EXHIBIT 10.86
POST CLOSING AND INDEMNITY AGREEMENT
THIS POST CLOSING AND INDEMNITY AGREEMENT ("AGREEMENT") is dated this 5th
day of March, 2004, by and among Inland Western Euless Limited Partnership, an
Illinois limited partnership ("PURCHASER") and HERITAGE TOWNE CROSSING, L.P., a
Texas limited partnership (hereinafter referred to as "SELLER), in connection
with the acquisition of Heritage Towne Crossing Shopping Center in Euless, Texas
(referred to as the "PROPERTY" as defined in that Letter Agreement dated January
8, 2004, as amended ("CONTRACT") by and between Seller and Inland Real Estate
Acquisitions, Inc. ("INLAND").
WHEREAS, Purchaser is the successor to Inland with respect to the Contract;
and
WHEREAS, in connection with the acquisition of the Property from Seller,
Purchaser requires a confirmation of Seller to complete certain obligations
following the closing (the "CLOSING") for the acquisition of the Property by
Purchaser; and it being acknowledged that Purchaser would not complete its
purchase of the Property without Seller's execution of this Agreement; and
WHEREAS, Purchaser has made various inquiries regarding the Property during
its due diligence in connection with its acquisition of the Property;
WHEREAS, in connection with such inquiries, in order to confirm the status
of various issues that Purchaser deems relevant to its acquisition, Purchaser
has requested certain documents and confirmations from Seller and/or third
parties, but Seller has been unable to either supply a document confirming such
matters, or has been unable to complete a matter due to time constraints;
WHEREAS, in order to proceed to Closing, Purchaser requires Seller to make
certain undertakings, to obtain documents regarding or confirming certain
issues, and/or certifications as to the state of facts regarding such issues,
and further, Purchaser requires that Seller indemnify and hold harmless
Purchaser, and each of its successors, assigns, officers, directors, employees
and lenders (each an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED
PARTIES") harmless from any loss, cost or expense incurred by any Indemnified
Party, including costs and attorneys fees, ("LOSS") as a result of either
Seller's failure to obtain the required documents, Seller's failure to timely
complete its obligations as set forth herein, or any Loss that results from a
certification hereafter being incorrect.
NOW, THEREFORE, for good and valuable consideration including the mutual
promises contained herein, the parties hereto agree as follows:
1. NAIL SPA. Seller will use best efforts to obtain and deliver to
Purchaser, within thirty (30) days following the date of this Agreement, an
original of a fully executed Mutual Release and Termination of Lease, according
to the form submitted by Seller to Purchaser on March 3, 2004, which terminates
that lease entered into by that tenant and Seller, dated October 30, 2001.
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2. TACO ▇▇▇▇ ESTOPPEL CERTIFICATE. Seller will, within thirty (30) days
following the date of this Agreement, obtain and deliver to Purchaser an
estoppel certificate from Taco ▇▇▇▇, according to the form of estoppel
certificate previously submitted by Purchaser to Seller, or other form of
estoppel certificate reasonably acceptable to Purchaser.
3. APPRAISAL. Seller will use commercially reasonable efforts to cause
Ryan, Harmann, ▇▇▇▇▇▇▇ company to deliver to Purchaser an complete appraisal of
the Property as more fully described in that correspondence from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
to ▇▇▇▇▇ ▇▇▇▇, dated March 3, 2004, and to pay all costs of such appraisal.
4. ENVIRONMENTAL REPORT. Seller will use commercially reasonable efforts
to cause ▇▇▇▇ Engineering Group to deliver to Purchaser an complete Phase I
Environmental Report and reliance letter for the Property as more fully
described in that correspondence from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇ ▇▇▇▇▇▇, dated
March 3, 2004, and to pay all costs of such Phase I Environmental Report and
reliance letter.
5. INNOCENT OWNER PROTECTION LETTER. Seller will obtain and deliver to
Purchaser a photocopy of that letter from the Texas Council on Environmental
Quality ("TCEQ"), relating to ▇▇▇ ▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Crossing
Addition (which parcel is currently owned by Chick-Fil-A), approving the
application of Seller and Chick-Fil-A for Innocent Owner Protection ("IOP") with
respect to such parcel. Seller will deliver this letter to Purchaser within a
reasonable time following Seller's receipt of such letter from TCEQ.
6. ABANDONMENT OF TRINITY RIVER AUTHORITY. (a) Seller will, within one
hundred twenty (120) days following the date of this Agreement, obtain and
deliver to Purchaser an Abandonment of Easement Agreement, in recordable form,
executed by Trinity River Authority of Texas ("TRA"), pursuant to which TRA
permanently relinquishes and abandons certain portions of that easement for
wastewater transmission created by the document recorded as Volume 9080, Page
2116, Deed Records of Tarrant County, Texas (the "EASEMENT"). The portions of
the easement to be abandoned are those portions crosshatched on that Plat
recorded at Cabinet A, Slide 7743, Deed Records of Tarrant County, Texas, and
designated as "abandoned per Instr. No. D20201361" (the "ABANDONED PORTIONS");
and (b) Seller will, within thirty (30) following the date of this Agreement,
obtain and deliver to Purchaser: a letter from TRA, confirming that there are no
pipes or other conduit within the Abandoned Portions which are currently being
used for transmission of wastewater. If Seller fails to provide the documents
required by this paragraph 6(a) and (b) within the time frames specified above,
then Purchaser shall be entitled to obtain such documentation at Seller's sole
cost and expense.
7. FURTHER ASSURANCES. Seller and Purchaser agree to cooperate with each
other following the closing to confirm any matter and execute any document
reasonably required by the other party in furthering of the Closing and
consistent with the requirements of the Contract.
8. DEFINED TERMS. All capitalized terms which are not expressly defined
herein shall have the meaning as set forth in the Contract.
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9. INDEMNIFICATION. Seller agrees to indemnify and hold harmless
Purchaser, and its successors, assigns, officers, directors, employees and
lenders (each an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED
PARTIES") harmless from any loss, cost or expense incurred by any Indemnified
Party, including costs and attorneys fees, ("LOSS") as a result of either
Seller's failure to obtain the required documents, or any Loss that results from
a certification hereafter being false or misleading in any material respect.
10. MISCELLANEOUS. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and
permitted assigns and may be executed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the
first date written above.
(SIGNATURE PAGE FOLLOWS)
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SIGNATURE PAGE FOR
POST CLOSING AND INDEMNITY AGREEMENT BETWEEN
HERITAGE TOWNE CROSSING, L.P.
AND INLAND WESTERN EULESS LIMITED PARTNERSHIP
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed as of the day and year first above written.
PURCHASER:
INLAND WESTERN EULESS LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Inland Western Euless GP, L.L.C., a Delaware limited
liability company
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Asst. Secretary
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SELLER:
HERITAGE TOWNE CROSSING, L.P., a Texas limited
partnership
By: HTC Development, Inc., a Texas Corporation, its
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
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