Exhibit 10.32
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
POST CLOSING AND INDEMNITY AGREEMENT
This Post Closing and Indemnity Agreement ("Agreement") is dated as of this
31st day of December, 2003 by and among Inland Southeast Xxxx'x Xxxxx, L.L.C., a
Delaware limited liability company ("Purchaser") and Fourth Quarter Properties
IV, Inc., a Georgia corporation, and Xxxxxx Enterprises, Inc., a Georgia
corporation (collectively, "Seller"), in connection, with the acquisition of
Kings Grant Shopping Center (the "Property") as defined in that Letter of
Agreement dated November 30, 2001, as amended, (the "Contract") by and between
Seller and Inland Real Estate Acquisitions, Inc. ("IREA").
WHEREAS, IREA assigned its interest in the Contract to Purchaser by
assignment dated as of December 31, 2003.
WHEREAS, Purchaser and/or IREA 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 asserted that a certain state of facts exist which may be
inconsistent with what is stated in the documents reviewed by Purchaser, 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
Sellers' failure to obtain the required documents, 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:
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
1. ROOF WARRANTIES
1.1 Seller agrees to pay for, or at Purchaser's sole option, complete
various roof repairs at Seller's sole cost and expense, that are necessary for
there to be an effective transfer of the existing roof warranties to Purchaser
and Seller also agrees to execute all documents and pay all transfer fees
necessary to transfer such roof warranties to Purchaser. All work will be
completed and sums paid and assignment completed not later than sixty (60) days
after the date hereof.
2. TENANT IMPROVEMENT ALLOWANCES AND LEASING COMMISSIONS AND FREE RENT
PERIODS.
2.1 Seller represents and warrants that Seller, at its sole cost and
expense, agrees to pay and satisfy all tenant improvement allowances, and
leasing commissions, and free rent (including reimbursable expenses) period
rental payments due and payable in connection with any lease at the Property
signed as of the date of this Agreement and also including any leases signed
after the date of this Agreement in regard to any space that is subject to an
amount Purchase Price adjustment.
3. PANERA/JARED'S/RADIO SHACK ISSUE.
3.1 JARED'S/PANERA BREAD/RADIO SHACK. Seller (and Xxxx Xxxxxx,
individually) hereby agree to: (i) pay, on or before applicable due dates, all
costs that relate in any way to (collectively, the "Indemnified Construction
Matters"); (a) the testing required to further identify the soil and
construction issues which are displayed as settling, movement and interior
separation of the Jared's and Panera Bread and Radio Shack premises
(collectively, the "Affected Tenants") and retaining wall (including, by way of
illustration and not limitation, the issues described by the VEI (as hereinafter
defined) letter addressed to Xxxxxx Enterprises, Inc. dated November 8, 2003)
that exist (or are reasonably related to conditions that exist) as of the date
hereof, together with the soil and construction issues in regard to same which
first exist from and after the date hereof (collectively, the Settling"), and
(b) the design (including architect's fees), excavation, permitting,
contracting, construction (including by way of illustration and not limitation:
wall, foundation and structure reconstruction, and soil/footings reinstallation
and drainage systems), which may be recommended (if any) by the Contractors (as
hereinafter defined) (and as reasonably approved by Purchaser), to correct the
Settling (the "Corrective Action"), and (ii) pay, on or before applicable due
dates, all sums that may become due and payable pursuant to those contracts
between Seller (and Seller related parties), and Valentine Engineering,
Incorporated ("VEI") and Corps Technologies, and/or QORE Property Sciences,
and/or S&ME Engineering, and any and all costs and expenses incurred by Seller
and Seller related parties, and Purchaser and its lender, for such additional
consultants, architects, and contractors (whether hired by Seller, Purchaser, or
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
Purchaser's lender) that relate to the Settling and the Corrective Action
(collectively, the "Contractors"), and (iii) to Purchaser upon demand any and
all sums due and owing from the affected tenants from time to time pursuant to
the terms of their respective Property leases, to the extent not paid to
Purchaser by the affected Tenants by reason of the Settling and the Corrective
Action, Seller (and Xxxx Xxxxxx, individually) hereby further agree to defend,
indemnify, protect and hold Purchaser and its managers, members, officers,
directors, employees, stockholders, assigns, representatives, successors and
affiliates, and lenders (existing from time to time) (individually, a "Purchaser
Indemnified Party" and collectively, "Purchaser Indemnified Parties") harmless
from, against and in respect of all liabilities, losses, claims, damages,
punitive damages, causes of action, lawsuits, administrative proceedings
(including informal proceedings), investigations, audits, demands, assessments,
adjustments, judgments, settlement payments, deficiencies, penalties, fines,
Interest (including interest from the date of such damages) and costs and
expenses (including, without limitation, reasonable attorney's fees actually
incurred at standard hourly rates in the location in which fees are incurred and
disbursements of every kind, nature and description) suffered, sustained,
incurred or paid by any of the Purchaser Indemnified Parties in connection with,
resulting from or arising out of, directly or indirectly the Indemnified
Construction Matters, Notwithstanding the foregoing, Seller's and Xxxx Xxxxxx'x
obligation to defend, indemnify, protect and hold the Purchaser Indemnified
Parties harmless in accordance with the preceding sentence shall expire one (1)
year following "Remediation;" provided, however, that such obligations of Seller
and Xxxx Xxxxxx shall survive with respect to any specific and documented claim
asserted by a Purchaser Indemnified Party on or before the expiration of such
one (1) year period. For purposes hereof, "Remediation" shall be defined as (A)
the completion of the Corrective Action as certified to Purchaser and its lender
by VEI, the Corrective Action general contractor, and the project architect; and
(B) delivery to Purchaser by the Affected Tenants an acceptable estoppel
certificate (that does not raise any issues in regard to the Indemnified
Construction Matters).
4. TENANT AND SITE RELATED MATTERS.
4.1 Seller and Xxxx Xxxxxx individually, shall, jointly and
severally, indemnify, defend, and hold harmless the Indemnified Parties from and
against any and all losses, liabilities, damages, claims, injunctions, suits,
proceedings, disbursements or expenses (including, without limitation,
reasonable attorneys' and experts' fees and disbursements and court costs) of
whatever kind or nature, and whether or not incurred in connection with any
judicial or administrative proceedings, which may be imposed upon, suffered by,
incurred by, or asserted against the Indemnified Parties that directly or
indirectly arise out of or in connection with any matter, circumstance, injury
or damage that arises by reason of: (i) the matters raised by the Panera Bread
estoppel dated as of December 16, 2003, and (ii) satisfaction of the
construction and parking installation requirements described by the Panera Bread
lease, and (iii) any issue arising from the delivery by Jared's of its estoppel
at such time as an estoppel is received from Jared's by Purchaser, and (iv) all
unfulfilled covenants and obligations of Seller pursuant to the terms of that
certain
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
Reciprocal Easement Agreement entered into by and between Seller and the City of
Concord, NC, dated February 11, 1999 and recorded as Document No. 2468/71.
5. REMEDIES.
5.1. The remedies and indemnities set forth herein are in addition to all
rights of IREA and Purchaser as are set forth in the Contract and all rights of
set off contained therein shall include any failure by the Seller to complete
the obligations hereunder. The obligations of each Seller are joint and several
and each such party shall remain fully liable for the full amount of any such
parties' obligations.
6. FURTHER ASSURANCES.
6.1. 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.
7. DEFINED TERMS.
7.1. All capitalized terms which are not expressly defined herein shall
have the meaning as set forth in the Contract.
8. INDEMNIFICATION.
8.1. Seller agrees to indemnify and hold harmless the Indemnified Parties
from and against any loss, cost or expense incurred by any Indemnified Party,
including costs and attorneys fees, ("Loss") as a result of Sellers' failure to
obtain the required documents or complete its obligations under this Agreement,
or any Loss that results from a certification hereafter being false or
misleading in any material respect.
9. MISCELLANEOUS.
9.1. This Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and permitted assigns.
9.2. Any claim or dispute that arises out of or in relation to this
Agreement among the parties shall be settled by final binding arbitration. Any
arbitration conducted hereunder shall be conducted in accordance with the rules
of the American Arbitration Association ("AAA") before three (3) arbitrators,
with Seller and Purchaser each being entitled to select one arbitrator approved
by the AAA, which two arbitrators shall then select the third arbitrator. Any
award rendered by the arbitrators will be conclusive and binding upon the
parties hereto, and judgment may be entered
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
upon the award in any court having jurisdiction thereof. The obligation of the
parties to resort to arbitration shall not prevent the parties from seeking
temporary injunctive relief from courts of competent jurisdiction.
PLEASE SEE FOLLOWING PAGE FOR SIGNATURES
XXXX'X XXXXX POST CLOSING AND INDEMNITY AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective the first date written above.
SELLERS: PURCHASER:
XXXXXX ENTERPRISES, INC., a INLAND SOUTHEAST KINGS GRANT,
Georgia corporation L.L.C., a Delaware limited liability
company
By: Inland Western Retail Real Estate
Trust, Inc.,
a Maryland corporation
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxxx Its: Xxxxx Xxxxx
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Title: President Title: Authorized Agent
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FOURTH QUARTER PROPERTIES IV, Inc., a
Georgia corporation
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx individually, solely for
the purpose of making the indemnities
described in section 1.1, 3.1 and 4.1
of this Agreement.
