Exhibit 10.405
BED, BATH & BEYOND PLAZA
AGREEMENT TO PURCHASE
IPSC ASSOCIATES, L.L.C.
AND
INLAND REAL ESTATE ACQUISITIONS, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE I.........................................................DEFINITIONS 1
1.1..........................................................Definitions 1
ARTICLE II..................................................PURCHASE AND SALE 5
2.1....................................................Purchase and Sale 5
ARTICLE III....................................................PURCHASE PRICE 5
3.1.......................................................Purchase Price 5
ARTICLE IV....................................................CLOSING MATTERS 6
4.1...............................................................Survey 6
4.2................................................................Title 7
4.3..................Possession, Prorations and Expenses, and New Leases 7
4.4..............................................................Closing 10
ARTICLE V..........................................................INSPECTION 12
5.1...........................................................Inspection 12
5.2..........................................................Termination 13
ARTICLE VI................................DESTRUCTION, DAMAGE OR CONDEMNATION 14
6.1................................................Destruction or Damage 14
6.2.........................................................Condemnation 15
6.3.....................................Casualty and Rent Loss Insurance 15
ARTICLE VII............................COVENANTS, REPRESENTATIONS, WARRANTIES 15
7.1..................................................Covenants of Seller 15
7.2.............................Representations and Warranties of Seller 17
7.3 .........................Representations and Warranties of Purchaser 18
7.4...........................................................Deliveries 19
7.5.........................................................Construction 20
7.6............................................................Indemnity 21
ARTICLE VIII....................DEFAULT, CONDITIONS PRECEDENT AND TERMINATION 22
8.1..........Conditions to Purchaser's Obligations and Default by Seller 22
8.2..........Conditions to Seller's Obligations and Default by Purchaser 24
ARTICLE IX............................................................NOTICES 24
9.1..............................................................Notices 24
ARTICLE X................................................ADDITIONAL COVENANTS 26
10.1............................Entire Agreement. Amendments and Waivers 26
10.2..................................................Further Assurances 26
10.3................................................Survival and Benefit 26
10.4..............................Assignment; No Third Party Beneficiary 26
10.5...........................................................Brokerage 26
10.6......................................................Interpretation 27
10.7......................................................Effective Date 28
ARTICLE XI.........................................LEASING DEPOSIT; TI ESCROW 28
11.1.....................................................Leasing Deposit 28
11.2................................Disbursements of the Leasing Deposit 28
11.3...........................................................TI Escrow 29
11.4.........................................................Shop Leases 29
EXHIBITS
A - Description of Real Property
B - Form of Escrow Agreement
C - Assignment and Assumption of Ground Lease
D - 1 - Schedule of Plans
D - 2 -List of Guaranties and Warranties
D - 3 -Construction Schedule
D - 4 - List of Service Contracts
E - Form of Estoppel Certificate
E - 1 -Form of SNDA
E - 2 REA Estoppel
E - 3 Ground Lease Estoppel
F - Anchor Leases and Anchor Tenant Spaces
G - Project Pro Forma
H - Copy of Rent Roll
I - General Contractor Reliance Letter
J - Leasing Status Schedule
K-- Initial Due Diligence Checklist
L-- Final Due Diligence Checklist
M - Audit Letter
AGREEMENT TO PURCHASE
This AGREEMENT ("AGREEMENT") is made as of the 24TH day of MARCH, 2004, by
and between IPSC ASSOCIATES, L.L.C., a Florida limited liability company
("SELLER"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation,
its successors and/or assigns ("PURCHASER").
RECITALS
A. Seller is the Lessee pursuant to the Ground Lease (as hereinafter
defined) of that certain land ("LAND") described on EXHIBIT "A" attached hereto
comprising approximately 10 acres of land, located at the southeast corner of
the intersection of Xxxxxxxxx 000xx Xxxxxx and Xxxxxxxxx 00xx Xxxxxx, Xxxxx,
Xxxxxxx. Seller intends to construct certain shopping center improvements
("IMPROVEMENTS") on the Land of approximately 97,458 square feet pursuant to the
Plans (as hereinafter defined) and the Leases (as hereinafter defined) to be
known as the Bed, Bath & Beyond Plaza.
B. Seller desires to sell and Purchaser desires to purchase the Property
(as hereinafter defined) upon and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
agree as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINITIONS. When used herein, the following terms shall have the
respective meanings set forth opposite each such term:
Agreement: This Agreement to Purchase including the Exhibits attached
hereto which are by this reference incorporated herein and
made a part hereof.
Anchor Leases: The Leases listed on Exhibit "F" attached hereto.
Anchor Tenants: Bed, Bath & Beyond; Office Depot; Pier I Imports;
Fuddruckers; Starbucks; Sprint; Party City; CargoKids;
Xxxxx Beauty
Anchor Tenant
Premises: The addresses of Anchor Tenants set forth on Exhibit "F"
attached hereto.
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Assignment and
Assumption of
Ground Lease: That certain Assignment and Assumption of Ground Lease in
the form of EXHIBIT "C" attached hereto to be executed and
delivered to Purchaser at Closing, assigning Seller's
rights and interest in, to, and under the Ground Lease.
Base Rent Divisor: 0.10174
Closing: The consummation of this Agreement.
Closing Date: September 1, 2004 so long as both of the following have
occurred: (i) the Occupancy Condition has been satisfied;
and (ii) the Improvements have been completed in
accordance with Section 7.5 hereof and the remaining
obligations of the Seller under Section 7.5 have been
satisfied unless extended in accordance with the
provisions of Section 8.1(a).
Deposit: The sum of $500,000.00. The Deposit shall be held and
applied by Escrowee as provided in EXHIBIT "B" attached
hereto.
Effective Date: The date upon which the last of Seller and Purchaser have
executed and delivered this Agreement.
Escrowee: First American Title Insurance Company in Chicago.
Ground Lease: That certain ground lease dated January 31, 2002 by and
between Seller, as lessee thereunder, and INTERNATIONAL
PLAZA ASSOCIATES, III, LTD., as lessor thereunder, whereby
Seller leases the Land
Hazardous
Substances: Toxic or hazardous material or waste regulated by any
Legal Requirement, including, but not limited to,
asbestos, polychlorinated biphenyls and petroleum
products.
Leases: The Anchor Leases, the Shop Leases, any lease shown on the
Rent Roll not included in the foregoing, and those leases
executed hereafter in accordance with Section 11.4 and
which are in existence as of the Closing Date.
Lease-Up Event: Shall have the meaning set forth in Section 11.2 of this
Agreement.
Leasing Deposit: Shall have the meaning set forth in Section 11.1 of this
Agreement.
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Leasing Guidelines: The guidelines set forth on Exhibit "M" attached hereto
shall govern all Leases that are entered into by Seller
for the Property after the Effective Date of the Agreement
in accordance with the provisions of this Agreement.
Legal Requirements: All laws, statutes, codes, acts, ordinances, judgments,
decrees, injunctions, rules, regulations, permits,
licenses, authorizations, directions and requirements of
all governments and governmental authorities having
jurisdiction over the Real Property and the operation of
the Improvements.
Occupancy
Condition: That (i) the tenant under the applicable Lease has taken
occupancy of the premises demised under such Lease, has
accepted the improvements being constructed by the
landlord under such Lease, has opened for business and has
commenced paying rent under such Lease, all of which shall
be evidenced in an estoppel certificate in the form
required under such Lease (or if no form is required, then
in the form set forth in EXHIBIT "E" attached hereto) and
(ii) the Improvements (including interior tenant
improvements) under the applicable Lease have been
completed in accordance with the terms of such Lease,
except for any mechanical adjustments or minor details of
construction or decoration or other items commonly
recognized in the construction industry as "punch list"
items, and a certificate of occupancy has been issued for
each such tenant improvements.
Outside Date: Shall have the meaning set forth in Section 8.1 of this
Agreement.
Permitted Title
Exceptions: The Leases, Ground Lease, and exceptions to title which
Purchaser shall approve in writing or be deemed to have
approved pursuant to the terms of this Agreement.
Personal Property: Those items of personalty, if any, which are owned by
Seller and located at the Property and which will be
conveyed to Purchaser at Closing by a Xxxx of Sale (the
"XXXX OF SALE") containing no warranties, whether express
or implied, except a warranty of title free of any lien or
encumbrance.
Plans: The plans and specifications for the construction of the
Improvements being performed by Seller as set forth on
EXHIBIT "D-1" attached hereto.
Pre Closing
Deliveries: Shall have the meaning set forth in Section 7.4.
Project Pro Forma: The budget for the operation (projected income/expenses)
of the Improvements attached hereto as EXHIBIT "G", which
has been approved by Purchaser.
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Property: The Real Property, Personal Property, Service Contracts,
Warranties, and the Leases.
Proration Date: Shall have the meaning set forth in Section 4.3 of this
Agreement.
Purchase Price: The consideration payable by Purchaser to Seller for the
Property, as provided in Article III.
Real Property: Collectively, the Land and Improvements.
Rent Roll: The list of Leases in existence as of the date of said
list, which list as of the date hereof is attached hereto
as EXHIBIT "H" and contains the monthly rental charges,
leased area, term and options, if any, with respect to
such leases, and the pro Forma monthly rental charges with
respect to the Vacant Space.
Service Contracts: Those contracts, agreements and leases of equipment
relating to the servicing, operation, management and
maintenance of the Property which are listed on EXHIBIT
"D-4" attached hereto.
Shop Leases: The leases for Shop Space (other than the portion of the
Improvements subject to the Anchor Tenant Leases) with
tenants that are not affiliated with Seller, each of which
tenant shall be subject to the approval of Purchaser if
such Shop Lease is not an existing Shop Lease, which
approval shall not be unreasonably withheld, provided the
Lease complies with the criteria set forth on the Leasing
Guidelines.
Shop Space: Those portions of the Improvements that are subject to a
Shop Lease, consisting of approximately 14,759 square feet
in the aggregate.
TI Escrow: Shall have the meaning set forth in Section 11.3 of this
Agreement.
Title Commitment: A commitment for a Leasehold Title Insurance Policy for
the Real Property issued by the Title Insurer in the full
amount of the Purchase Price, covering title to the Real
Property, dated on or after the date hereof, showing
Seller as lessee of the Real Property, subject only to the
Permitted Title Exceptions.
Title Insurer: First American Title Insurance Company.
Unpermitted Title
Exceptions: Shall have the meaning set forth in Section 4.2 of this
Agreement.
Updated Survey: An update of the boundary survey delivered by Seller
pursuant to Section 7.4 hereof, and certified to Purchaser
and/or its assignee, meeting the Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys jointly
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adopted by ALTA, ACSM and NSPS in 1999 including all Table
A optional survey responsibilities and specifications, and
acceptable to Purchaser and Title Insurer, dated not more
than thirty (30) days prior to the date of delivery, which
shall set forth, among other things, the following: (i)
the legal description of the applicable portion of the
Property; (ii) the location of all Improvements, including
parking areas and number of spaces, curb cuts and the
means of ingress and egress from public roads and
highways; (iii) the location of all utilities servicing
the applicable portion of the Property, including sewer,
water, gas, electric, telephone and any other utilities
serving the applicable portion of the Property to the
point of connection with the public system; (iv) the
location of all easements affecting the applicable portion
of the Property or benefiting the applicable portion of
the Property, and any building and/or set-back lines; and
(v) any encroachments of the Improvements onto adjacent
property or onto easements within the applicable portion
of the Property, and any encroachments of improvements on
adjacent property onto the applicable portion of the
Property.
Vacant Space: Shop Space that is either: (i) not subject to a Lease; or
(ii) subject to a Lease but for premises as to which the
Occupancy Condition has not yet been satisfied.
Warranties: Those guarantees and warranties described on EXHIBIT "D-2"
attached hereto.
ARTICLE II.
PURCHASE AND SALE
2.1 PURCHASE AND SALE. Subject to the conditions and on the terms
contained in this Agreement, Purchaser agrees to purchase and acquire from
Seller, and Seller agrees to sell and transfer to Purchaser, the Real Property
by the Assignment and Assumption of Ground Lease, the Leases, Contracts and
Warranties by assignment, and the Personal Property by the Xxxx of Sale.
ARTICLE III.
PURCHASE PRICE
3.1 PURCHASE PRICE.
(a) The purchase price shall be TWENTY MILLION THREE HUNDRED FIFTY
THOUSAND AND 00/100 DOLLARS ($20,350,000.00). Without agreeing thereto or
considering the appropriateness thereof or being bound thereby, Purchaser
acknowledges Seller intends to allocate a value of Twelve Million Three Hundred
Fifty Thousand Dollars ($12,350,000.00) to the Improvements, and a value of
Eight Million Dollars ($8,000,000.00) to the leasehold estate created
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by the Ground Lease. Purchaser agrees to pay to Seller, and Seller agrees
to accept payment of, the Purchase Price as follows:
(i) On the Closing Date, Purchaser shall pay to Seller the
entire Purchase Price, plus or minus adjustments and
prorations as hereinafter provided, by bank wire transfer
of collected federal funds.
(ii) The Deposit shall, following such payment of the Purchase
Price, be refunded to Purchaser.
(b) If the Minimum Rent, collected for the month in which the Closing
occurs, for any Vacant Space is less than the pro forma minimum rent for such
Vacant Space as shown on the Rent Roll attached hereto as Exhibit H, then the
Purchase Price shall be reduced by the amount determined by dividing the
difference in annual minimum rent by the Base Rent Divisor; provided, however,
this provision shall not apply for any rent for a Vacant Space that has been
escrowed in accordance with Section 11.1.
ARTICLE IV.
CLOSING MATTERS
4.1 SURVEY. Following completion of construction of the Improvements, but
no later than forty-five (45) days prior to the Closing Date, Seller shall
deliver to Purchaser, at Seller's cost and expense, the Updated Survey. If the
Updated Survey shows any encroachments on to the Property by improvements
located outside its boundaries or encroachments by buildings or monument signs
principally located on the Property over setback lines, or over easements or
over or onto the property of others or onto any public right-of-way adjacent to
the Property, or if it is apparent that the Property violates existing title
covenants and/or applicable zoning laws or ordinances, or the Updated Survey
shows any other matter which is not shown on the existing Survey that would have
a material adverse effect on the Property, Purchaser shall, within ten (10) days
after receipt of the Updated Survey, notify Seller in writing to that effect
specifying the defects. Seller shall have until thirty (30) days from receipt of
Purchaser's notice specifying the defects in which to cure such defects. If
after said period Seller shall not have cured the defects, or if Seller shall
not have progressed to a point where the defects are certain to be remedied at
or prior to Closing, Purchaser shall have the option of (i) accepting the
condition of the Property as disclosed in the Updated Survey in an "as is"
condition and close without a reduction in the Purchase Price, or (ii) demanding
a refund of the Deposit which Escrowee shall forthwith return to Purchaser and
thereupon Purchaser and Seller shall each be released from all further
liabilities and obligations to each other respecting all matters arising from
this Agreement. Purchaser's option of demanding a refund of the Deposit must be
exercised within ten (10) days after the expiration of Seller's thirty (30) day
period to cure survey defects, otherwise Purchaser shall be deemed to have
waived its uncured objections to defects revealed by the Updated Survey and
agreed to purchase the Property subject to such uncured defects.
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4.2 TITLE.
(a) No later than thirty (30) days following the Effective Date,
Seller shall deliver the Title Commitment to Purchaser together with legible and
complete copies of all documents of record. If the Title Commitment discloses
exceptions to title which are not acceptable to Purchaser ("Unpermitted Title
Exceptions"), then, within ten (10) days from Purchaser's receipt of the Title
Commitment or update thereto, Purchaser must so notify Seller. If Purchaser
fails to so notify Seller within said ten (10) day period, the Title Commitment
will be conclusively deemed to be approved by Purchaser. If, within said ten
(10) day period, Purchaser shall notify Seller of any Unpermitted Title
Exceptions (which notification must specify the Unpermitted Title Exceptions),
Seller shall have thirty (30) days from the date of Purchaser's notice to have
such exceptions removed from the Title Commitment and provide evidence thereof
to Purchaser, and if Seller fails to have such exceptions removed, or insured
over in a manner satisfactory to Purchaser, Purchaser may elect, within ten (10)
days after the expiration of Seller's thirty (30) day cure period to (i)
terminate this Agreement without liability on the part of any party thereafter
(in which event the Deposit shall be promptly returned to Purchaser), or (ii)
accept title subject to such Unpermitted Title Exceptions without any diminution
of the Purchase Price. Purchaser's failure to make any election within said ten
(10) day period shall be conclusively deemed to mean that Purchaser has elected
the option contained in subsection (i) of this Section 4.2. On the Closing Date,
at the expense of Seller as set forth in Section 4.3(d) hereof, Seller shall
cause the Title Insurer to issue a leasehold title insurance policy or prepaid
commitment therefor pursuant to and in accordance with the Title Commitment
insuring a leasehold interest in the Real Property in Purchaser or its designee
as of the Closing Date, subject only to the Permitted Title Exceptions and such
other exceptions as Purchaser may approve (or which may be deemed to have been
approved). Such leasehold title insurance policy or prepaid commitment shall
contain a contiguity endorsement, survey endorsement, and such other
endorsements as may be available under applicable law and requested by
Purchaser, including extended coverage and waiving off of new construction. If
Purchaser shall make objection to the Title Commitment (as described in this
Section 4.2) and the Closing Date was to occur prior to the time each party was
able to exercise its rights under Section 4.1. and/or 4.2, then the Closing Date
will be extended to a date which is five (5) days subsequent to the latest date
for notice, objection and remedy permitted by Section 4.1 and 4.2.
(b) Notwithstanding anything to the contrary contained in this
Section 4.2 or elsewhere in this Agreement, Seller shall not be obligated to
bring any action or proceeding or otherwise to pay or incur any substantial
expense in order to eliminate any Unpermitted Title Exceptions except that
Seller on or before the Closing Date shall satisfy mortgages and mechanic's
liens against Seller secured by Property or other liens created by Seller which
may be satisfied by the payment of liquidated amounts.
4.3 POSSESSION, PRORATIONS AND EXPENSES, AND NEW LEASES.
(a) Sole and exclusive possession of the Property, subject only to
the rights of the tenants under the Leases, shall be delivered to Purchaser on
the Closing Date.
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(b) If the balance of the Purchase Price is deposited in immediately
available funds with the Title Insurer by 2:00 PM (EST) on the Closing Date, as
required by Section 4.4(d) hereof, all prorations will be computed as of the end
of the day immediately prior to the Closing Date ("PRORATION DATE"). If
Purchaser fails to deposit the balance of the Purchase Price by 2:00 PM (EST) on
the Closing Date, as aforesaid, and the Closing occurs on the Closing Date, the
Proration Date shall be concurrent with the Closing Date and all prorations will
be calculated as of the end of the day on the Closing Date.
(c) "Fixed Rent", "Percentage Rent" and Tenant "CAM" and other
expense contributions to be made by tenants shall be prorated as follows:
(i) Fixed Rent - Fixed Rent for the month in which the Closing
occurs will be prorated as of the Proration Date. Fixed
Rent relating to any period prior to the month in which
the Closing occurs, which is delinquent on the Proration
Date, will not be prorated. All such arrearages of Fixed
Rent unpaid on the Proration Date will remain the sole and
exclusive property of Seller after Closing, provided,
however, if, after Closing, Seller shall receive any such
delinquent Fixed Rent, Seller will remit to Purchaser that
portion of such delinquent Fixed Rent that is attributable
to the period after the Proration Date, if any. Seller
shall retain all right, title, power and authority to
enforce payment thereof after Closing, except that Seller
will not have the right to terminate the Lease of a
delinquent tenant after Closing due to such delinquency.
If, after Closing, Purchaser or its designee shall receive
any delinquent Fixed Rents, Purchaser may apply such
payments as follows: FIRST, to rent delinquencies which
relate to any period after the Proration Date, SECOND, to
rent delinquencies for the month of Closing, and FINALLY,
any balance shall be remitted to Seller.
(ii) Percentage Rent - Percentage Rent which is due but unpaid
at Closing and accrued Percentage Rent not yet payable at
Closing will not be prorated. If, after Closing, however,
Purchaser receives any payment of percentage rent which
relates in any part to sales made prior to the Proration
Date, Purchaser shall immediately remit Seller's share
thereof to Seller.
(iii) Tenant CAM and other expense contributions-For purposes
hereof, the term "Expenses" shall mean all common area
maintenance costs, International Corporate Park
Association assessments, real estate tax passthroughs
(both ad valorem and non-ad valorem taxes) and other
operating expenses of the Property. All payments by the
tenant to the
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landlord under the Leases for Expenses shall be prorated
in the same manner set forth in Section 4.(3)(c)(i):
In addition, security deposits, personal property taxes, general and special
real estate and other ad valorem taxes and assessments and other state or city
taxes, fees, charges and assessments affecting the Property, prepaid expenses,
utility charges and deposits, if any, and all other customarily proratable items
shall be prorated as of the Proration Date on the basis of the most recent
ascertainable amounts of or other reliable information in respect to each such
item of income and expense and the net credit to Purchaser or Seller shall be
paid in cash or as a credit or debit against the Purchase Price. Purchaser shall
receive a credit for all security deposits of tenants in the amount thereof as
required by the terms of their respective leases. The foregoing notwithstanding,
all prorations and reprorations for real estate taxes will be based upon 110% of
the 2004 assessed value for the Property times the 2003 millage rate used by
Miami-Dade County to determine the 2003 real estate taxes for the Property, at
the maximum available discount for early payment. In the event that any Lease
requires the tenant thereunder to pay any portion of real estate taxes (upon
presentation of the invoice therefor, as opposed to estimated monthly payments),
the credit in favor of Purchaser for accrued real estate and other ad valorem
taxes will be reduced by an amount equal to such reimbursement obligation. If
any general or special assessment (as contrasted to ad valorem taxes) is payable
in installments, only the current installment will be prorated and all
subsequent installments will be the obligation of Purchaser. Real estate taxes
will be reprorated (and such reproration will be a final reproration) within
thirty (30) days after receipt of the tax xxxx for year of Closing. Certified
liens levied by any governmental authority against the Property as of the
Closing Date shall be paid by Seller on or before the Closing Date. Pending
liens levied by any governmental authority against the Property as of the
Closing Date shall be assumed by Purchaser; provided, however, that if the
improvement for which any such pending lien was levied was substantially
completed as of the Closing Date, such pending lien shall be treated as a
certified lien and paid by Seller.
(d) Seller shall pay all title charges and premiums required to
fulfill the obligations under Section 4.2 hereof, one-half (1/2) of the escrow
charges, all survey charges required to fulfill the obligations under Section
4.1 hereof, the cost of all transfer taxes due under applicable law with respect
to the assignment of the Ground Lease and all rollback taxes, if any. Purchaser
shall pay one-half (1/2) of the escrow charges. The parties shall each be solely
responsible for the fees and disbursements of their respective counsel and other
professional advisers.
(c) Seller shall be obligated to pay all tenant allowances, leasing
commissions, rebates or other tenant improvement costs which are the
responsibility of the landlord under, or are due in connection with, the Leases
(including, without limitation, any leasing commissions which may be payable in
connection with any extension of the Leases). In addition, Seller covenants
that, as of the Closing Date, there shall be no free rent or other rent
concessions due any tenant of the Property.
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4.4 CLOSING.
(a) The Closing of the transaction contemplated hereby shall commence
at 10:00 a.m. on the Closing Date at the Chicago, Illinois office of the Title
Insurer (with cooperation of the Title Insurer's office or agent in the state in
which the Property is located) or on such other date, time and place as the
parties may mutually agree. Notwithstanding, Seller and Purchaser agree that the
Closing may be held through mutually satisfactory escrow arrangements.
(b) Not later than the Closing Date, Seller shall deposit in the
escrow the following:
(i) The Assignment and Assumption of Ground Lease, executed by
Seller and consented to by the lessor under the Ground
Lease;
(ii) An assignment of all of Seller's right, title and interest
in and under the Leases, Service Contracts and Warranties,
in a form reasonably satisfactory to Seller and Purchaser;
(iii) The Xxxx of Sale;
(iv) Originals of the Leases, Service Contracts, Warranties and
certificates of occupancy relating to the Property, and
permits relating to Improvements constructed on the
Property by Seller;
(v) Letter to the tenants under the Leases advising the
tenants that the Property has been sold to Purchaser and
directing payment of rental under the Leases in accordance
with the directions of Purchaser;
(vi) A No-Lien/GAP Affidavit in customary form required by the
Title Insurer;
(vii) A closing statement in the form required by the Title
Insurer;
(viii) An executed FIRPTA Affidavit in customary form;
(ix) Casualty and liability insurance certificates from each
tenant under the Leases in the form required under the
Leases; and
(x) Such other documents, instruments, certifications and
confirmations as may be reasonably required to fully
effect and consummate the transaction contemplated hereby.
(c) Not later than ten (10) days prior to the Closing Date, Seller
shall obtain and deliver to Purchaser (i) an estoppel certificate executed by
each of the Anchor Tenants ("Anchor
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Tenant Estoppels") and each of the other tenants under the Shop Leases ("Shop
Space Tenant Estoppels") in the forms prescribed in the Leases or in the form
customarily executed by an Anchor Tenant, or if no form is prescribed in the
Leases then substantially in the form of EXHIBIT "E" attached hereto (ii) a
subordination, non-disturbance and attornment agreement (an "SNDA") from each of
the Anchor Tenants and each of the Shop Space Tenants in the form prescribed in
the Leases, or if no form is prescribed in the Leases then substantially in the
form of EXHIBIT "E-1" attached hereto. Seller shall also obtain (x) an estoppel
letter substantially in the form of Exhibit "E-2" attached hereto from the
International Corporate Park Association, Inc., the entity responsible to
enforce the Declaration of Protective Covenants and Restrictions for
International Corporate Park ("REA Agreement") to which the Real Property or
Improvements are subject ("REA Estoppel") and (y) an estoppel letter
substantially in the form of EXHIBIT E-3 attached hereto from the Lessor under
the Ground Lease ("Ground Lease Estoppel"). If Seller is unable to obtain the
required estoppel certificates (and subordination, non-disturbance and
attornment agreements) from all of the anchor tenants, all of the Shop Space
tenants, the Lessor under the Ground Lease, and International Corporate Park
Association, Inc., each dated no earlier than thirty (30) days prior to the
Closing Date, such failure shall constitute a failure of condition but not a
default by Seller hereunder and Purchaser's sole rights hereunder will be to
terminate this Agreement and obtain a return of the Deposit or to waive this
condition and close this Agreement without diminution of the Purchase Price or
any liability to Seller; provided, however, if Seller shall have obtained (i)
all of the Anchor Tenant Estoppels, (ii) SNDA's from all of the Anchor Tenants,
(iii) the REA Estoppel, (iv) the Ground Lease Estoppel, and (v) Shop Space
Tenant Estoppels from not less than eighty percent (80%) of the tenants under
Shop Leases, then Seller shall provide an estoppel certificate satisfactory to
Purchaser for each missing Shop Space Tenant Estoppel and Seller's obligations
under this subsection (c) shall be deemed to be met.
(d) Not later than the Closing Date, Purchaser shall deposit in the
escrow the following:
(i) A closing statement in form required by the Title Insurer;
(ii) A counterpart Assignment and Assumption of Ground Lease;
(iii) An assumption of the Leases, Service Contracts and
Warranties in a form reasonably satisfactory to Seller and
Purchaser; and
(iv) Such other documents, instruments, certifications and
confirmations as may be reasonably required and to fully
effect and consummate the transaction contemplated hereby.
(e) No later than 2:00 PM (EST) on the Closing Date, Purchaser shall
deposit the balance of the Purchase Price as provided in Section 3.1(a) with
the Title Insurer.
(f) All documents or other deliveries required to be made by
Purchaser or Seller
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on or prior to the Closing Date and all deposits and transactions required to be
consummated concurrently with Closing, shall be deemed to have been delivered
and to have been consummated simultaneously with all other transactions and all
other deliveries, and no delivery shall be deemed to have been made, and no
transaction shall be deemed to have been consummated, until all deliveries
required by Purchaser and Seller shall have been made, and all concurrent or
other transactions shall have been consummated.
(g) It shall be a condition precedent to Closing that Seller has
delivered to Purchaser written confirmation from the Anchor Tenants that they
have received any roof warranties referenced in the Anchor Leases and any
as-built survey contemplated by the Anchor Leases if Seller is required to
deliver same to an Anchor Tenant pursuant to its lease. Such confirmation shall
be contained in the estoppel certificates of such Anchor Tenants.
(h) It shall be a condition precedent to closing that Purchaser shall
have received a reliance letter from the General Contractor, in the form of
Exhibit "I" attached hereto, with respect to the warranties on the Property
providing that Purchaser may look directly to the General Contractor for the
enforcement of and performance under all of the warranties, including without
limitation, all warranties set forth on Exhibit D-2 attached hereto. Seller
shall transfer by means of an assignment, all such warranties to Purchaser at
Closing at Seller's sole cost.
ARTICLE V.
INSPECTION
5.1 INSPECTION. During the term of this Agreement, Purchaser, its
agents, employees and representatives, may have access to the Property and
the records of the Property (including those on file with any governmental
agency) at all reasonable times with the right, at Purchaser's expense, to
inspect the Property and to conduct all tests thereon as Purchaser, its
licensed engineers, surveyors and the like shall deem reasonably necessary or
desirable. Any entry on or to the Property by Purchaser or its authorized
representatives pursuant to the provisions hereof shall be at the risk of
Purchaser, and Purchaser hereby indemnifies, holds harmless and exonerates
Seller from all loss, claim, liability, action or demand arising therefrom or
connected therewith. Purchaser shall permit no waste or damage to the
Property. Purchaser has no right or power to create any liens against the
Property and Purchaser shall be responsible to completely restore the
Property at the conclusion of all tests. The indemnity and restoration
requirements set forth in this Article shall survive the Closing or other
termination of this Agreement. The access permitted by this paragraph shall
extend to all plans, specifications and other documents and reports in the
possession of Seller or its agents relevant to the physical conditions of the
Property and to the operational records, but shall not, however, extend to
Seller's internal partnership records for the Property. The Purchaser may
contact the Anchor Tenants and any tenant under a Shop Lease so long as it
shall first notify Seller and give Seller the opportunity to review any
written communication with the Anchor Tenants and any Tenant under a Shop
Lease or to be present at any personal meeting with the Anchor Tenants, as
applicable.
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5.2 TERMINATION.
(a) The obligation of Purchaser to close the transaction contemplated
hereby is, at Purchaser's option, subject to Purchaser's review and approval of:
the Leases, the Service Contracts, the Warranties the environmental and
structural condition of the Property, the Title Commitment and documents of
record, and such market research, inspection of the Property, determinations as
to the Property's compliance with the Legal Requirements and review of financial
statements relating to the Property, as Purchaser deems necessary to make its
final determination to acquire the Property. Purchaser shall have a period of
time commencing on the Effective Date and expiring at 5:00 p.m. (CST) on the
later of (i) the sixtieth (60th) day following the Effective Date and (ii) the
thirtieth (30th) day following Purchaser's receipt of the last of the Pre
Closing Deliveries (the "Inspection Period") in which to analyze the Pre Closing
Deliveries, all inspections, and all reports relating to the Property. If
Purchaser is dissatisfied or concerned with the result of any such
investigation, search, inquiry or report as contemplated hereby, in its sole and
absolute discretion, or for no reason whatsoever, Purchaser may terminate this
Agreement prior to the expiration of the Inspection Period and demand a refund
of the Deposit which Escrowee shall forthwith return to Purchaser, and thereupon
Purchaser and Seller shall each be released from all further obligations to each
other respecting matters arising from this Agreement, except with regard to such
covenants that expressly provide for survival of termination. Purchaser shall be
deemed to have agreed to purchase the Property in an "as is" condition in all
respects based upon the inspections or the right to inspect contained herein,
and without warranty or representation, express or implied, by Seller except as
provided elsewhere in this Agreement.
(b) Except as otherwise provided herein, the Property is being sold
in an "as is" condition and "with all faults" as of the Effective Date of this
Agreement and as of Closing. Except as may be expressly set forth in this
Agreement, no representations or warranties have been made or are made and no
responsibility has been or is assumed by Seller or by any partner, officer,
person, firm, agent or representative acting or purporting to act on behalf of
Seller as to the condition or repair of the Property or the value, expense of
operation, or income potential thereof or as to any other fact or condition
which has or might affect the Property or the condition, repair, value expense
of operation or income potential of the Property or any portion thereof. Except
as otherwise provided herein, Seller makes no representations or warranties,
express or implied, as to the suitability or fitness of the Property for
Purchaser's intended use of the Property. The parties agree that all
understandings and agreements heretofore made between them or their respective
agents or representatives are merged in this Agreement and the Exhibits hereto
annexed, which alone fully and completely express their agreement, and that this
Agreement has been entered into after full investigation, or with the parties
satisfied with the opportunity afforded for investigation, neither party relying
upon any statement or representation by the other unless such statement or
representation is specifically embodied in this Agreement or the Exhibits
annexed hereto. Further, to the extent that Seller has provided to Purchaser
information from any inspection, engineering or environmental reports concerning
asbestos or harmful or toxic substances, Seller makes no representations or
warranties with respect to the accuracy or completeness, methodology of
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preparation or otherwise concerning the contents of such reports. Purchaser
acknowledges that Seller has requested Purchaser to inspect fully the Property
and investigate all matters relevant thereto and to rely solely upon the results
of Purchaser's own inspections or other information obtained or otherwise
available to Purchaser, rather than any information that may have been provided
by Seller to Purchaser.
(c) Seller agrees to cooperate with Purchaser's accountants (at no
cost or expense to Seller) relative to the performance by said accountants of an
audit of Seller's books and records relating to the Property. Seller agrees
that, from and after the Closing, it shall, at the request of Purchaser's
auditors, execute a representation letter addressed to such auditors. Such
representation letter shall be in form of Exhibit "M" attached hereto.
ARTICLE VI.
DESTRUCTION, DAMAGE OR CONDEMNATION
6.1 DESTRUCTION OR DAMAGE. In the event that prior to the Closing Date any
portion of the Improvements shall be damaged or destroyed by fire or other
casualty, Seller shall immediately give Purchaser notice of such occurrence. If
the amount of damage caused by such fire or casualty shall (i) exceed
$250,000.00 (as reasonably determined by Purchaser), or (ii) be $250,000.00 or
less but as a result thereof any Anchor Tenant or Shop Lease Tenant may
terminate their Lease or xxxxx their rent or other charges (unless, with respect
to such rent abatement, Seller assigns and Purchaser receives Seller's rent
abatement insurance proceeds in an amount equal to or greater than the amount of
such abated rent) (a "Lease Termination Event"), Purchaser may, within fifteen
(15) days after receipt of such notice, elect to (a) terminate this Agreement,
in which event the Deposit shall be returned promptly to Purchaser, all
obligations of the parties hereunder shall cease and this Agreement shall have
no further force and effect, or (b) close the transaction contemplated hereby as
scheduled (except that if the Closing Date is less than fifteen (15) days
following Purchaser's receipt of such notice, Closing shall be delayed until
after Purchaser makes such election), and Seller shall assign to Purchaser at
Closing all rights under Seller's insurance policy, if any, to collect insurance
proceeds for such destruction or damage and loss of rents, and Purchaser shall
receive a credit against the Purchase Price in an amount equal to any deductible
under such policy, if any. Failure to give such notice within such time shall
be conclusive evidence that Purchaser has elected the option contained in
subsection (b) of this Section 6.1. In the event that the amount of damage
caused by such fire or casualty is less than $250,000.00, and no Lease
Termination Event has occurred, Purchaser may not elect to terminate this
Agreement and shall close the transaction contemplated hereby as scheduled, and
Seller shall assign to Purchaser at Closing all rights under Seller's insurance
policy, if any, to collect insurance proceeds for such destruction or damage and
loss of rents, and Purchaser shall receive a credit against the Purchase Price
in an amount equal to any deductible under such policy.
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6.2 CONDEMNATION. If, subsequent to the date hereof and prior to the
Closing Date, any proceeding, which shall relate to the proposed taking of any
material portion of the Real Property or Improvements by condemnation or eminent
domain or any action in the nature thereof is instituted or commenced, Purchaser
shall have the right and option to terminate this Agreement by giving Seller
written notice to such effect within fifteen (15) days after actual receipt of
written notification of any such occurrence. Failure to give such notice within
such time shall be conclusive evidence that Purchaser has waived the option to
terminate by reason of the occurrence of which it has received notice. If any
such action is instituted or commenced, and Purchaser elects or is deemed to
elect not to terminate this Agreement, at Closing, Purchaser shall be assigned
all Seller's right, if any, to any proceeds therefrom. Seller agrees to furnish
Purchaser with written notification with respect to any such proceedings within
two (2) business days of Seller's receipt of any such notification or learning
of the institution of such proceedings. Should Purchaser elect to so terminate
this Agreement, the Deposit shall be returned promptly to Purchaser and
thereupon the parties hereto shall be released from any and all further
obligations hereunder. If the Closing Date is less than fifteen (15) days
following the last day on which Purchaser is entitled to elect to terminate this
Agreement, the Closing shall be delayed until after Purchaser makes such
election. The term "material" for the purposes of this Section 6.2 shall mean
any taking of any portion of the Real Property which results in any termination
or other modification of any Lease or which grants the tenant under any Lease
any right to terminate or modify such Lease.
6.3 CASUALTY AND RENT LOSS INSURANCE. If, under the terms of Section 6.1,
Seller is obligated at Closing, to assign to Purchaser all rights under any
insurance policies to collect insurance proceeds for the repair of any
pre-Closing destruction or damage, Seller shall, at Closing, make Purchaser a
loss payee under such insurance policy in order to effectuate such assignment
obligation of Seller and in addition shall make Purchaser a loss payee for any
"Loss of Rents" insurance coverage relating to any rental loss arising from said
destruction or damage, but relating solely to the period commencing on the
Closing Date.
ARTICLE VII.
COVENANTS, REPRESENTATIONS, WARRANTIES
7.1 COVENANTS OF SELLER.
(a) Seller, at Seller's sole cost and expense, shall until the
earlier of the Closing Date or termination of this Agreement, keep and perform
or cause to be performed in all material respects: (i) all obligations of the
landlord under the Leases, (ii) all obligations of Seller under the Legal
Requirements (except to the extent any such obligations are the obligation of an
Anchor Tenant under an Anchor Lease), (iii) all obligations of Seller under the
Ground Lease, and (iv) all obligations under the REA Agreement.
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(b) From the Effective Date to the earlier of the Closing Date or
termination of this Agreement, Seller shall not, without the prior consent of
Purchaser, do, suffer or permit or agree to do any of the following:
(i) Enter into any transaction in respect to or affecting the
Property out of the ordinary course of business;
(ii) Except as otherwise provided in Section 11.4 herein, enter
into any new Lease or amend, modify, terminate or accept a
surrender of any Lease without the prior written consent
of Purchaser, which shall not be unreasonably withheld
unless such lease mandates, by its terms that Seller's
consent is either not required or is deemed given upon the
occurrence of events specified in such lease. In the event
Purchaser does not respond in writing within ten (10) days
after receipt of a written request for such approval, such
request shall be deemed approved;
(iii) Consent to any assignment of any Lease or any subletting
of the Property unless such Lease automatically requires
Seller's consent of such assignment or sublease;
(iv) Sell, encumber, or grant any interest in the Property in
any form or manner whatsoever, or otherwise perform or
permit any act which will diminish or otherwise affect
Purchaser's interest under this Agreement or in the
Property, or which will prevent Seller's full performance
of its obligations hereunder;
(v) Enter into any new Service Contract or modify any existing
Service Contract which does not contain a 30-day
cancellation/termination right without the prior written
consent of Purchaser, which shall not be unreasonably
withheld;
(vi) Consent to any amendment, modification, or termination of
the Ground Lease; or
(vii) Enter into any new REA Agreement or modify any existing
REA Agreement without the prior written consent of
Purchaser, which shall not be unreasonably withheld.
(c) Seller shall notify Purchaser promptly if Seller becomes aware of
any transactions or occurrence prior to the Closing Date which would make any of
the representations or warranties of Seller contained in Section 7.2 hereof not
true in any material respect.
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(d) In addition, Seller agrees that it shall comply with all of the
obligations of Seller, as borrower, under any construction loan documents
entered into by Seller with respect to the construction of the Property.
7.2 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
execute, deliver and perform this Agreement, Seller hereby represents and
warrants to Purchaser on and as of the date hereof and on and as of the Closing
Date as follows:
(a) Seller will, at Closing, be the lessee under the Ground Lease,
that the Ground Lease shall be in full force and effect, there shall be no
default thereunder and no event shall have occurred which shall, or with the
passage of time, constitute a default or give rise to a right on the part of the
lessor to terminate the Ground Lease.
(b) All information shown on the Rent Roll now and at Closing shall
be true and correct in all material respects. True and correct copies of all of
the Leases including the Anchor Leases have been, or shall hereafter be,
delivered to Purchaser. The interest of Seller in the Leases and the Ground
Lease shall at Closing be free and clear of all liens and encumbrances and shall
not have been assigned to any other person. Neither the Seller, nor the tenants
under any Lease, are in default of their respective obligations under the
Leases. Seller is the landlord under the Anchor Leases and each of the Shop
Leases. There are no written modifications with respect to the Anchor Leases
except as listed on Exhibit "F" attached hereto; and no rent has been paid more
than thirty (30) days in advance respecting a period subsequent to the Closing
Date. The tenants under the Leases have not asserted any claims, defenses, or
offsets to rent accruing from and after the Closing Date. Prior to Closing,
Seller will have performed all obligations of Seller to be performed under the
Leases prior to each tenant's occupancy. To the best of Seller's knowledge,
there are no material defaults or breaches on the part of Seller as landlord
under any Lease.
(c) Except for tenants under the Leases, there are no persons in
possession or occupancy of the Real Property or Improvements or any part hereof,
nor are there any persons who have possessory rights in respect to the Property
or Improvements or any part thereof. There are no rights of first refusal to
purchase or options to purchase the Property in favor of any third party.
(d) There are no causes of action or other litigation pending (or, to
the best of Seller's knowledge threatened) in respect to the ownership of the
Property or any part thereof or the ownership, enforcement or validity of the
Leases.
(e) There are no existing condemnation proceedings of any part of the
Real Property, and Seller has not received written notice from a condemning
authority of its intent to condemn any portion of the Real Property.
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(f) Seller has not received written notice from any Governmental
Authority that: the Property is in violation of any Legal Requirements which
have not previously been corrected; or, any special assessment lien has been, or
will be, filed of record.
(g) To the best of Seller's knowledge, the Real Property is in
compliance with all Legal Requirements (including, without limitation, Legal
Requirements governing the use, storage, generation or transporting of Hazardous
Substances).
(h) The financial statements provided by Seller to Purchaser, if any,
are each true, accurate and complete in all material respects.
(i) There are no service contracts or other agreements (other than
the Service Contracts and the Leases which may be entered into by Seller
pursuant to the provisions of this Agreement) which are or will be the
obligation of Purchaser after Closing including, without limitation, property
management agreements, leasing or brokerage agreements, maintenance contracts,
construction contracts, architects agreements and landscaping agreements other
than the "fire alarm" monitoring service agreements set forth on Exhibit D-4
attached hereto.
(j) Seller has no employees who by reason of any governmental
regulations, employment contract or other reason, would become employees of
Purchaser as a result of its purchase of the Property.
(k) Seller has the full capacity, right, power and authority to
execute and deliver this Agreement.
(l) The Land is a lawfully created separate subdivided tract.
(m) The Leases described on Exhibit H attached hereto and noted as
signed are fully executed and in full force and effect and the Leases described
as vacant are currently under negotiation and are being negotiated by Seller in
good faith.
(n) That there are no withholding requirements on the Purchase Price
imposed by Florida law.
7.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
execute, deliver and perform this Agreement, Purchaser hereby represents and
warrants to Seller on and as of the date hereof and on and as of the Closing
Date as follows:
(a) All representations and warranties of Purchaser appearing in
other Sections of this Agreement are true and correct.
(b) Purchaser has full capacity, right, power and authority to
execute and deliver this Agreement. At Closing, Purchaser's designee, if any,
will have full capacity, right, power, and
18
authority to perform this Agreement and all documents to be executed by
Purchaser pursuant hereto. This Agreement and all documents to be executed
pursuant hereto by Purchaser are and shall be binding upon Purchaser in
accordance with their respective terms.
7.4 DELIVERIES. Seller shall, as soon as practicable after the Effective
Date of this Agreement, deliver to Purchaser the following (which, along with
the Title Commitment are referred to herein as "Pre-Closing Deliveries") items:
(a) copy of Seller's existing boundary survey of the Real Property.
(b) copy of the Rent Roll, the Leases and any and all Service
Contracts.
(c) copies of the most recent tax bills for the Property, copies of
any notice of assessments received by Seller, and any other information relative
to taxes assessed against the Property.
(d) copies of any architectural drawings, plans and specs or any
similar document in Seller's possession relating to construction of the Shopping
Center by Seller.
(e) copies of all existing guarantees and Warranties relating to the
Real Property, the Improvements and the Personal Property.
(f) a copy of the Ground Lease.
(g) an appraisal of the Property addressed to Purchaser prepared by
Tropical Realty Appraisal Services, Inc. and dated no earlier than thirty (30)
days prior to the Effective Date.
(h) a Phase I environmental report prepared by Ardaman & Associates,
Inc. pertaining to the Property addressed to Purchaser and dated no earlier than
thirty (30) days prior to the Effective Date.
(i) all of the items set forth as Purchaser's Initial Due Diligence
list, a copy of which is attached hereto as Exhibit K.
In the event that Seller shall have, prior to the date hereof,
delivered to Purchaser any of the Pre-Closing Deliveries, then, as to such
Pre-Closing Delivery, the Seller's obligation hereunder shall be deemed to be
satisfied. In lieu of Seller delivering the items set forth at subparagraphs (g)
and (h) of this Section 7.4, Seller may direct Purchaser to obtain them directly
and Seller shall reimburse Purchaser $6,500 and $1,800, respectively, therefor
at Closing or upon the date of termination if this Agreement is terminated
earlier pursuant to its terms.
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7.5 CONSTRUCTION.
(a) Seller agrees to construct the Improvements in accordance with
the Plans, the Leases and all applicable laws, ordinances, rules and
regulations. Seller shall construct the Improvements at its sole cost and
expense and Seller shall be obligated to pay (or shall cause its tenants to pay)
all impact fees, tap fees, transportation impact fees, water and sewer
reservation fees and any other sums which may be payable to any governmental
agency in connection with construction and initial occupancy of the Property,
including, without limitation, any of such fees which are payable in connection
with any tenant improvements to be installed in the Property. In addition,
Seller agrees to cause all water, sewer, gas, electric, telephone, drainage and
other utilities required by law for the normal and proper operation of the
Property to be constructed and installed to the Property line, connected with
valid permits, and in good repair, condition and working order at the Closing.
Seller agrees that it shall obtain a certificate of occupancy for each building
which constitutes a part of the Improvements (or, if a certificate of occupancy
will not be issued until tenant improvements have been completed, then a
certificate of completion or local equivalent from the applicable governmental
agency confirming that the landlord has completed construction of the
Improvements to the satisfaction of such governmental agency), together with
certificates of occupancy for all tenant spaces as to which the Occupancy
Condition has been satisfied as of the date of the Closing. Seller agrees to use
its commercially reasonable efforts to complete the Improvements and Property in
accordance with the Construction Schedule attached hereto as EXHIBIT "D-3" and
shall notify Purchaser in writing, and provide Purchaser with a revised
construction schedule, at any time that any delays in construction will delay
the final completion date set forth in EXHIBIT "D-3". It shall be a condition
precedent to Purchaser's obligations to consummate the purchase of the Property
that the Seller shall have satisfied all of its obligations under this
subsection (a) (which shall be evidenced by, among other things, a certificate
from Seller's architect certifying that the building shells constructed by
Seller have been completed substantially in accordance with the Plans and any
and all Legal Requirements).
(b) In addition, it shall be a condition precedent to Purchaser's
obligations to consummate the purchase of the Property that the following have
occurred on or prior to the Closing:
(i) All of those guaranties and warranties set forth on
EXHIBIT "D-2" attached hereto have been assigned by Seller
to Purchaser, together with the consent of the issuer
thereof to such assignment if required by the terms of the
applicable warranty; in the event that the issuer of any
warranty charges a fee in connection with the assignment
or requires that any work be performed in connection with
the assignment, then such fee and the cost of work shall
be paid by the Seller at the Closing; and
(ii) The title policy delivered to Purchaser at Closing shall
not contain any exception for mechanics' liens (unless
appropriately bonded by Seller) and shall contain such
affirmative insurance as may be
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available in the state in which the Property is located
insuring that the Purchaser's fee title shall not be
subject to any mechanics' liens. Notwithstanding the
foregoing, Purchaser may waive such condition precedent
and proceed to Closing without the satisfaction of such
conditions precedent.
(c) Seller agrees that for a period of one (1) year from the date
completion of a building shell, which date shall be the date of the certificate
of completion for said building shell, one (1) year from the date of completion
of tenant improvements constructed by Seller which date shall be the date of
delivery of the premises to said tenant, and for a period of one (1) year from
the date of completion of any post closing work permitted by Purchaser, Seller
shall cause the contractor to repair any defects in labor and workmanship
regarding the initial construction of the Improvements only if and to the extent
the same are the obligation of the landlord under the Leases. Seller and/or the
contractor shall not be responsible for any damage caused by Purchaser on, from
and after the Closing, or by the tenant under the Leases once the Seller has
delivered to said tenant its space. Such obligation shall include any repairs or
improvements which are required to comply with applicable law and/or which are
otherwise required to put the Improvements in the condition required by the
Leases and the plans and specifications for the Property. Seller and Purchaser
agree to cooperate with each other in order to enforce any of the warranties
being assigned to Purchaser hereunder. Purchaser agrees that in the event of any
required repairs, Purchaser shall first notify the contractor or sub-contractor
that is obligated under its warranty to make such repairs, with a copy of such
notification to Seller ("Repair Notice"). In the event that such repair has not
been commenced within ten (10) days and completed within thirty (30) days, then
Purchaser shall give written notice to Seller of any required repairs and Seller
shall cause such repairs to be made within sixty (60) days from the date of the
Repair Notice to the contractor or subcontractor if Seller is obligated to make
such repairs under its warranty. In the event the Seller fails to cause such
repairs to be made within such sixty (60) day period, Purchaser may perform such
repairs and Seller shall reimburse Purchaser for the cost of such repairs on
demand and for the amount of any abated or set off rent permitted to and taken
by any tenant under its lease for failure of such repair work to be completed
within the time permitted therefor under its lease. In the event that any
repairs have been identified by Purchaser prior to the end of such warranty
period, then Seller's obligations with respect to such repair shall continue
until the same have been completed.
7.6 INDEMNITY.
(a) Seller agrees to indemnify, protect, defend and save and hold
Purchaser, its directors, officers, employees, partners, members, lenders and
agents harmless from and against all claims, actions, losses, damages, costs and
expenses, including, but not limited to, reasonable attorney's fees and court
costs and liabilities (except those caused solely by the willful misconduct or
negligent acts or omissions of Purchaser or its directors, officers, employees,
partners, lenders and agents), arising out of the construction, ownership and/or
operation of the Property prior to the Closing Date, whether arising in
contract, tort, or related to the actual or alleged injury to, or death of, any
person or loss of or damage to property in or upon the Property; and
21
(b) Purchaser agrees to indemnify, protect, defend and save and hold
Seller, its directors, officers, employees, partners, members, lenders and
agents harmless from and against all claims, actions, losses, damages, costs and
expenses, including, but not limited to, reasonable attorney's fees and court
costs and liabilities (except: (i) those caused solely by the willful misconduct
or negligent acts or omissions of Seller or its directors, officers, employees,
partners, members, lenders and agents, and (ii) those matters arising under any
construction work being performed by Seller hereunder), arising out of the
ownership and operation of the Property by Purchaser from and after the Closing
Date, whether arising in contract, tort, or related to the actual or alleged
injury to, or death of, any person or loss of or damage to property in or upon
the Property.
ARTICLE VIII.
DEFAULT, CONDITIONS PRECEDENT AND TERMINATION
8.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AND DEFAULT BY SELLER.
(a) The obligation of Purchaser to close the acquisition of the
Property is, at Purchaser's option, further subject to the following conditions
precedent:
(i) All representations and warranties of Seller contained in
this Agreement relating to the Property are true and
correct in every material respect as of the Effective Date
and as of the Closing Date;
(ii) All material covenants and obligations of Seller under
this Agreement relating to the Property have been timely
and duly performed; and
(iii) There shall be no "material adverse change" with respect
to the financial condition of the tenants under the
Leases; "MATERIAL ADVERSE CHANGE", for the purpose of this
Section 8.1 is defined as the occurrence of any one of the
following events: (i) the filing of a voluntary or
involuntary bankruptcy by or against any Anchor Tenant in
any federal bankruptcy court or the filing by or against
any Anchor Tenant of any insolvency proceedings in any
state court; (ii) any public announcement by an Anchor
Tenant that it is closing one hundred (100) or more of its
stores; and/or (iii) if, in any one of the four fiscal
quarters reported after the expiration of the Inspection
Period, but before the Closing Date, either Bed, Bath &
Beyond, Office Depot or Pier 1 Imports reports a total net
loss of Twenty-Five Million Dollars ($25,000,000.00) or
more.
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(iv) Between the date hereof and the Closing, no environmental
spill or contamination shall have occurred which would
have a material adverse effect on the Property. Purchaser
shall have the right to update any environmental reports
it has received in order to confirm that no such
environmental spill or contamination has occurred.
(v) On or before the Closing Date: (i) the Occupancy Condition
shall have been satisfied with respect to not less than
85% of the base/minimum fixed rental income in the
Improvements which amount is presently projected to be
$2,070,350.00 annually; (ii) the Occupancy Condition shall
have been satisfied with respect to all Anchor Tenant
Premises; and (iii) there shall be no material default
under any of the Anchor Leases or Shop Leases. For
purposes hereof, a "material default" shall include, but
not be limited to, a delinquency in the payment of any
amount due thereunder for a period in excess of fifteen
(15) days from the due date thereof.
As evidence of the foregoing, on or before the Closing Date, Seller shall
provide Purchaser with a certificate of Seller and Seller's general contractor
certifying as to those matters set forth in the preceding sentence.
(vii) Purchaser shall have received and approved the items on
Purchaser's Final Due Diligence List, a copy of which is
attached hereto as EXHIBIT L.
If the condition precedents to Purchaser's obligation to close as described
in this Section 8.1(a) have not occurred on or before September 1, 2004
("OUTSIDE DATE"), Purchaser shall have only the following options to be
exercised by written notice to Seller within ten (10) days following the Outside
Date: (i) to terminate this Agreement, obtain a return of the Deposit and
thereafter this Agreement shall be null and void, or (ii) to waive such
conditions and close this Agreement without diminution of the Purchase Price;
provided, however, Seller may extend the Closing Date for two 30-day periods in
the event that Office Depot is not open and operating on the Closing Date. The
parties will close within ten (10) days after Seller has notified Purchaser that
Office Depot has opened for business. If Office Depot has not opened for
business by November 1, 2004, Purchaser, at its option, by written notice to
Seller within two (2) days after the Extended Closing Date can (i) further
extend the Closing Date, (ii) waive such conditions and close this Agreement
without diminution of the Purchase Price, or (iii) terminate this Agreement,
obtain a return of the Deposit, and thereafter the Agreement shall be null and
void.. Notwithstanding the foregoing, if the failure of any such conditions is
as a result of a default of Seller, Purchaser shall have those remedies set
forth in Section 8.1(b) below.
23
(b) If Seller shall be in default of any of its obligations under
this Agreement and if Purchaser has notified Seller of the same and Seller has
failed to cure such default within five (5) days of receipt of such notice,
Purchaser shall have only the following options as its sole and exclusive remedy
for said default to be exercised by written notice to Seller: (A) to waive the
default and proceed with Closing, (B) to terminate this Agreement and obtain a
return of the Deposit, whereupon this Agreement shall become null and void and
of no further force or effect, or (C) to seek specific performance of this
Agreement. If this Agreement is terminated pursuant to this Section 8.l(b), the
Deposit shall promptly be returned to Purchaser. All other funds and documents
theretofor delivered hereunder or deposited in escrow by either party shall he
promptly returned to such party in the event Purchaser elects to terminate the
Agreement. Notwithstanding anything to the contrary contained herein, in the
event that Seller willfully defaults in its obligation to construct the
Improvements (for example, instructs the contractor to discontinue construction
of the Improvements) or in the event that Seller willfully violates any of the
provisions of Section 7.1 hereof, then, in the event that Purchaser elects to
terminate this Agreement as provided in this Section 8.1(c), Purchaser shall,
in addition to the return of the Deposit, be entitled to bring an action against
Seller for actual damages incurred by Purchaser as a result of Seller's default.
8.2 CONDITIONS TO SELLER'S OBLIGATIONS AND DEFAULT BY PURCHASER. The
obligation of Seller to close the transaction contemplated hereby is, at
Seller's option, conditioned upon Purchaser's representations and warranties
contained in this Agreement being true and correct in every material respect at
and as of the Closing Date, and upon fulfillment by Purchaser of all obligations
of Purchaser which were to have been performed on or before the Closing Date
having been timely and duly performed. In the event that Purchaser shall have
failed to perform in any respect any of the covenants, agreements and
indemnities contained herein to be performed by Purchaser within the time for
performance as specified herein (including Purchaser's obligation to close), and
provided Seller has notified Purchaser of the same and Purchaser has failed to
cure such condition or circumstance or non-performance within five (5) days of
receipt of such notice, Seller's sole remedy on account thereof shall be to
terminate this Agreement by delivering written notice of its election to so
terminate to Purchaser, in which event the Deposit shall be paid to Seller as
liquidated damages, it being understood that Seller's actual damages in the
event of such default are difficult to ascertain and that such proceeds
represent the parties' best current estimate of such damage and thereupon
neither party shall have any further obligation to the other under this
Agreement except for those obligations which expressly survive termination
hereunder.
ARTICLE IX.
NOTICES
9.1 NOTICES. Any notice, request, demand, instrument or other document to
be given or served hereunder shall be in writing and shall be delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid, or by overnight express courier, or by facsimile transmission
and addressed to the parties at their respective addresses set forth below, and
24
the same shall be effective upon receipt if delivered personally or upon deposit
in the mails, if mailed, or upon deposit with an overnight express courier or
when sent by facsimile transmission. A party may change its address or facsimile
transmission number for receipt of notices by service of a notice of such change
in accordance herewith.
If to Seller:
IPSC Associates, L.L.C.
c/o W. Xxxxxxx Xxxxx
Courtelis Company
000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxxx, General Counsel
Courtelis Company
000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Purchaser:
Inland Real Estate Acquisitions Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Phone: (000) 000-0000
Facsimile Number: (000) 000-0000
with a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000 x 0000
Facsimile Number: (000) 000-0000
25
ARTICLE X.
ADDITIONAL COVENANTS
10.1 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived except by an instrument in writing signed by the
party to be bound thereby.
10.2 FURTHER ASSURANCES. The parties each agree to do, execute, acknowledge
and deliver all such further acts, instruments and assurances and to take all
such further action before or after the Closing as shall be necessary or
desirable to fully carry out this Agreement and to fully consummate and effect
the transaction contemplated hereby.
10.3 SURVIVAL AND BENEFIT. Only those agreements, covenants,
indemnifications, and obligations of the parties hereunder set forth in Sections
4.3, 5.1, 7.5 and 7.6 shall survive Closing for a period of one year unless said
Section provides for a longer period. Moreover, the representations and
warranties of Seller set forth in Section 7.2, and the representations and
warranties of Purchaser set forth in Section 7.3, shall survive the Closing for
a period of twelve (12) months and inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Notwithstanding the
foregoing, in the event any party provides written notice to the other party
within such twelve (12) month period that any representation, warranty or
certification made by such other party is inaccurate or false, then the survival
period for such representation, warranty or certification shall be extended
until such time as the parties have agreed in writing to resolve the dispute
regarding the representation, warranty or certification or there has been a
final adjudication of the dispute by a court of competent jurisdiction.
10.4 ASSIGNMENT; NO THIRD PARTY BENEFICIARY. This Agreement may not be
assigned by Purchaser. Notwithstanding the foregoing, Purchaser shall be
permitted, without Seller's consent, to assign its rights, privileges, duties
and obligations under this Agreement to an entity which is owned, directly or
indirectly, in whole or in part by Purchaser or Inland Western Retail Real
Estate Trust, Inc., a Maryland corporation, so long as same does not delay the
Closing. Promptly following, and as a condition to, any assignment by Purchaser
permitted under this subsection 10.4, Purchaser shall deliver to Seller an
assumption by the assignee of all of Purchaser's duties and obligations under
this Agreement. Such assignment by Purchaser will not absolve or release
Purchaser from liability under this Agreement whether prior to or subsequent to
Closing. This Agreement is for the sole and exclusive benefit of the parties
hereto and the designee of Purchaser and no third party is intended to or shall
have any rights hereunder.
10.5 BROKERAGE. Purchaser and Seller represent and warrant to each other
that neither has dealt with any broker in connection with this transaction
except for Courtelis Company. It shall be the obligation of Seller to pay any
commission due Courtelis Company or a result of the transaction pursuant to a
separate agreement between Seller and Courtelis Company. Purchaser and Seller
agree
26
to hold the other harmless from and against any claims of any person claiming a
right to a commission in connection with this transaction by virtue of dealing
with the indemnifying party.
10.6 INTERPRETATION.
(a) The headings and captions herein are inserted for convenient
reference only and the same shall not limit or construe the paragraphs or
Sections to which they apply or otherwise affect the interpretation hereof.
(b) The terms "hereby," "hereof," "hereto," "herein," "hereunder" and
any similar terms shall refer to this Agreement, and the term "hereafter" shall
mean after and the term "heretofore" shall mean before, the date of this
Agreement.
(c) Words of the masculine, feminine or neuter gender shall mean and
include the correlative words of other genders and words importing the singular
number shall mean and include the plural number and vice versa.
(d) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), trusts, corporations and other
legal entities, including public bodies, as well as natural persons.
(e) The terms "include," "including" and similar terms shall be
construed as if followed by the phrase "without being limited to."
(f) Whenever under the terms of this Agreement the time for
performance of a covenant or condition or the last day to give notice falls upon
a Saturday, Sunday or holiday (whether in the United States or Canada), such
time for performance shall be extended to the next business day. Otherwise all
references herein to "day" shall mean calendar days.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the state in which the Property is located.
(h) The Seller and the Buyer mutually agree that they waive all
rights to a trial by jury in the event of any dispute or court action arising
from, growing out of, or related to this Agreement. The parties acknowledge that
this waiver is a significant consideration to, and a material inducement, for
both parties to enter into this Agreement.
(i) In any action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover its expenses, including reasonable
attorneys fees and costs of litigation, including those in any appellate
proceedings.
(j) Time is of the essence of this Agreement.
27
(k) This Agreement and any document or instrument executed pursuant
hereto may be executed in any number of counterparts each of which shall be
deemed an original, but all of which together shall constitute the same
instrument.
(l) Any waiver by either party of any provision of this Agreement or
any exhibit attached hereto must be in writing and shall constitute a waiver of
that provision, on that occasion only, and shall not operate or be construed as
a waiver of any other provision or subsequent breach thereof.
10.7 EFFECTIVE DATE. Wherever herein contained the expression "Effective
Date" or "date hereof" is used, it shall be deemed to mean the last date that
both Seller and Purchaser have executed a copy of this Agreement.
ARTICLE XI.
MASTER LEASING; ESCROW DEPOSIT
11.1 LEASING DEPOSIT. In the event that, at Closing hereunder, there are
any Vacant Spaces at the Property, then, at Closing, Seller shall deposit with
Escrowee an amount (the "LEASING DEPOSIT") equal to one hundred percent (100%)
of the sum of the following products for all of the Vacant Spaces, less the
allowed vacancy (if any) per the project proforma shown on EXHIBIT "G": as to
each Vacant Space, (a) the sum of (i) the per square foot annual base rent set
forth on the Project Pro Forma for such Vacant Space or in the lease for an
unoccupied, but leased, Vacant Space plus (ii) $4.55 per square foot, MULTIPLIED
by (iii) the amount of the square footage of such Vacant Space. The Leasing
Deposit shall be held in escrow by Escrowee, subject to the terms and conditions
of this Agreement, and shall be disbursed as hereinafter provided.
11.2 DISBURSEMENTS OF THE LEASING DEPOSIT. The Leasing Deposit shall be
held in escrow by Escrowee, subject to the terms and conditions of this
Agreement, and shall be disbursed as hereinafter provided. Commencing on the
date of Closing, and continuing on the first (1st) day of each calendar month
thereafter until the first (1st) anniversary of the Closing Date, Purchaser
shall be entitled to receive, from the Leasing Deposit, an amount equal to
one-twelfth (l/l2th) of the initial balance in the Leasing Deposit, which
monthly payment shall continue until the earlier of (i) the date the Leasing
Deposit has been disbursed in full or (ii) with respect to any portion of the
Vacant Space, the date that such portion has been leased to a third party tenant
and such tenant has satisfied the Occupancy Condition (the "LEASE-UP EVENT"). At
such time as the Lease-Up Event has occurred and Purchaser has received all
requisite payments then-due hereunder for such Vacant Space, the balance of the
Leasing Deposit, if any, for that Vacant Space, shall be released to Seller.
Purchaser shall notify Escrowee within two (2) days following the Lease-Up
Event. On the first (1st) day of the first (1st) month following the
satisfaction of the Occupancy Condition by any tenant leasing any Vacant Space
at the Property, Seller shall be entitled to receive from the Leasing Deposit
the remaining amount still being held in escrow for that particular Vacant Space
and the monthly payment from the Leasing Deposit that Purchaser is entitled to
receive pursuant to this paragraph shall be reduced by an amount equal to such
amount paid to Seller. If, at the end of said 12-month period, any sums
28
(including any accrued interest) remain in the Leasing Deposit, same shall be
disbursed by the Escrow Agent to Seller.
11.3 TI ESCROW. In the event that, at Closing hereunder, there are any
Vacant Spaces at the Property, Seller shall be liable for tenant improvement
costs for the Vacant Spaces in the amount of $50.00 per square foot of Vacant
Space leased at the Property or the amount therefor set forth in an unoccupied
Vacant Space lease, and at Closing, and in addition to the Leasing Deposit,
Seller shall deposit with Escrowee (a) an amount ("TI ESCROW") equal to the
product of the following: (i) $50.00 per square foot; MULTIPLIED by (ii) the sum
of the number of square feet of Vacant Spaces at the Property to be applied to
tenant improvement costs for the Vacant Spaces at the Property or the amount set
forth in the unoccupied Vacant Space lease; and (b) an amount ("LEASING
COMMISSION DEPOSIT") equal to the product of the following: (i) $5.00 per square
foot; MULTIPLIED by (ii) the sum of the number of square feet of Vacant Spaces
at the Property to be applied to leasing commissions incurred in connection with
leases made for the Vacant Spaces at the Property, or the amount of any
commission owed pursuant to a commission agreement for a leased, but unoccupied,
Vacant Space. The parties acknowledge that, in the event that a Lease is entered
into for any Vacant Space at the Property prior to the Closing, then the leasing
commissions and tenant improvement costs payable with respect to such Lease
shall be disbursed from the TI Escrow and Leasing Commission Deposit to the
party entitled to receive payment of the same; provided however, (x)
disbursements from the TI Escrow shall be limited to the rate of $50.00 per
square foot in any one Vacant Space, with Seller simultaneously disbursing any
excess over $50.00 per square foot in such Vacant Space; and (y) disbursements
from the Leasing Commission Deposit shall be limited to the rate of $5.00 per
square foot in any one Vacant Space, with Seller simultaneously disbursing any
excess over $5.00 per square foot in such Vacant Space. On the date which is
twelve (12) months from the Closing Date, any sums remaining in the TI Escrow or
Leasing Commission Deposit shall be remitted to (i) Seller, if the Occupancy
Condition has been fully satisfied with respect to all Vacant Spaces, or (ii)
Purchaser, if the Occupancy Condition has not been fully satisfied with respect
to all Vacant Spaces.
11.4 SHOP LEASES.
(a) After the Effective Date, Seller shall not execute any Shop Lease
without Purchaser's prior written approval, however, Purchaser approves the
tenants and terms outlined on Exhibit "J" attached hereto, but reserves the
right to review and approve such written leases prior to execution by Seller.
Seller agrees that it shall pay the cost of any leasing commissions and/or
tenant improvements which are the obligation of the landlord under any of such
new Leases. In the event that any brokerage commissions and/or tenant
improvement costs have not been paid at the time of Closing hereunder, then an
amount equal to such unpaid brokerage commissions and tenant improvement costs
shall be deposited in the TI Escrow and shall be disbursed as provided in
Section 11.3 hereof.
(b) Following the Closing Date and during the period that the Leasing
Deposit and TI Escrow are being held by Escrowee, Purchaser agrees, within ten
(10) business days of receipt of any Shop Lease complying with the leasing
guidelines agreed to by Seller and Purchaser at the Closing Date, to execute
such Shop Lease.
29
WHEREFORE, this Agreement has been executed and delivered by Seller and
Purchaser on the respective dates set forth beneath each of their signatures and
is intended to be effective as of the latest such date.
SELLER:
IPSC ASSOCIATES, L.L.C., A FLORIDA
LIMITED LIABILITY CORPORATION
By: IPSC ASSOCIATES, LTD., a Florida limited
partnership, its Managing Member
BY: NEWCASTER DEVCORP, INC., a
Florida corporation, its general partner
By: /s/ W. Xxxxxxx Xxxxx
------------------------------------
W. Xxxxxxx Xxxxx
----------------------------------------
President
--------------------------------
Dated: March 23, 2004
--------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Authorized Agent
-------------------------------------
Dated: March 24, 2004
--------
30
EXHIBIT "A"
LEGAL DESCRIPTION OF THE REAL PROPERTY
All of Lot 1 and the West 130.74 feet of Xxx 0, Xxxxx 0, xx XXXXXXXXXXXXX
XXXXXXXXX XXXX SECTION 3, according to the Plat thereof, as recorded in Plat
Book 149 at Page 93, of the Public Records of Miami-Dade County, Florida.
31
EXHIBIT "B"
FORM OF ESCROW AGREEMENT
Escrow Trust No. Date: , 2004
JOINT ORDER ESCROW TRUST
The accompanying FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) is hereby
deposited with the First American Title Insurance Company as Escrow Trustee to
be delivered by it only upon the joint order of the undersigned or their
respective legal representatives or assigns except as provided below.
The First American Title Insurance Company as Escrow Trustee is hereby
expressly authorized to disregard in its sole discretion any and all notices or
warnings given by any of the parties hereto or by any other person or
corporation but the said Escrow Trustee is hereby expressly authorized to regard
and to comply with and obey any and all orders, judgments or decrees entered or
issued by any court with or without jurisdiction, and in case the said Escrow
Trustee obeys or complies with any such order, judgment or decree of any court
it shall not be liable to any of the parties hereto or any other person, firm or
corporation by reason of such compliance notwithstanding any such order,
judgment or decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated in case of any suit or proceeding
regarding this Escrow Trust to which said Escrow Trustee is or may be at any
time a party it shall have a lien on the contents hereof for any and all costs,
attorneys' and solicitors' fees, whether such attorneys or solicitors shall be
regularly retained or specially employed and other expenses which it may have
incurred or become liable for on account thereof and it shall be entitled to
reimburse itself therefore out of said deposit and the undersigned jointly and
severally agree to pay to said Escrow Trustee upon demand all such costs, fees
and expenses so incurred.
The escrow trust fee is to be charged one half to each party. Escrowed
funds may be invested at Purchaser's direction with all interest payable to, and
investment fees paid by, Purchaser (Purchaser's Tax ID ). Escrow
Trustee will, upon request, furnish information concerning its procedures and
fee schedules for investment.
Except as to deposits of funds for which Escrow Trustee has received
express written direction concerning investment or other handling, the parties
hereto agree that the Escrow Trustee shall be under no duty to invest or
reinvest any deposits at any time held by it hereunder; and, further, that
Escrow Trustee may commingle such deposits with other deposits or with its own
funds in the manner provided for the administration of funds under Section 2-8
of the Corporate Fiduciary Act (Ill. Rev. Stat. Ch. 17 Par. 152-8) and may use
any part or all such funds for its own benefit without obligation to any party
for interest or earnings derived thereby, if any, provided, however, nothing
herein shall diminish Escrow Trustee's obligation to apply the full amount of
the deposits in accordance with the terms of this agreement.
32
In the event the Escrow Trustee is requested to invest deposits hereunder,
First American Title Insurance Company is not to be held responsible for any
loss of principal or interest which may be incurred as a result of making the
investments or redeeming said investment for the purposes of this Escrow Trust.
Except as described below, in no case shall the above mentioned deposits be
surrendered except on an order signed by the parties hereto, or by their
respective legal representatives or assigns, or in obedience to the process or
order of a court as aforesaid except as below provided.
Escrow Trustee is directed, without notice or additional direction from
Seller, to refund all funds on deposit, and any interest earned thereon, if any,
to Purchaser on demand in the event Escrow Trustee is served on or before
, 2004 with Purchaser's statement that Purchaser has elected to
terminate the
Purchase Agreement between Purchaser and Seller pursuant to which
this escrow trust is established and thereupon the escrow trustee shall be
released and discharged from all further duty of liability in respect to the
deposits or any of them.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
By:
-----------------------------
, attorney
----------
SELLER:
IPSC ASSOCIATES, L.L.C., A FLORIDA
LIMITED LIABILITY CORPORATION
By: IPSC ASSOCIATES, LTD., a Florida limited
partnership, its Managing Member
BY: NEWCASTER DEVCORP, INC., a
Florida corporation, its general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
33
ACCEPTED:
First American Title Insurance Company
Escrow Trustee
By:
-----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
34
EXHIBIT "C"
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE is made and entered into
this day of , 2004, by and between IPSC
ASSOCIATES, L.L.C., a Florida limited liability company, as the "Assignor",
and INLAND REAL ESTATE ACQUISITION, INC., an Illinois corporation, as the
"Assignee".
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the sum of Ten and 00/100 ($10.00) Dollars to
the Assignor in hand paid by the Assignee and other good and valuable
consideration, the receipt, accuracy and sufficiency of which are hereby
acknowledged, the Assignor does hereby grant, transfer, release, set over,
quit-claim, assign and convey to the Assignee, all of the right, title and
interest of the Assignor as lessee in, to and under that certain ground lease
set forth on Exhibit "A", attached hereto and by this reference made a part
hereof (the "Lease"), for a shopping center known as Bed, Bath & Beyond Plaza,
located at the southeast corner of the intersection of Xxxxxxxxx 000xx Xxxxxx
and Northwest 19th Street, Miami, Miami-Dade County, Florida, and being more
particularly described on Exhibit "B", attached hereto and by this reference
made a part hereof.
The Assignor represents that there is no default of any party under the
terms of the Lease.
The Assignee does hereby accept the foregoing assignment and, with
reference to the time period occurring and acts required after the date hereof,
does hereby assume and agree to perform each and every obligation, covenant,
duty, agreement and obligations expressly set forth to be performed by the
Assignor under said Lease, according to the covenants, conditions, provisions
and terms therein stated, and the Assignee further agrees that, for all intents
and purposes, from and after the date hereof, it is the lessee under said Lease.
The Assignor hereby agrees to protect, indemnify, defend and hold the
Assignee harmless from and against any and all claims, damages, losses,
liabilities, costs and expenses (including reasonable attorneys' fees at all
levels) with reference to the time period occurring and acts required in
connection with said Lease prior to the date hereof. The Assignee hereby agrees
to protect, indemnify, defend and hold the Assignor harmless from and against
any and all claims, damages, losses, liabilities, costs and expenses (including
reasonable attorneys' fees at all levels) with reference to the time period
occurring and acts required in connection with said Lease from and after the
date hereof.
IN WITNESS WHEREOF, the said Assignor, IPSC ASSOCIATES, L.L.C., a Florida
limited liability company, and the said Assignee, INLAND REAL ESTATE
ACQUISITION, INC., an Illinois corporation, have hereunto set their respective
names and seals, the day and year first written above.
35
Signed, Sealed and Delivered ASSIGNOR:
in the Presence of:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC ASSOCIATES, LTD., a Florida
limited partnership, its Managing Member
BY: NEWCASTER DEVCORP, INC.,
a Florida corporation, its
general partner
By:
------------------------------------
W. Xxxxxxx Xxxxx
Vice President
Signed, Sealed and Delivered ASSIGNEE:
in the Presence of:
INLAND REAL ESTATE ACQUISITION,
INC., an Illinois corporation
------------------------------
By:
------------------------------ --------------------------
36
EXHIBIT "A"
1. Ground Lease Agreement between International Plaza Associates III, Ltd., as
landlord, and IPSC Associates, L.L.C., as tenant, dated January 31, 2002.
2. Memorandum of Lease between International Plaza Associates, III Ltd., as
landlord, and IPSC Associates, L.L.C., as tenant, dated June , 2002 and
revised June 20, 2002, under Clerk's File No. 02R386416, in Official
Records Book 20480, at Page 532, of the Public Records of Miami-Dade
County, Florida.
3. Corrective Memorandum of Lease between International Plaza Associates, III
Ltd., as landlord, and IPSC Associates, L.L.C., as tenant, recorded
September 3, 2002, under Clerk's File No. 02R543520, in Official Records
Book 20627, at Page 3001, of the Public Records of Miami-Dade County,
Florida.
37
EXHIBIT "D-1"
MASTER LIST OF DRAWINGS
FOR
BED BATH & BEYOND PLAZA
3.15.04
BUILDING/TENANT ARCHITECT/ENGINEER NAME OF PLAN DATE
Building Shell #1 Xxxxxx Xxxxxxx & Partners Shell Building #1 10.01.02 - Last Revised 6.9.03
International Plaza at
International Corporate Park
Job # 00000
Xxxxxxxx Xxxxx # 0 Xxxxxx Xxxxxxx & Partners Shell Building #2 12.20.02 - Last Revised 8.22.03
International Plaza at
International Corporate Park
Job # 98055
Fuddrucker's Xxxxxx Xxxxxxx & Partners Fudruckers-Building #1 10.01.02 - Last Revised 10.7.03
International Plaza at
International Corporate Park
Party City Xxxxxx Xxxxxxx & Partners Party City 11.25.02 - Last Revised 4.2.03
The Discount Party Super Store
International Plaza at
International Corporate Park
Job # 98055-012
Bed Bath & Beyond Xxxxxx Xxxxxxx & Partners Bed Bath & Beyond 1.28.03 - Last Revised 9.5.03
International Plaza at
International Corporate Park
Job # 98055
Office Depot Xxxxx Xxxxx Xxxxxxx Office Depot 11.07.03 - Last Revised 1.22.04
Associates, LC Xxxxxxxxxxxxx Xxxxx, Xxxx. #0
Xxxxx # 000000
Xxxxx Beauty Xxxxxx Xxxxxxx & Partners Xxxxx Beauty-Building #3 10.01.02 - Last Revised 10.27.03
International Plaza at
International Corporate Park
Job # 98055
Cargo Kids Avant Design Group, Inc. Cargokids! 5.23.03 - Last Revised 1.13.04
Miami/International, FL
Store # 9184
Job # 203404
Pier 1 Imports Avant Design Group, Inc. Pier 1 Imports 3.26.02 - Last Revised 3.13.03
Miami/International
Job # 2012401
Fuddrucker's Xxxxxx Xxxxxxx & Partners International Plaza 10.01.02 - Last Revised 2.16.04
Entry Feature Fuddruckers Canopy
Renovation
Job # 02-165
Civil Engineering V.S.N. Engineering, Inc. International Corporate Park 1.05.98 - Last Revised 10.28.03
ICP International Plaza
Project # 22017-01
Landscaping Fuster Design Associates, P.A. International Plaza 1.07.99 - Last Revised 1.23.03
Landscape Plan
EXHIBIT "D-2"
LIST OF GUARANTIES AND WARRANTIES
1. 15-year roof membrane warranty for each building from Xxxx Xxxxxxxxx.
2. 5 year HVAC compressor warranty from manufactures of HVAC compressor.
3. 1 year general constructor warranty.
4. 1 year subcontractor warranty.
39
EXHIBIT "D-3"
CONSTRUCTION SCHEDULE
1. Starbucks Scheduled to open by March 12, 2004.
2. Fuddruckers Scheduled to open by March 29, 2004.
3. Quizno's Classic Subs Tenant expects to obtain building permit by
March 15, 2004 and 90 days to construct its
improvements; expects to open around June
15, 2004.
4. A+ Nails Tenant expects to obtain building permit by
April 10, 2004 and 60 days to construct its
improvements; expects to open around June
10, 2004.
5. Sprint Open for business.
6. Moe's Southwest Grill Waiting for Tenant plans.
7. Party City Open for business.
8. Bed, Bath & Beyond Open for business.
9. Office Depot Under construction; tenant modifying portion
of interior building plans. Landlord will
finish its current work by April 15, 2004.
10. Dentist Under construction and expects to open by
July 15, 2004.
11. Bo Concept Tenant expects to obtain building permit
around April 15, 2004 and open by June 15,
2004.
12. Sally's Beauty Expects to open by April 12, 2004.
13. Cargo Kids Expects to open by March 27, 2004
14. Pier 1 Imports Open for business.
40
EXHIBIT "D-4"
LIST OF SERVICE CONTRACTS
1. "Fire Alarm" Monitoring Service Agreement for each building with Tyco Fire
& Security, dated October 21, 2003.
2. "Landscape" Agreement with Tropics North, Inc., dated January 1, 2004.
3. "Fountain" Agreement with South Florida Pool Co., Inc., dated March 8,
2004.
4. Two (2) "Waste" Service Agreements with All Service, both dated March 3,
2004.
41
EXHIBIT "E"
FORM OF ESTOPPEL CERTIFICATE
The undersigned,_____________________________________ d/b/a
____________________________ ("Tenant"), is the tenant under that certain lease
dated ___________________, together with all amendments to such lease, each of
which is listed on Schedule A hereto (such original lease, together with all
such amendments, collectively the "Lease") from IPSC Associates, L.L.C. (the
"Landlord") with respect to Tenant's occupancy of approximately __________
square feet (the "Premises") of the shopping center property commonly known as
Bed, Bath & Beyond Plaza, located at _____________________________________,
Miami, Florida (the "Property"). Landlord has informed Tenant that Inland Real
Estate Acquisitions, Inc., or its assigns ("Purchaser") intends to purchase the
Property and that _____________________________ ("Lender") will make a loan to
Purchaser which will be secured by, among other things, a first mortgage and an
assignment of leases and rents (collectively "Security Instruments").
Tenant represents and warrants to Purchaser and Lender the following and Tenant
acknowledges that Lender and Purchaser in making the aforementioned purchase, or
mortgage/loan to Purchaser, will be relying upon such representations,
warranties and covenants:
a. the Lease is in full force and effect and has not been modified.,
altered or amended except as shown on Schedule A attached hereto, is binding
upon, and enforceable against Tenant in accordance with its terms, and will not
be modified, altered, or amended without the prior written consent of
Purchaser/Lender;
b. there are no offsets or credits against rentals, nor have rentals been
prepaid except as provided by the terms of the Lease;
c. the rentals due and payable under the Lease have begun to accrue;
d. there is no event of default under the Lease;
e. all rentals due under the Lease are currently paid to Landlord;
f. the lease term expires on ________________, subject to renewals as
contained in the Lease;
g. the current minimum fixed monthly rentals (exclusive of contributions
for insurance, taxes or common area maintenance, percentage rent and state sales
tax) are $_____________ and are payable monthly in advance under the Lease;
h. Tenant has no notice of the execution of any prior assignment,
hypothecation or pledge of rents or the Lease except to SouthTrust Bank;
42
i. there are no actions, either voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States, or under the
bankruptcy laws of any state;
j. to the best of Tenant's knowledge and belief, there is no event of
default under the Lease, and Landlord (or Landlord's predecessor in interest)
has performed all obligations of Landlord under the Lease (including payment of
any finish-out or moving allowances provided in the Lease);
k. no rentals are currently past due under the Lease;
l. the Tenant has not and will not engage in any activity that would
involve the use of the demised premises for the storage, use or disposal of any
hazardous substances or any other substance which could pose a hazard to the
health or safety of persons at the demised premises or in and around the demised
premises; and
m. upon notice from Lender, Tenant will make payments of rents due with
respect to the Lease directly to Lender.
The Lease shall at all times be subject and subordinate in all respects to the
Security Instruments and to all renewals, modifications and extension thereof,
subject to the terms and conditions of this Agreement.
Tenant shall give prompt written notice to Lender of all defaults by Landlord of
those obligations under the Lease which are of such a nature as to give Tenant
a right to terminate the Lease, to reduce rent, or to credit of offset any
amounts against future rents, and Lender shall have a reasonable opportunity
(but shall not be required) to cure the same.
So long as Tenant is not in default in the payment of rent, additional rent or
other charges or conditions of the Lease, Tenant shall not be disturbed by
Lender in Tenant's possession, enjoyment, use and occupancy of the Premises
during the original or any renewal term of the Lease or any extension or
modification thereof.
No person or entity who exercises a right under the Security Instruments to
receive the rents payable by Tenant under the Lease shall thereby become
obligated to Tenant for the performance of any of the terms, covenants,
conditions and agreements of Landlord under the Lease. Tenant agrees that Tenant
shall make the payments to be made by Tenant under the Lease to such person or
entity upon receipt of written notice of the exercise of such rights, and Tenant
agrees not to prepay any sums payable by Tenant under the Lease. Such receipt of
rent by any other party shall not relieve Landlord of its obligations under the
Lease, and Tenant shall continue to look to Landlord only for performance
thereof.
If the interest of Landlord shall be acquired by Lender by reason of foreclosure
of its mortgage or other proceedings brought to enforce the rights of the holder
thereof, by deed in lieu of foreclosure or by any other method, and Lender
succeeds to the interest of Landlord under the Lease, the Lease
43
shall continue in full force and effect and shall not be terminated or disturbed
except in accordance with the terms of the Lease. Lender agrees to promptly
furnish Tenant with appropriate evidence of Lender's acquisition of Landlord's
interest in the Lease. Tenant shall thereupon be bound to Lender under all the
terms, covenants and conditions of the Lease for the balance of the term thereof
remaining, and any extensions or renewals thereof which may be affected in
accordance with any option therefor contained in the Lease, with the same force
and effect as if Lender were the landlord under the Lease. Tenant does hereby
attorn to Lender as its landlord, said attornment to be effective and
self-operative without the execution of any other instruments on the part of
either party hereto immediately upon Lender's succeeding to the interest of
Landlord under the Lease and providing Tenant with evidence of same, and Tenant
hereby agrees that, except as provided in Section 7(b) below, Lender shall not
be responsible for or be liable in any way for any default under the Lease
occurring prior to the time Lender obtains title to the estate owned by Landlord
and is entitled to actual unrestricted possession of the Premises.
In addition to and not in lieu of all the provisions herein, Lender shall not in
any way or to any extent be:
a. liable for any act or omission of any landlord (including Landlord);
or
b. subject to any offsets or defenses which Tenant might have against any
prior Landlord (including Landlord) except those which arose out of such
landlord's default under the Lease and for which Tenant has notified Lender in
writing and given Lender an opportunity to cure as provided herein; or
c. bound by any rent or additional rent which Tenant might have paid for
more than thirty (30) days in advance to any prior landlord (including
Landlord); or
d. bound by any amendment, modification or termination of the Lease made
after the date hereof without Lender's consent; or
e. in any way responsible for any deposit or security which was delivered
to Landlord but which was not subsequently delivered to Lender; or
f. responsible for any obligation to remodel the Premises except as
specifically set forth in the Lease.
All notices, demands, or requests, and responses thereto, required or permitted
to be given pursuant to this Certificate shall be in writing and shall be deemed
to have been properly given or served and shall be deemed effective upon being
deposited in the United States mail, postage prepaid and registered or certified
with return receipt requested. Any such notice, if given, shall be addressed as
follows:
44
--------------------------------
--------------------------------
--------------------------------
Attn:
--------------------------
This Certificate shall be binding upon Tenant and its successors and assigns and
shall inure to the benefit of and be enforceable by Purchaser [AND LENDER AND
EACH OF] its successors, assigns and designees, [INCLUDING, BUT NOT LIMITED TO,
ANY PURCHASER AT A FORECLOSURE SALE OR PERSON OR ENTITY RECEIVING A DEED IN LIEU
OF FORECLOSURE (WHICH SUCCESSORS, ASSIGNS, DESIGNEES, PURCHASER, PERSON OR
ENTITY SHALL BE DEEMED TO BE INCLUDED WITHIN THE TERMS "PURCHASER" AND "LENDER"
FOR PURPOSES OF THIS CERTIFICATE). TENANT AGREES IF A LENDER ("OTHER LENDER")
OTHER THAN LENDER SHOULD FINANCE ALL OR A PART OF THE PURCHASE OF THE PROPERTY
AND OBTAIN A SECURITY INTEREST IN THE PROPERTY, THEN THIS LETTER SHALL EXTEND IN
FAVOR OF SUCH OTHER LENDER. TENANT ALSO AGREES THAT IF A PURCHASER (THE "OTHER
PURCHASER") OTHER THAN PURCHASER, SHOULD ACQUIRE THE PROPERTY, THEN THIS LETTER
SHALL EXTEND IN FAVOR OF SUCH OTHER PURCHASER.]
TENANT:
-------------------------------------
a __________________________
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
45
EXHIBIT "E-1"
FORM OF SNDA
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of the ______ day ___________, 200_ by and between
______________________________, having an address at
________________________________ ("Lender") and ___________________________,
having an address at ______________________________________________ ("Tenant").
RECITALS:
A. Tenant is the holder of a leasehold estate in a portion of the
property known as ______________________________________, located at
________________________________, as more particularly described on Schedule A
(the "Property") under and pursuant to the provisions of a certain lease dated
________________ between ________________________________ or its successor in
interest, _________________________________________________, ("Landlord") and
Tenant or its predecessor in interest, as tenant (as amended through the date
hereof, the "Lease");
B. The Property is or is to be encumbered by one or more mortgages, deeds
of trust, deeds to secure debt or similar security agreements (collectively, the
"Security Instrument") from Landlord, or its successor in interest, in favor of
Lender; and
C. Tenant has agreed to subordinate the Lease to the Security Instrument
and to the lien thereof and Lender has agreed to grant non-disturbance to Tenant
under the Lease on the terms and conditions hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. SUBORDINATION. The Lease shall be subject and subordinate in all
respects to the lien and terms of the Security Instrument, to any and all
advances to be made thereunder and to all renewals, modifications,
consolidations, replacements and extensions thereof.
2. NONDISTURBANCE. So long as Tenant pays all rents and other charges as
specified in the Lease and is not otherwise in default (beyond applicable notice
and cure periods) of any of its obligations and covenants pursuant to the Lease,
Lender agrees for itself and its successors in interest and for any other person
acquiring title to the Property through a foreclosure (an "Acquiring Party"),
that Tenant's possession of the premises as described in the Lease will not be
disturbed during the term of the Lease, as said term may be extended pursuant to
the terms of the Lease or as said premises may be expanded as specified in the
Lease, by reason of a foreclosure. For purposes of this agreement, a
"foreclosure" shall include (but not be limited to) a sheriff's or trustee's
sale under the
46
power of sale contained in the Security Instrument, the termination of any
superior lease of the Property and any other transfer of the Landlord's interest
in the Property under peril of foreclosure, including, without limitation to the
generality of the foregoing, an assignment or sale in lieu of foreclosure.
3. ATTORNMENT. Tenant agrees to attorn to, accept and recognize any
Acquiring Party as the landlord under the Lease pursuant to the provisions
expressly set forth therein for the then remaining balance of the term of the
Lease, and any extensions thereof as made pursuant to the Lease. The foregoing
provision shall he self-operative and shall not require the execution of any
further instrument or agreement by Tenant as a condition to its effectiveness.
Tenant agrees, however, to execute and deliver, at any time and from time to
time, upon the request of the Lender or any Acquiring Party any reasonable
instrument which may be necessary or appropriate to evidence such attornment.
4. NO LIABILITY. Notwithstanding anything to the contrary contained
herein or in the Lease, it is specifically understood and agreed that neither
the Lender, any receiver nor any Acquiring Party shall be;
(a) liable for any act, omission, negligence or default of any prior
landlord (other than to cure defaults of a continuing nature with respect to the
maintenance or repair of the demised premises or the Property); provided,
however, that any Acquiring Party shall be liable and responsible for the
performance of all covenants and obligations of landlord under the Lease
accruing from and after the date that it takes title to the Property; or
(b) except as set forth in (a), above, liable for any failure of any
prior landlord to construct any improvements;
(c) subject to any offsets, credits, claims or defenses which Tenant
might have against any prior landlord; or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1) month in
advance to any prior landlord; or
(e) be liable to Tenant hereunder or under the terms of the Lease
beyond its interest in the Property.
(f) liable or responsible for or with respect to the retention,
application and or/return to the Tenant of any security deposit paid to Borrower
or any prior Landlord, unless and until Lender or such Acquiring Party has
actually received for its own account as landlord the full amount of such
security deposit.
Notwithstanding the foregoing, Tenant reserves its rights to any and all
claims or causes of action against such prior landlord for prior losses or
damages and against the successor landlord for
47
all losses or damages arising from and after the date that such successor
landlord takes title to the Property.
5. RENT. Tenant has notice that the Lease and the rents and all other
sums due thereunder have been assigned to Lender as security for the loan
secured by the Security Instrument. In the event Lender notifies Tenant of the
occurrence of a default under the Security Instrument and demands that Tenant
pay its rents and all other sums due or to become due under the Lease directly
to Lender, Tenant shall honor such demand and pay its rent and all other sums
due under the Lease directly to Lender or as otherwise authorized in writing by
Lender. Landlord hereby irrevocably authorizes Tenant to make the foregoing
payments to Lender upon such notice and demand.
6. LENDER TO RECEIVE NOTICES. Tenant shall notify Lender of any default
by Landlord under the Lease which would entitle Tenant to cancel the Lease, and
agrees that, notwithstanding any provisions of the Lease to the contrary, no
notice of cancellation thereof shall be effective unless Lender shall have
received notice of default giving rise to such cancellation and shall have
failed within sixty (60) days after receipt of such notice to cure such default,
or if such default cannot be cured within sixty (60) days, shall have failed
within sixty (60) days after receipt of such notice to commence and thereafter
diligently pursue any action necessary to cure such default.
7. NOTICES. All notices or other written communications hereunder shall
be deemed to have been properly given (i) upon delivery, if delivered in person
with receipt acknowledged by the recipient thereof, (ii) one (1) Business Day
(hereinafter defined) after having been deposited for overnight delivery with
any reputable overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly maintained
by the U.S. Postal Service and sent by registered or certified mail, postage
prepaid, return receipt requested, addressed to the receiving party at its
address set forth above, and:
if to Tenant, to
the attention of:
-------------------------------
-------------------------------
-------------------------------
and
if to Lender:
to the attention of:
-------------------------------
-------------------------------
-------------------------------
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Paragraph 6, the term "Business Day"
shall mean any day other than Saturday, Sunday or any other day on which banks
are required or authorized to close in New York, New York.
48
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
8. SUCCESSORS. The obligations and rights of the parties pursuant to this
Agreement shall bind and inure to the benefit of the successors, assigns, heirs
and legal representatives of the respective parties. In addition, Tenant
acknowledges that all references herein to Landlord shall mean the owner of the
landlord's interest in the Lease, even if said owner shall be different than the
Landlord named in the Recitals.
9. DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be executed in
any number of duplicate originals and each duplicate original shall be deemed to
be an original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as of the
date first above written.
LENDER:
---------------------------
By:
----------------------------------------
--------------------------------------------
--------------------------------------------
Name:
--------------------------------------
Authorized Signatory
TENANT:
--------------------------------------------
By:
-----------------------------------------
--------------------------------------------
--------------------------------------------
Name:
---------------------------------
Title:
----------------------------------
The undersigned as the Landlord named in the
Recitals or as successor thereto hereby
accepts and agrees to be bound by the
provisions of Paragraph 5 hereof.
49
EXHIBIT "E-2"
FORM OF REA ESTOPPEL
TO: Inland Real Estate Acquisitions, Inc., its lenders, successors and assigns
Inland _____________________________, L.L.C., its lenders, successors and
assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
RE: Reciprocal Easement Agreement dated as of _________________________, and
recorded at __________________________________________________ (the "REA")
Ladies and Gentlemen:
The following statements are made with the knowledge that Inland Real
Estate Acquisitions, Inc. and Inland ___________________________________,
L.L.C., and their respective successors and assigns (individually and
collectively, as applicable, "Purchaser"), and their respective lenders and/or
investors, are relying on them in connection with the acquisition and financing
of the certain property encumbered by the REA by Purchaser and Purchaser and its
respective lenders, successors, assigns and successor owners of such property
may rely on such statements for that purpose.
The undersigned hereby certifies, represents, warrants, covenants and
agrees as follows:
1. The undersigned is a party to (or owns certain property benefited
and/or burdened by) the REA.
2. There have been no amendments, modifications, revisions or supplements
to the REA except as stated above.
3. The REA is in good standing and in full force and effect.
4. No parties to the REA (or properties benefited and/or burdened by the
REA) are in default under the REA beyond any applicable cure period, and no
event has occurred which, with the giving of notice or passage of time, or both,
could result in such default.
5. As of the date of this estoppel certificate, there is no dispute or
litigation between or among any of the parties to the REA or properties
benefited and/or burdened by the REA.
6. All work that may be required to be performed by the current owner of
the Property under the terms of the REA has been satisfactorily completed.
7. [state here any required disclosures regarding REA contributions]
50
EXECUTED as of the ______ day of ________________, 200_.
[REA party]
By:
---------------------------------
Name:
---------------------------------
Its:
-----------------------------------
51
EXHIBIT "E-3"
FORM OF GROUND LEASE ESTOPPEL
TO: Inland Real Estate Acquisitions, Inc., and its lenders,
and their respective successors and/or assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Inland _____________________________, L.L.C., and its lenders,
and their respective successors and/or assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
RE: Ground Lease Agreement ("Ground Lease") dated the 31st day of January,
2002, by and between International Place Associates III, Ltd. ("Ground
Lessor") and IPSC Associates, L.L.C. ("Ground Lessee") demising that
certain real estate legally described on Exhibit A attached hereto and
located at the southeast corner of the intersection of NW 000xx Xxxxxx xxx
XX 00xx Xxxxxx in Miami, Florida ("Property")
Ladies and Gentlemen:
The following statements are made with the knowledge that Inland Real
Estate Acquisitions, Inc., an Illinois corporation, and Inland
_____________________________, L.L.C., a Delaware limited liability company, and
their respective successors and assigns (individually and collectively, as
applicable, "Purchaser"), and their respective lenders and/or investors are
relying on them in connection with the acquisition and financing by Purchaser of
the Leasehold Estate ("Leasehold Estate") created by the Ground Lease and, in
connection therewith, the assignment of the Ground Lease to Purchaser.
Accordingly, Purchaser and its respective lenders, successors, assigns and
successor owners of the Leasehold Estate may rely on such statements for that
purpose.
The undersigned Ground Lessor hereby certifies, represents, warrants,
covenants and agrees as follows:
1. Ground Lessor is the lessor under the Ground Lease with Ground Lessee.
The Ground Lease demises to Ground Lessee the exclusive use of the Property. The
initial term of the Ground Lease commenced on or about January 31, 2002 and will
expire on June 30, 2066. There have been no amendments, modifications, revisions
or supplements to the Ground Lease, and there are no other agreements of any
kind between Ground Lessor and Ground Lessee regarding the Property and the
Leasehold Estate. Ground Lessor has not assigned or transferred its right, title
and interest in, to and under the Ground Lease or the Property.
2. The Ground Lease has been duly authorized and executed by Ground
Lessor, is binding upon and enforceable against Ground Lessor, and is in good
standing and in full force and effect. Attached is a true, correct and complete
copy of the Ground Lease.
3. Ground Lessor hereby consents to the assignment of Ground Lessee's
interest in, to and under the Ground Lease to Purchaser. Ground Lessor, for
itself, its successors and assigns, hereby
52
confirms that (a) it has no right to consent to or approve of, or to require any
third party to consent to or approve of, the renovation, remodeling, rebuilding,
maintenance and repair of any of the improvements and other structures located
upon the Property, and (b) until the expiration or earlier termination of the
Ground Lease, Ground Lessor has no right, title or interest in or to any
improvements or other structures located on the Property.
4. Ground Lessee is currently obligated to pay rent under the Lease in
the annual amount of ____________________________ Dollars ($__________), payable
monthly on the first day of each calendar month. All rent has been paid under
the Ground Lease through ________________________. No rent under the Lease has
been paid more than (1) month in advance, and no other sums have been deposited
with Ground Lessor as security under the Ground Lease. Ground Lessor has no
claims or defenses to the enforcement of the Ground Lease by Ground Lessee.
Ground Lessor has not rebated, reduced or waived any amounts due from Ground
Lessee under the Ground Lease.
5. Neither Ground Lessor nor Ground Lessee is in default under the Ground
Lease beyond any applicable cure period and no event has occurred which, with
the giving of notice or passage of time, or both, could result in such default.
As of the date of this estoppel certificate, there is no dispute between Ground
Lessor and Ground Lessee, and there is no litigation between Ground Lessor and
Ground Lessee with respect to the Ground Lease or the Property. Ground Lessor
has not received any notice of any present violation of any federal, state,
county or municipal laws, regulations, ordinances, order or directives relating
to use, operation or condition of the Property. The Property is assessed as a
separate parcel for real estate tax purposes.
6. All obligations and conditions under the Ground Lease to be performed
to date by Ground Lessor and Ground Lessee have been satisfied, free of defenses
and set-offs, including all construction work at the Property.
7. If so requested by Purchaser, Ground Lessor shall send to any lender
of Purchaser copies of all notices sent by Ground Lessor under and pursuant to
the Ground Lease.
8. Ground Lessor has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of Ground Lessee's interest in the
Ground Lease. Ground Lessor has not (a) applied for the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of the Property, (b) admitted in writing its
inability to pay its debts as they become due, (c) made a general assignment for
the benefit of its creditors, (d) filed a voluntary petition or commenced a
voluntary case or proceeding under the Federal Bankruptcy Code, (e) been
adjudicated a bankrupt or insolvent, (f) filed a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up or composition or adjustment of debts, (g) received any notice of any
petition filed against it in an involuntary case or proceeding under the Federal
Bankruptcy Code, or (h) taken any corporate, partnership, limited liability
company or other action for the purpose of effecting any of the foregoing.
[SIGANTURE ON FOLLOWING PAGE]
53
EXECUTED as of the ______ day of _______________, 2004,
GROUND LESSOR:
---------------------------------------
By:
---------------------------------
Name:
---------------------------------
Title:
----------------------------------
54
EXHIBIT "F"
ANCHOR LEASES AND ANCHOR TENANT SPACES
BED BATH & BEYOND PLAZA
STARBUCKS CORPORATION d/b/a STARBUCKS
00000 X.X. 00xx Xxxxxx
10/8/03 Commercial Lease
VITAFOODS ENTERPRISES, INC. d/b/a FUDDRUCKERS
00000 X.X. 00xx Xxxxxx
06/24/03 Shopping Center Lease
12/02/03 First Amendment to Shopping Center Lease
SPRINT SPECTRUM REALTY COMPANY d/b/a SPRINT PCS
00000 X.X. 00xx Xxxxxx
08/31/01 Retail Lease
06/01/02 Assignment and Assumption of Lease
09/20/02 First Amendment to Retail Lease
10/01/03 Second Amendment to Retail Lease
PARTY CITY OF MIAMI (DORAL), INC. d/b/a PARTY CITY
00000 X.X. 00xx Xxxxxx
09/12/02 Shopping Center Lease
09/12/02 Limited Guaranty
09/30/03 First Amendment to Shopping Center Lease
BED BATH & BEYOND INC. d/b/a BED BATH & BEYOND
00000 X.X. 00xx Xxxxxx
12/06/02 Lease Agreement
OFFICE DEPOT, INC. d/b/a OFFICE DEPOT
00000 X.X. 00xx Xxxxxx
09/02/03 Lease
XXXXX BEAUTY COMPANY, INC. d/b/a XXXXX BEAUTY
00000 X.X. 00xx Xxxxxx
03/28/03 Shopping Center Lease
NEW CARGO FURNITURE, INC. d/b/a CARGOKIDS!
00000 X.X. 00xx Xxxxxx
04/10/03 Lease Agreement
55
PIER 1 IMPORTS (U.S.), INC. d/b/a PIER 1 IMPORTS
00000 X.X. 00xx Xxxxxx
10/22/02 Lease Agreement
56
EXHIBIT "G"
INCOME ANALYSIS
TENANT SIZE RATE TOTAL PERCENT
---------------------------------------------------------------------------------------------
Building 1A Fudruckers - S 6,000 $ 27.00 $ 162,000 7.82%
Xxxxxxxx 0X XxxxXxxxx - X 1,402 $ 35.00 $ 49,070 2.37%
Xxxxxxxx 0X Xxxxxxx - X 1,320 $ 28.85 $ 38,082 1.84%
Building 1D Nails - S 1,301 $ 28.00 $ 36,428 1.76%
Building 1E Local - Vacant - LO 1,339 $ 28.00 $ 37,492 1.81%
Building 1F Local - Vacant - LO 1,592 $ 27.00 $ 42,984 2.08%
Building 1G Sprint - S 3,600 $ 28.50 $ 102,600 4.96%
Building 2A Xxxx Grill - S 2,400 $ 26.00 $ 62,400 3.01%
Building 2B Party City - S 11,000 $ 18.00 $ 198,000 9.56%
Building 2C Bed Bath Beyond - S 28,053 $ 13.50 $ 378,716 18.29%
Building 2D Office Depot - S 16,175 $ 23.32 $ 377,201 18.22%
Building 2E Dentist - S 1,707 $ 24.00 $ 40,968 1.98%
Xxxxxxxx 0X Xxxx 0 Xxxxxxx - X 10,545 $ 25.50 $ 268,898 12.99%
Building 3B Cargo Kids - S 4,556 $ 26.10 $ 118,912 5.74%
Building 3C Xxxxx Beauty - S 1,368 $ 25.00 $ 34,200 1.65%
Building 3D Bo Concept - S 5,100 $ 24.00 $ 122,400 5.91%
------------------------------------------------------------
TOTALS 97,458 2,070,350 100.00%
Vacancy - Excludes: Party City, Office 25,685 42,984 **
Depot, Bed Bath Beyond, Pier 1 and Fudruckers
EFFECTIVE GROSS $ 2,027,366
EXPENSE ANALYSIS
Land Lease $ 400,000
Management Fee 4.00% $ 81,095
Vacancy - Locals 1,592 $ 5.00 $ 7,960
G & A $ 20,000
Reserves 97,458 $ 0.15 $ 14,619
------------
TOTAL EXPENSES $ 523,673
NET INCOME AVAILABLE FOR DEBT $ 1,503,692
LEASING STATUS
SIZE % RENT %
-----------------------------------------------------
Signed Lease S 94,527 96.99% 1,989,874 96.11%
Lease Out LO 2,931 3.01% 80,476 3.89%
Vacant 0.00% 0.00%
-----------------------------------------------------
TOTALS 97,458 100.00% 2,070,350 100.00%
** This is the vacancy allowance referred to in Section 11.1. of the
Agreement.
EXHIBIT "H"
RENT ROLL 758 BED, BATH & BEYOND PLAZA International Place Associates, L.L.C.
---------------------------------------------------------------------------------------------------------------------------
d/b/a STARBUCKS MONTHLY RENTAL CHARGES RATE / SQ FT
758 758001 Starbucks Corporation Base 4,089.17 35.00
Xxxx XX 00000 CAM 262.88 2.25
Status Active Insurance 87.63 0.75
Area 1,402 Real Estate Taxes 175.25 1.50
Term 10 Years Other 0.00
Term End 3/31/14 Sales Tax 323.05
Options Three, five year options Total Due 4,937.98 42.27
d/b/a FUDDRUCKERS MONTHLY RENTAL CHARGES RATE / SQ FT
758 759003 Vitafoods Enterprises, Inc. Base 13,500.00 27.00
Unit ID 1068O CAM 750.00 1.50
Status Active Insurance 375.00 0.75
Area 6,000 Real Estate Taxes 875.00 1.75
Term 10 Years Other 0.00
Term End Sales Tax 1,085.00
Options Four, five year option terms Total Due 16,585.00 33.17
Automatically exercised
d/b/a QUIZNO'S CLASSIC SUBS MONTHLY RENTAL CHARGES RATE / SQ FT
758 761004 CH Restaurant Group, Inc. #2 Base 3,080.00 28.00
Xxxx XX 00000 CAM 275.00 2.50
Status Unoccupied Insurance 55.00 0.50
Area 1,320 Real Estate Taxes 192.50 1.75
Term 05 Years Other 0.00
Term End Sales Tax 252.18
Options Two, five year options Total Due 3,854.68 35.04
d/b/a VACANT MONTHLY RENTAL CHARGES RATE / SQ FT
753 762001 Vacant Base 0.00 0.00
Xxxx XX 00000 CAM 0.00 0.00
Status Vacant Insurance 0.00 0.00
Area 1,339 Real Estate Taxes 0.00 0.00
Term Other 0.00
Term End Sales Tax 0.00
Options n/a Total Due 0.00 0.00
d/b/a A+ NAILS MONTHLY RENTAL CHARGES RATE / SQ FT
758 762500 A+ Nails, Inc. Base 3,035.67 28.00
Xxxx XX 00000 CAM 271.04 2.50
Status Active Insurance 54.21 0.50
Area 1,301 Real Estate Taxes 189.73 1.75
Term 5 Years Other 0.00
Term End Sales Tax 248.55
Options One, five year option Total Due 3,799.20 35.04
d/b/a VACANT MONTHLY RENTAL CHARGES RATE / SQ FT
758 763008 Vacant Base 0.00 0.00
Xxxx XX 00000 CAM 0.00 0.00
Status Vacant Insurance 0.00 0.00
Area 1,592 Real Estate Taxes 0.00 0.00
Term Other 0.00
Term End Sales Tax 0.00
Options n/a Total Due 0.00 0.00
March 18, 2004 Page 1 of 3
d/b/a SPRINT PCS MONTHLY RENTAL CHARGES RATE / SQ FT
758 764003 Sprint Spectrum Realty Company, Base 8,602.25 28.50
L.P.
Xxxx XX 00000 CAM 679.13 2.25
Status Active Insurance 75.46 0.25
Area 3,622 Real Estate Taxes 603.67 2.00
Term 7 Years Other 0.00
Term End 1/31/11 Sales Tax 0.00
Options Two, five year options Total Due 9,960.51 33.00
d/b/a MOE'S SOUTHWEST GRILL MONTHLY RENTAL CHARGES RATE / SQ FT
758 766000 Moe's International, LLC Base 5,200.00 26.00
Xxxx XX 00000 CAM 300.00 1.50
Status Active Insurance 150.00 0.75
Area 2,400 Real Estate Taxes 360.00 1.75
Term 10 Years Other 0.00
Term End Sales Tax 390.00
Options Two, five year options Total Due 6,390.00 31.95
d/b/a PARTY CITY MONTHLY RENTAL CHARGES RATE / SQ FT
758 767006 Party City of Miami (Doral), Inc. Base 16,395.00 18.00
Xxxx XX 00000 CAM 1,821.67 2.00
Status Active Insurance 455.42 0.50
Area 10,930 Real Estate Taxes 1,821.67 2.00
Term 10 Years Other 0.00
Term End 8/31/14 Sales Tax 1.435.34
Options Two, five year options Total Due 21,929.10 24.08
d/b/a BED BATH & BEYOND MONTHLY RENTAL CHARGES RATE / SQ FT
758 769003 Bed Bath & Beyond Inc. Base 31,559.63 13.50
Xxxx XX 00000 CAM 3,039.08 1.30
Status Active Insurance 0.00 0.00
Area 28,053 Real Estate Taxes 0.00 0.00
Term 15 Years Other 0.00
Term End Sales Tax 2,421.91
Options Four, five year options Total Due 37,020.62 15.84
d/b/a OFFICE DEPOT MONTHLY RENTAL CHARGES RATE / SQ FT
758 779000 Office Depot, Inc. Base 31,433.42 23.32
Xxxx XX 00000 CAM 2,695.83 2.00
Status Unoccupied Insurance 1,010.94 0.76
Area 16,175 Real Estate Taxes 0.00 0.00
Term 10 Years Other 0.00
Term End Sales Tax 2,459.81
Options Four, five year options Total Due 37,600.00 27.89
d/b/a DENTIST MONTHLY RENTAL CHARGES RATE / SQ FT
758 782008 Doral Dental Partners, Inc. Base 3,414.00 24.00
Xxxx XX 00000 CAM 213.38 1.50
Status Active Insurance 106.69 0.75
Area 1,707 Real Estate Taxes 248.94 1.75
Term 10 Years Other 0.00
Term End Sales Tax 278.81
Options Two, five year options Total Due 4,261.82 29.96
March 18, 2004 Page 2 of 3
d/b/a BO CONCEPT MONTHLY RENTAL CHARGES RATE / SQ FT
758 786001 Gruppo Sima Corporation Base 10,200.00 24.00
Xxxx XX 00000 CAM 1,062.50 2.50
Status Active Insurance 212.50 0.50
Area 5,100 Real Estate Taxes 743.75 1.75
Term 05 Years Other 0.00
Term End Sales Tax 855.31
Options One, five year option Total Due 13,074.06 30.76
d/b/a XXXXX BEAUTY #3067 MONTHLY RENTAL CHARGES RATE / SQ FT
758 787007 Xxxxx Beauty Company, Inc. Base 2,850.00 25.00
Xxxx XX 00000 CAM 285.00 2.50
Status Active Insurance 57.00 0.50
Area 1,368 Real Estate Taxes 171.00 1.50
Term 05 Years Other 0.00
Term End Sales Tax 235.41
Options Two, five year options Total Due 3,598.41 31.57
d/b/a CARGOKIDS ? MONTHLY RENTAL CHARGES RATE / SQ FT
758 789009 New Cargo Furniture, Inc. Base 9,909.30 26.05
Xxxx XX 00000 CAM 855.94 2.25
Status Unoccupied Insurance 0.00 0.00
Area 4,565 Real Estate Taxes 0.00 0.00
Term 10 Years Other 0.00
Term End Sales Tax 753.57
Options Three, five year options Total Due 11,518.81 30.28
d/b/a PIER 1 IMPORTS MONTHLY RENTAL CHARGES RATE / SQ FT
758 792004 Pier 1 Imports (U.S.), Inc. Base 22,408.13 25.41
Xxxx XX 00000 CAM 1,984.13 2.25
Status Active Insurance 0.00 0.00
Area 10,582 Real Estate Taxes 0.00 0.00
Term 10 Years Other 0.00
Term End 12/31/13 Sales Tax 1,707.46
Options Three, five year options Total Due 26,099.72 29.60
PROPERTY SUMMARY
SPACES AREA BASE RENT 165,676.57
ACTIVE 11 72,465 CAM 14,495.58
PROPERTY INFO 1 0 INSURANCE 2,639.85
UNOCCUPIED 3 22,060 REAL ESTATE TAXES 5,371.51
VACANT 2 2,931 OTHER 0
TOTALS 17 97,456 SALES TAX 12,446.40
March 18, 2004 Page 3 of 3
EXHIBIT "I"
GENERAL CONTRACTOR RELIANCE LETTER
Inland Real Estate Acquisitions, Inc., and
Its lenders, successors and assigns (collectively "Inland")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Re: General Contract dated _________________ ("Contract") by and between
_____________________ ("General Contractor") and _____________________
("Owner") pertaining to the construction of certain improvements in
Miami, Florida, commonly known as Bed Bath & Beyond Plaza (the
"Improvements")
Pursuant to the terms of the Contract, General Contractor is providing
warranties to the Owner regarding workmanship and material with respect to the
Improvements constructed pursuant thereto. In partial consideration of Owner's
execution of the Contract, General Contractor agreed that such warranties are
assignable to Owner's purchasers and assigns.
General Contractor acknowledges and agrees on behalf of itself and all
others, including, but not limited to, subcontractors, who by their agreements
with General Contractor have agreed to provide labor or materials pursuant to
warranties for work performed or materials supplied, as follows:
1. that the aforementioned warranties are assignable and are being
assigned to Inland pursuant to a separate written agreement between
Inland and Owner (the "Assignment"), that such assignment is permitted
pursuant to the Contract, and General Contractor expressly consents to
such assignment;
2. that Inland would not consummate its acquisition of the Improvements
without General Contractor's execution of this letter;
3. that Inland is relying hereon and the agreements of General Contractor
set forth herein, and that Inland is entitled to so rely;
4. that the Contract is in full force and effect and that Owner has fully
performed thereunder, General Contractor has been fully paid as
required under the Contract, that the warranties provided for therein
have not expired, and that General Contractor has no defense to the
enforceability of all warranties provided by it pursuant to the
Contract;
59
5. that General Contractor will promptly perform all required warranty
work with respect to the Improvements for and at the request and
direction of Inland without any requirement of direction, consent or
acknowledgement by or on behalf of Owner, the same as if requested or
directed by Owner, and without any requirement that Inland first
proceed to obtain any remedy through or from Owner whether pursuant to
the Assignment, or any representation or warranty of Owner set forth
in any other agreement between Owner and Inland;
6. that the Assignment together with this letter agreement creates
privity of contract between Inland and General Contractor, and that as
a result thereof and General Contractor's execution hereof, Inland is
entitled to enforce compliance with the terms of the Contract as they
apply to the warranties being assigned by the Assignment, in the same
manner and fashion as if Inland were a party to the Contract, all in
the place and stead of Owner;
7. that General Contractor will diligently complete all work not yet
completed with respect to warranty claims that arose or have been made
prior to the date hereof;
8. that the Assignment and this letter agreement did not and does not
void, invalidate, or cause the expiration or termination of any
warranty or any claim made or that may have been made by Owner; and
9. that all warranties set forth in the Contract remain in full force and
effect.
---------------------------------------
General Contractor
By:
--------------------------------
Its:
--------------------------------
Name:
--------------------------------
60
EXHIBIT "J"
LEASING STATUS SCHEDULE
1. LEASE FOR 00000 X.X. 00XX XXXXXX
1 TENANT - YOUNG EYE ASSOCIATES, O.D.P.A.
2. SQUARE FOOTAGE - 1320
3. USE - OPTICAL STORE FOR SALE OF EYEGLASSES, CONTACTS, ETC.
4. TERM - 5 YEARS WITH 5-YEAR OPTION
5. GUARANTY - 3 YEARS
6. RENT - $28.00 PER SQUARE FOOT FOR FIRST YEAR AND CPI THEREAFTER
7. RENTAL COMMITMENT DATE - 120 DAYS AFTER DELIVERY OF PREMISES
8. TENANT IMPROVEMENT ALLOWANCE - $26,400 IN LIEU OF "VANILLA
SHELL".
2. LEASE FOR 00000 X.X. 00XX XXXXXX
1. TENANT - COLD STONE CREAMERY LEASING COMPANY, INC.
2. SQUARE FOOTAGE - 1592
3. USE - COLD STONE CREAMERY ICE CREAM STORE
4. TERM - 5 YEAR WITH 2 5-YEAR OPTIONS
5. GUARANTY - YES
6. RENT - $30.50 PER SQUARE FOOT FOR FIRST YEAR AND 9% EVERY 3
YEARS THEREAFTER
7. RENTAL COMMITMENT DATE - 180 DAYS FROM DATE OF LEASE
8. TENANT IMPROVEMENT ALLOWANCE - $20.00 PER SQUARE FOOT IN LIEU OF
"VANILLA SHELL".
61
EXHIBIT "K"
INITIAL 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. Summary of recent lease transactions including rate and tenant
improvement allowances
6. List of current tenants on percentage rent only or percentage
rent in lieu basis
7. Year-to-date operating statement
8. General ledger statement + Year-to-date statement
9. Last three years' bills for:
a. Real estate taxes
b. Statement of current monthly amounts paid by tenants for
CAM/tax/insurance plus a year-to-date balance of amounts paid
by each tenant
10. Receivables status/aging report
11. Tenant financial statements in Landlord's possession
12. Lease expiration - next three years
a. Status of expirations, with kick-outs, with respect to renewal
possibilities.
14. Leasing Plan
B. EXPENSE INFORMATION
1. Utility bills
a. Water
b. Electric
2. Copies of all service agreements, contracts or any leases that
encumber the property
a. Fire/burglar alarm
b. Cleaning
c. Exterminating
d. Landscaping
62
e. Security service
f. Towing
g. Uniform rental
h. Any other service contracts or leases not cancelable in 90
days
i. Scavenger
j. Advertising
3. Capital improvements
a. Assignable warranties
C. ENVIRONMENTAL REPORTS
1. Phase I
D. MISCELLANEOUS
1. Warranties
2. Current tenant contact list
3. Certificates of insurance from tenants
4. Site plan
5. Certificates of Completion for building shells
6. Building Plans and Specifications
8. Marketing/leasing brochures
9. Survey
10. Building photographs and aerials
63
EXHIBIT "L"
FINAL DUE DILIGENCE CHECKLIST
1. Updates of any item set forth on the Initial Due Diligence Checklist (the
"Initial List") which item by its terms or nature, was prepared as of a
specific date when delivered pursuant to the Initial List.
2. Copies of any item set forth in the Initial List which (a) was not in
Seller's possession at the time of delivery of items pursuant to the
Initial List, but is in Seller's possession on or prior to Closing; or (b)
was amended, altered or otherwise materially changed subsequent to delivery
pursuant to the Initial List.
64
EXHIBIT "M"
KPMG LLP
Peat Marwick Plaza
000 X Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We are writing you at your request to confirm our understanding that your audit
of the Historical Summary of Gross Income and Direct Operating Expenses
(Historical Summary) of ____________________ (the Property) for the year ended
December 31, 200_ was made for the purpose of expressing an opinion as to
whether the Historical Summary presents fairly, in all material respects, the
gross income and direct operating expenses in conformity with the accrual basis
of accounting. In connection with your audit we confirm, to the best of our
knowledge and belief, the following representations made to you during your
audit:
1. We have made available to you:
a. All financial records and related data.
b. All minutes of the meetings of stockholders, directors, and committees
of directors, or summaries of actions of recent meetings for which
minutes have not yet been prepared.
2. There have been no:
a. Instances of fraud involving any member of management or employees who
have significant roles in internal control.
b. Instances of fraud involving others that could have a material effect
on the Historical Summary.
c. Other instances of fraud perpetrated on or within the Property.
d. Communications from regulatory agencies concerning noncompliance with,
or deficiencies in, financial reporting practices that could have a
material effect on the Historical Summary.
65
e. Violations or possible violations of laws or regulations, the effects
of which should be considered for disclosure in the Historical Summary
or as a basis for recording a loss contingency.
3. There are no:
a. Unasserted claims or assessments that our lawyer(s) has (have) advised
us are probable of assertion and must be disclosed in accordance with
Statement of Financial Accounting Standards (SFAS) No. 5, Accounting
for Contingencies.
b. Material liabilities or gain or loss contingencies that are required
to be accrued or disclosed by SFAS No. 5.
c. Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
d. Events that have occurred subsequent to the balance sheet date and
through the date of this letter that would require adjustment to or
disclosure in the Historical Summary.
4. The Property has complied with all aspects of contractual agreements that
would have a material effect on the Historical Summary in the event of
noncompliance.
5. All income from operating leases is included as gross income in the
Historical Summary. No other forms of revenue are included in the
Historical Summary.
Further, we confirm that we are responsible for the fair presentation in the
Historical Summary of Gross Income and Direct Operating Expenses for the year
ended December 31, 200_, in conformity with generally accepted accounting
principles.
Sincerely,
66
FIRST AMENDMENT TO
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO
PURCHASE AGREEMENT is made as of the _______ day of
September, 2004 by and between IPSC Associates, L.L.C., a Florida limited
liability company ("Seller"), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation ("Purchaser").
RECITALS
A. Purchase and Seller entered into an Agreement to Purchase dated as of
March 24, 2004 (the "
Purchase Agreement") pursuant to which Seller agreed to
sell and Purchaser agreed to purchase Seller's ground lease interest pertaining
to the Shopping Center known as Bed Bath & Beyond Plaza, Miami, Florida.
B. Seller and Purchaser now desire to amend the
Purchase Agreement upon
and subject to the terms and conditions hereinafter set forth.
NOW, THEREOFORE, in consideration of the mutual covenants and agreements
contained in this First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. RECITALS. The Recitals set forth herein above are incorporated as if
though fully set forth herein.
2. AMENDMENTS. The
Purchase Agreement is amended as follows:
a. Article 1.1 Definitions is hereby amended by changing the date in
the definition of "Closing Date" from September 1, 2004 to
September 24, 2004;
b. The "Outside Date" set forth in the last grammatical paragraph of
Section 8.1 (a) is changed from "September 1, 2004" to "September
24, 2004.
3. CONFLICTS. Except as set forth herein, the terms of the
Purchase
Agreement shall remain unchanged. In the event of a conflict between the terms
hereof and the terms of the
Purchase Agreement, the terms hereof shall control.
- 1 -
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Name: XXXXX XXXXXXXXXX
----------------------------------
Title: EXECUTIVE VICE-PRES.
---------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
BY: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------
Title: Acquisition Officer
-------------------------------------
- 2 -
SECOND AMENDMENT TO
PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO
PURCHASE AGREEMENT is made as of the 24th day of
September, 2004 by and between IPSC Associates, L.L.C., a Florida limited
liability company ("Seller"), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation ("Purchaser").
RECITALS
A. Purchase and Seller entered into an Agreement to Purchase dated as of
March 24, 2004, as amended (the "Purchase Agreement") pursuant to which Seller
agreed to sell and Purchaser agreed to purchase Seller's ground lease interest
pertaining to the Shopping Center known as Bed Bath & Beyond Plaza, Miami,
Florida.
B. Seller and Purchaser now desire to amend the Purchase Agreement upon
and subject to the terms and conditions hereinafter set forth.
NOW, THEREOFORE, in consideration of the mutual covenants and agreements
contained in this First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. RECITALS. The Recitals set forth herein above are incorporated as if
though fully set forth herein.
2. AMENDMENTS. The Purchase Agreement is amended as follows:
a. Article 1.1 Definitions is hereby amended by changing the date in
the definition of "Closing Date" from September 24, 2004 to
September 29, 2004;
b. The "Outside Date" set forth in the last grammatical paragraph of
Section 8.1(a) is changed from "September 24, 2004" to "September
29, 2004.
3. CONFLICTS. Except as set forth herein, the terms of the Purchase
Agreement shall remain unchanged. In the event of a conflict between the terms
hereof and the terms of the Purchase Agreement, the terms hereof shall control.
- 1 -
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: XXXXX XXXXXXXXXX
---------------------------------
Title: EXECUTIVE VICE-PRES.
---------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By: /s/ Xxxxx X. Xxxxxxx, Authorized Agent
--------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: Acquisition Officer
--------------------------------------
- 2 -
THIRD AMENDMENT TO PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AGREEMENT is made as of the 29th day of
September, 2004 by and between IPSC Associates, L.L.C., a Florida limited
liability company ("Seller"), and Inland Real Estate Acquisitions, Inc., an
Illinois corporation ("Purchaser").
RECITALS
A. Purchase and Seller entered into an Agreement to Purchase dated as of
March 24, 2004, as amended (the "Purchase Agreement") pursuant to which Seller
agreed to sell and Purchaser agreed to purchase Seller's ground lease interest
pertaining to the Shopping Center known as Bed Bath & Beyond Plaza, Miami,
Florida.
B. Seller and Purchaser now desire to amend the Purchase Agreement upon
and subject to the terms and conditions hereinafter set forth.
NOW, THEREOFORE, in consideration of the mutual covenants and agreements
contained in this First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser agree as follows:
1. RECITALS. The Recitals set forth herein above are incorporated as if
though fully set forth herein.
2. AMENDMENTS. The Purchase Agreement is amended as follows:
a. Article 1.1 Definitions is hereby amended by changing the date in
the definition of "Closing Date" from September 29, 2004 to
October 8, 2004;
b. The "Outside Date" set forth in the last grammatical paragraph of
Section 8.l(a) is changed from "September 29, 2004" to "October
8, 2004.
3. CONFLICTS. Except as set forth herein, the terms of the Purchase
Agreement shall remain unchanged. In the event of a conflict between the terms
hereof and the terms of the Purchase Agreement, the terms hereof shall control.
- 1 -
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: XXXXX XXXXXXXXXX
----------------------------------
Title: EXECUTIVE VICE-PRES
----------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date first written above.
SELLER:
IPSC ASSOCIATES, L.L.C., a Florida limited
liability company
By: IPSC Associates, Ltd., a Florida limited
partnership, Manager
By: Newcaster Devcorp, Inc., a Florida
corporation, its general partner
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
PURCHASER:
INLAND WESTERN MIAMI 19TH STREET,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, it sole member
By: /s/ Xxxxx X. Xxxxxxx
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Name: XXXXX X. XXXXXXX
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Title: Vice President
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