALLMARK (PROPOSED) 16,424 61,590 12 MONTHS RENT GUARANTEE
AVAILABLE 9,316 70,000 12 MONTHS RENT GUARANTEE
Club Tan Rio (PAD)
Panda Express (PAD)
Perfect Look
Lazerquick (PAD)
Pizza Schmiza
AVAILABLE 6,628 29,826 12 MONTHS RENT GUARANTEE
SPECS IN CITY (PROPOSED) 5,244 39,330 12 MONTHS RENT GUARANTEE
Great Clips (PAD)
AVAILABLE 4,608 27,648 12 MONTHS RENT GUARANTEE
GNC
LA SIERRA
▇▇▇▇▇ ▇▇▇▇▇▇▇ Jewelry
IMAGE STAR SHOTS
Blue Star Diner
Wok Express
VAN DUYN'S CHOCOLATES (PROPOSED) 3,320 24,900 12 MONTHS RENT GUARANTEE
Waz Wan
CLAIRE'S BOUTIQUE
PAUL'S
Saigon Cuisine (Ly & Ly Family Ptrshp)
Ozzie's Deli & Gyros
BEAUTY NAILS
Kase's Konfection
Smart Wireless
Smart Wireless
VENDING MACHINES
BCTI
ATM - USA
Viacom Directory
AVAILABLE 5,816 27,280 12 MONTHS RENT GUARANTEE
AVAILABLE 3,228 19,368 12 MONTHS RENT GUARANTEE
AVAILABLE 4,072 25,920 12 MONTHS RENT GUARANTEE
AVAILABLE 8,584 38,628 12 MONTHS RENT GUARANTEE
AVAILABLE 6,800 30,600 12 MONTHS RENT GUARANTEE
AVAILABLE 6,720 30,240 12 MONTHS RENT GUARANTEE
AVAILABLE 3,104 23,280 12 MONTHS RENT GUARANTEE
AVAILABLE 6,024 36,144 12 MONTHS RENT GUARANTEE
AVAILABLE 4,400 25,000 12 MONTHS RENT GUARANTEE
AVAILABLE 4,800 21,600 12 MONTHS RENT GUARANTEE
EXHIBIT-N
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
MALL 205
LEASE LEASE
ANNUAL RENT COMMENCEMENT EXPIRATION
TENANTS SPACE S.F. BASE RENT PER SQ. FOOT DATE DATE T.I.
--------------------------------------------------------------------------------------------------------------------------------
AVAILABLE K-02 200 18,000.00 $ 90.00
AVAILABLE K-03 200 18,000.00 $ 90.00
AVAILABLE K-04 200 18,000.00 $ 90.00
AVAILABLE K-05 200 18,000.00 $ 90.00
AVAILABLE K-12 200 18,000.00 $ 90.00
AVAILABLE K-13 200 18,000.00 $ 90.00
AVAILABLE K-14 100 18,000.00 $ 180.00
AVAILABLE K-15 200 18,000.00 $ 90.00
AVAILABLE K-16 150 18,000.00 $ 120.00
AVAILABLE K-27 200 18,000.00 $ 90.00
TOTALS 307,230 4,745,468.28 561,890.00
Rent Guarantee
---------------------------
TENANTS L.C. LL WORK RENT CAM TAXES NOTES
--------------------------------------------------------------------------------------------------------------------------------
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
AVAILABLE 18,000 12 MONTHS RENT GUARANTEE
TOTALS 116,436.00 0.00 803,526.00 0.00 0.00
EXHIBIT-N
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
LEASE LEASE
ANNUAL RENT COMMENCEMENT EXPIRATION
TENANTS SPACE S.F. BASE RENT PER SQ. FOOT DATE DATE T.I.
--------------------------------------------------------------------------------------------------------------------------------
PLAZA 205
Office Max (Waremart) A-105 36,560 109,570.00 $ 3.00 DECEMBER-79 DECEMBER-04
▇▇▇▇▇ ▇-101 30,620 398,060.00 $ 13.00 JULY-92 AUGUST-13 1,000,000
US Postal Service (No CAM) A-108 21,152 77,830.00 $ 3.68 JANUARY-96 JANUARY-11
▇▇-▇▇▇ Fabrics A-106 17,807 78,350.00 $ 4.40 ▇▇▇▇-▇▇ ▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇-▇▇▇ 15,060 135,540.00 $ 9.00 October-02 September-07
Oregon State Police (Elec & Tax only) A-103 13,000 185,523.00 $ 14.27 NOVEMBER-02 OCTOBER-17
Providence Health A-109 10,190 163,040.00 $ 16.00 10 YEARS
Old Country / Home Town Buffet A-104 10,000 125,000.00 $ 12.50 JANUARY-92 December-07
Old Chicago C-101 6,516 151,497.00 $ 23.25 April-03 April-13
Car Stereo City C-103 4,718 103,796.00 $ 22.00 MAY-03 MAY-10
Bon Teriyaki C-102 1,647 42,822.00 $ 26.00 OCTOBER-03 OCTOBER-08
College Parking 900.00 February-74 Perpetual
VACANT A-107 3,760 22,560.00 $ 6.00
USA BEAUTY SALON A-101 2,500 50,000.00 $ 20.00 OCTOBER-03 JANUARY-11
TOTALS 173,530 1,644,488.00 1,000,000.00
---------------------- ------------
GRAND TOTAL 480,760 6,389,956 1,561,890
====================== ============
Rent Guarantee
----------------------------
TENANTS L.C. LL WORK RENT CAM TAXES NOTES
--------------------------------------------------------------------------------------------------------------------------------
Office Max (Waremart)
Bally 122,480 72,423 3 MONTHS RENT GUARANTEE
US Postal Service (No CAM)
▇▇-▇▇▇ Fabrics
Dollar Tree
Oregon State Police (Elec & Tax only)
Providence Health 40,760 3 MONTHS RENT GUARANTEE
Old Country / Home Town Buffet
Old Chicago
Car Stereo City
Bon Teriyaki
College Parking
VACANT
USA BEAUTY SALON
TOTALS 122,480.00 0.00 113,182.67 0.00 0.00
-------------------------------------------------
GRAND TOTAL 238,916 0 916,709 0 0
=================================================
Lots 1, 2, 3 and 4, MALL 205 CENTER, in the City of Portland, County of
Multnomah and State of Oregon.
EXCEPTING THEREFROM that portion of Lot 3 conveyed to the City of Portland for
street Right of Way purposes in Deed recorded April 12, 2002 as Recorder's Fee
No. 2002-066946, Multnomah County Deed Records.
FURTHER EXCEPTING THEREFROM that portion of Lot 1 conveyed to the City of
Portland for street Right of Way purposes in Deed Recorded October 31, 2003 as
Recorder's Fee No. 2003-260840.
PARCEL I: (PLAZA 205)
A tract of land situated in the Northwest one-quarter of Section 3, Township 1
South, Range 2 East of the Willamette Meridian, in the City of Portland, County
of Multnomah and State of Oregon, being more particularly described as follows:
Beginning at the intersection of the South right-of-way line of SE Washington
Street (Road No. 4022 - 62 feet wide) with the East right-of-way line of SE
103rd Drive (Road No. 4020 - 60 feet wide); thence South 2 DEG. 03'28" West,
along said East right-of-way line, a distance of 234.07 feet to an iron rod with
yellow plastic cap stamped "▇▇▇▇ Assoc"; thence South 87 DEG. 53'32" East,
parallel with the South right-of-way line of said SE Washington Street, a
distance of 6.10 feet; thence North 64 DEG. 19'08" East, 63.36 feet; thence
South 87 DEG. 53'32" East, parallel with said South right-of-way line, a
distance of 55.17 feet; thence North 2 DEG. 03'28" East parallel with said East
right-of-way line, a distance of 204.53 feet to an iron rod with yellow plastic
cap stamped "▇▇▇▇ Assoc" in the South right-of-way line of said SE Washington
Street; thence North 87 DEG. 53'32" West, along said South right-of-way line, a
distance of 117.35 feet to the Point of Beginning.
PARCEL I-A (PLAZA 205):
A tract of land situated in the Northwest one-quarter of Section 3, Township 1
South, Range 2 East of the Willamette Meridian, in the City of Portland, County
of Multnomah and State of Oregon, being more particularly described as follows:
Beginning at the Southwest corner of that certain tract of land conveyed to
▇▇▇▇▇▇ ▇▇▇▇▇ by Deed recorded September 19, 1939 in Book 514, Page 316, Deed
Records, said County, said point being in the East line of that certain tract of
land conveyed to Pay Less Drug Stores by Deed Recorded November 16, 1968 in Book
650, Page 1286, Deed Records, said County; thence South 2 DEG. 04'00" West along
said East line, a distance of 419.46 feet to the Southeast corner of that
certain tract of land conveyed to First Union Real Estate Equity and Mortgage
Investment by Deed Recorded August 4, 1980 in Book 1459, Page 1389, Deed
Records, said County; thence South 57 DEG. 57'15" West, along the Southeasterly
line thereof, a distance of 318.36 feet to the most Southerly corner of said
First Union tract and a point in the Northeasterly right-of-way line of SE
Cherry Blossom Drive (Road No. 3143 - 80 feet wide); thence North 57 DEG. 43'32"
West, along said right-of-way line, a distance of 140.99 feet to a point of
tangent curvature; thence Northwesterly, continuing along said right-of-way line
on the arc of a 686.20 foot radius curve to the right, through a central angle
of 59 DEG. 47'00", an arc distance of 715.99 feet (the chord of which bears
North 27 DEG. 50'02" West, 683.95 feet), to a point of tangency in the East
right-of-way line of SE 103rd Drive (Road No. 4020 - 60 feet wide); thence North
2 DEG. 03'28" East, along said right-of-way line, a distance of 10.98 feet to an
iron rod with yellow plastic cap stamped "▇▇▇▇ Assoc"; thence South 87 DEG.
53'32" East, parallel with the South right-of-way line of SE Washington Street
(Road No. 4022 - 62 feet wide), a distance of 6.10 feet; thence North 64 DEG.
19'08" East, 63.36 feet; thence South 87 DEG. 53'32" East, parallel with said
South right-of-way line, a distance of 55.17 feet; thence North 2 DEG. 03'28"
East, parallel with the East right-of-way line of SE 103rd Drive, a distance of
204.53 feet to an iron rod with yellow plastic cap stamped "▇▇▇▇ Assoc" in the
South right-of-way line of said SE Washington Street; thence North 87 DEG.
53'32" East along said right-of-way line, a distance of 390.11 feet to the most
Northerly Northeast corner of said First Union Tract; thence South 2 DEG. 06'28"
West, along the East line thereof, a distance of 310.28 feet to an angle point
therein; thence South 87 DEG. 53'32" East, a distance of 219.16 feet to the
point of Beginning.