Exhibit 10.10
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE is made and entered into as of the
11th day of November, 2003, by and between DUKE CONSTRUCTION LIMITED
PARTNERSHIP, an Indiana limited partnership ("SELLER"), and INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation ("BUYER").
W I T N E S S E T H T H A T :
WHEREAS, Buyer wishes to purchase, and Seller wishes to sell, the
Project (as hereinafter defined), but only upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the Xxxxxxx
Money, the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
SECTION 1. DEFINITIONS AND EXHIBITS.
1.1 DEFINITIONS. For purposes of this Agreement, each of the
following terms, when used herein with an initial capital letter, shall have the
meaning ascribed to it as follows:
ADDITIONAL RENT EXPENDITURES. As defined in SECTION 4.2.7.
AGREEMENT. This Agreement for Purchase and Sale.
ASSIGNMENT. An Assignment and Assumption Agreement substantially
in the form attached hereto as EXHIBIT I.
XXXX OF SALE. The Xxxx of Sale to be executed by Seller
substantially in the form attached as EXHIBIT C.
BROKER. The broker described in SECTION 15 hereof.
BUILDING. Collectively, the buildings containing approximately
153,803 rentable square feet and located on the Land.
CLOSING. The closing and consummation of the purchase and sale
of the Property pursuant hereto.
CLOSING DATE. The later of (a) December 3, 2003, (b) thirteen
(13) days after the Title and Survey Delivery Date and (c) ten (10) days
after Buyer's delivery to Seller of the Minimum Tenant Estoppels;
provided, however, the Closing shall occur, if at all, no later than
December 15, 2003.
CLOSING STATEMENT. As defined in SECTION 10.2.6.
COMMISSION AGREEMENT. Each agreement for leasing commissions for
the Leases (i) as set forth on EXHIBIT J as commission agreements, or
(ii) executed or amended by Seller after the Contract Date in compliance
with the provisions of SECTION 8 of this Agreement.
CONFIDENTIALITY AGREEMENT. That certain Confidentiality
Agreement dated September 17, 2003 executed by Buyer in favor of Seller
concerning the Property.
CONTRACT DATE. The date upon which this Agreement shall be
deemed effective, which shall be the date first above written.
DEED. The Limited Warranty Deed to be executed by Seller
substantially in the form attached hereto as EXHIBIT F.
DELINQUENT RENTS. As defined in SECTION 4.2.1 (iii).
XXXXXXX MONEY. TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00) together with any interest earned thereon.
XXXXXXX MONEY ESCROW AGENT. Chicago Title Insurance Company is
acting as Xxxxxxx Money Escrow Agent pursuant to the terms and
conditions of the Escrow Agreement and SECTION 3 hereof.
ESCROW AGREEMENT. That certain Xxxxxxx Money Escrow Agreement of
even date herewith among Seller, Buyer and Escrow Agent referred to in
SECTION 3 hereof substantially in the form attached hereto as EXHIBIT B
and by this reference made a part hereof.
GUARANTOR OR GUARANTORS. Each guarantor of any of a Tenant's
duties and obligations under such Tenant's Lease (collectively, the
"Guarantors").
GUARANTY OR GUARANTIES. Each guaranty presently in effect of all
or any of a Tenant's duties and obligations under a Lease (collectively,
the "Guaranties").
IMPROVEMENTS. The Building and any other buildings, structures
and improvements located upon the Land, including Seller's interest in
all systems, facilities, fixtures, machinery, equipment and conduits to
provide fire protection, security, heat, exhaust, ventilation, air
conditioning, electrical power, light, plumbing, refrigeration, gas,
sewer and water thereto (including all replacements or additions thereto
between the date hereof and the Closing Date).
INSPECTION DATE. November 26, 2003.
LAND. All that tract or parcel of land containing approximately
26 acres described in EXHIBIT A attached hereto and by this reference
made a part hereof and all privileges, rights, easements, hereditaments
and appurtenances thereto belonging, and all right, title and interest
of Seller in and to any streets, alleys, passages and other rights of
way included therein or adjacent thereto (before or after the vacation
thereof).
LEASE; LEASES. Each lease of space within the Improvements and
any amendments thereto (a) in force and effect as of Contract Date,
and/or (b) executed by Seller after the Contract Date in compliance with
the provisions of SECTION 8 of this Agreement.
LETTER OF INTENT. That certain letter from Seller to Buyer dated
October 23, 2003.
MINIMUM TENANT ESTOPPELS. As defined in Section 9.1(c).
PERMITTED TITLE EXCEPTIONS. (i) The lien of unpaid taxes not yet
due and payable; (ii) those matters disclosed on the Title Commitment or
Survey to which Buyer does not object, or to which objection Buyer
waives, pursuant to SECTION 5 of this Agreement; and (iv) the rights of
Tenants, as tenants only.
PERSONAL PROPERTY. Seller's interest in tangible personal
property located on the Property and used in connection with operation
and maintenance of the Improvements including, but not limited to the
following: None
PROJECT. The Property and the Vacant Site.
PROPERTY. All of Seller's right, title and interest in, to and
under the following property: (i) the Land; (ii) the Improvements; and
(iii) all rights of way or use, trade names and marks (including the
name Stony Creek Marketplace, and excluding any right to the name "Duke"
or "Weeks"), tenements, hereditaments, appurtenances and easements now
or hereafter belonging or pertaining to any of the foregoing, except
those, if any, hereinafter reserved to Seller; and (iv) the Leases.
PURCHASE PRICE. The Purchase Price for the Property shall be
TWENTY FIVE MILLION SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($25,750,000.00).
RENT ROLL. The rent roll attached hereto as EXHIBIT D or any
updated version thereof.
RENT. The total amount of base or fixed rent, overage rent
(including, without limitation, percentage rents, consumer price index
escalation payments and other similar rental payments in excess of
fixed, minimum and base rents under the Leases, whether finally
determined before or after the expiration of the fiscal years under
various Leases), estimated payments of taxes and operating expenses and
other amounts under the Leases.
SECURITY DEPOSITS. Any and all security deposits pursuant to the
Leases and as shown on the Rent Roll.
SELLER DELIVERIES. Seller's existing plans and specifications
for the Building, if any, any environmental reports prepared by third
parties and in Seller's possession and Seller's existing survey of the
Property.
SERVICE CONTRACTS. All of the service or management contracts,
equipment, labor or material contracts, maintenance or repair contracts
or other agreements that are in force and effect and affect the Project
or the operation, repair or maintenance thereof that are (i) listed as
service contracts on EXHIBIT J, or (ii) executed or amended by Seller
after the Contract Date in compliance with the provisions of SECTION 8
of this Agreement.
SURVEY. An ALTA/ACSM survey of the Project prepared by Xxxxxxxx,
LLC, with the certification in the form attached hereto as EXHIBIT P.
TAX REFUND. As defined in SECTION 4.2.2 (iii).
TENANT OR TENANTS. Each Tenant that has executed a Lease.
TENANT CONDITIONS. As defined in Section 9.1(h).
TENANT ESTOPPEL CERTIFICATE. An estoppel certificate executed by
a Tenant substantially in the form attached hereto as EXHIBIT M or the
form required by the particular Tenant's Lease.
TITLE AND SURVEY DELIVERY DATE. As defined in SECTION 5.
TITLE COMMITMENT. Commitment(s) issued by Title Insurer for an
owner's policy of a title insurance (in the form most recently adopted
by ALTA) in the amount of the Purchase Price, covering
title to the Property and in an amount to be determined once the Vacant
Site Purchase Price can be calculated covering title to the Vacant Site,
and including copies of all documents and plats of record.
TITLE INSURER. First American Title Insurance Company.
VACANT SITE. All of Seller's right, title and interest in, to
and under the following property: (i) the land containing approximately
6 acres and contiguous to the northern boundary of the Land and labeled
"Vacant Site" as shown on Exhibit A; (ii) all improvements to be
constructed on the Vacant Site; and (iii) all rights of way or use,
trade names and marks (excluding any right to the name "Duke" or
"Weeks"), tenements, hereditaments, appurtenances and easements now or
hereafter belonging or pertaining to any of the foregoing, except those,
if any, hereinafter reserved to Seller.
VENDOR OR VENDORS. Each vendor or broker with whom Seller has
executed a Service Contract or Commission Agreement.
1.2 EXHIBITS. Attached hereto and forming an integral part
of this Agreement are the following exhibits, all of which are
incorporated into this Agreement as fully as if the contents thereof
were set out in full herein at each point of reference thereto:
Exhibit A - Description of Land and Vacant Site
Exhibit B - Escrow Agreement
Exhibit C - Xxxx of Sale
Exhibit D - Rent Roll
Exhibit E - Disclosure Schedule
Exhibit F - Form of Limited Warranty Deed
Exhibit G - Non-Foreign Certificate
Exhibit H - Notice to Tenants
Exhibit I - Assignment and Assumption Agreement
Exhibit J - List of Service Contracts and Commission
Agreements
Exhibit K - Officer's Certificate
Exhibit L - Notice to Vendors
Exhibit M - Form of Tenant Estoppel Certificate
Exhibit N - Reserved
Exhibit O - Intentionally Omitted.
Exhibit P - Form of Survey Certification
SECTION 2. PURCHASE AND SALE.
Subject to and in accordance with the terms and provisions of
this Agreement, Seller agrees to sell and Buyer agrees to purchase the Project.
In connection therewith and subject to and in accordance with the terms and
provisions of this Agreement, Seller shall also (a) convey to Buyer the Personal
Property pursuant to the terms of the Xxxx of Sale, and (b) assign to Buyer, and
Buyer shall assume, the Leases, Guaranties, Service Contracts, Commission
Agreements (as well as the other property described in the Assignment), pursuant
to the terms of the Assignment. Buyer and Seller acknowledge that the sale of
the Property shall occur first, and, thereafter, and if and only if the sale of
the Property closes, then the sale of the Vacant Site shall occur assuming the
conditions of Closing of the Vacant Site, described below, are met. If Buyer
fails to purchase the Property for whatever reason, then Buyer shall have no
rights to purchase the Vacant Site.
SECTION 3. XXXXXXX MONEY.
3.1 XXXXXXX MONEY. Within three (3) business days of execution of
this Agreement by Buyer, Buyer
shall deposit with Xxxxxxx Money Escrow Agent the Xxxxxxx Money which, together
with any interest or other income earned thereon, shall be held, invested and
disbursed pursuant to the respective terms and provisions hereof and of the
Xxxxxxx Money Escrow Agreement.
3.2 DISBURSEMENT. The Xxxxxxx Money shall be disbursed by Xxxxxxx
Money Escrow Agent upon Closing of the Property either: (i) to Seller as a
portion of the Purchase Price for the Property unless otherwise disbursed
pursuant to this Agreement, or (ii) to Buyer in the event Buyer (Or Buyer's
nominee) funds the entire Purchase Price (as determined in accordance with the
terms hereof) at Closing unless otherwise disbursed pursuant to this Agreement.
Whenever the Xxxxxxx Money is by the terms hereof to be disbursed by Xxxxxxx
Money Escrow Agent, Seller and Buyer agree promptly to execute and deliver such
notice or notices as shall be necessary or, in the opinion of Xxxxxxx Money
Escrow Agent, appropriate to authorize Xxxxxxx Money Escrow Agent to make such
disbursement.
SECTION 4. PURCHASE PRICE.
4.1 PURCHASE PRICE. The Purchase Price for the Property, as adjusted
by the prorations provided in SECTION 4.2 hereof and by the Xxxxxxx Money
(subject to the terms of Section 3.2, above), shall be paid by Buyer to Seller
at the Closing in United States dollars, by Federal Reserve System wire transfer
or other immediately available funds acceptable to Seller.
4.2 PRORATIONS. Buyer and Seller will prorate all income and
expenses relating to the Property based upon Buyer's and Seller's respective
periods of ownership for the calendar year in which the Closing occurs with
Buyer treated as the owner of the Property on the Closing Date, including,
without limitation:
4.2.1. RENTS.
(i) CLOSING. Except as provided in subparagraph
(ii) below, Seller shall pay or credit to Buyer at the Closing (A) all
Rent due and payable by Tenants under the Leases for the calendar month
in which the Closing occurs, prorated for the number of days during such
calendar month from, including and after the Closing, and (B) all
prepaid and overpaid Rents of all Tenants under the Leases, and (C) all
rent and reimbursable expenses (on a pro forma basis) which would be
payable under the Giovanni's Jewelry, Papa John's Pizza, and Scrapbook
Corner leases from and after the date of Closing through the respective
dates such Tenants are (or will be) scheduled to commence the payment of
full rent and reimbursable expenses pursuant to the terms of their
respective Leases). Buyer will indemnify and hold harmless Seller, its
successors and assigns, from and against any liability (including,
without limitation, reasonable attorneys' fees and costs) arising from
Buyer's failure to account properly to Tenants for prepaid and overpaid
Rents to the extent credited to Buyer by Seller at Closing.
(ii) POST-CLOSING. After the Closing, Buyer shall
make good faith efforts to collect all unpaid Rents for any period prior
to the Closing, provided that Buyer shall have no obligation to
institute litigation or terminate any Leases in connection with any such
collections. Any Rents due and owing Seller before the Closing by
Tenants under the Leases that are unpaid at the Closing, are herein
called "DELINQUENT RENTS". There shall be no cash credit to Seller at
Closing on account of any Delinquent Rents, but following Closing,
rental and other payments received by Buyer or Seller from Tenants shall
be first applied toward the actual out-of-pocket costs of collection
paid to parties other than the managing agent of the Property, then such
Rents shall be applied first toward the payment of rent and other
charges then currently owed to Buyer and second toward the payment of
Delinquent Rents. Seller shall have and reserves the right to pursue any
remedy against any Tenant owing Delinquent Rents, provided that Seller
shall in no event institute any proceeding to evict or dispossess a
Tenant from the Property, nor (b) seek to terminate any Lease. Buyer
may, by written notice to Seller, restrict Seller from collecting such
Delinquent Rents, but only if Buyer first pays Seller
such Delinquent Rents in exchange for Seller's assignment to Buyer of
all of Seller's rights and causes of action with respect thereto.
4.2.2 REAL ESTATE TAXES. Taxes will be prorated between Buyer
and Seller on a cash basis, (i.e., those taxes that are due and payable
in the year in which the Closing occurs only will be prorated between
Buyer and Seller regardless of which year such taxes accrued). If the
actual amount of taxes due and payable in the year of Closing is not
ascertainable as of the Closing Date, proration of taxes shall be based
upon the greater of (a) 110% of the most recent xxxx or assessment or
(b) the estimated assessments for 2002 and 2003 using the assessor's
formula for the sale contemplated hereby. Notwithstanding the foregoing,
there will be no proration for taxes to the extent the Leases require
Tenants to pay taxes (either directly or by reimbursement to Seller)
rather than paying estimated amounts therefor to Seller as additional
rent. Buyer shall pay all real estate taxes due and payable after
Closing and reconciliations with Tenants shall be responsibility of
Buyer post-Closing. At Closing, all prorations of real estate taxes
shall constitute full settlement between Buyer and Seller.
(i) DELINQUENT TAXES. Seller shall pay to the
applicable tax authorities at or prior to the Closing all Taxes and
assessments with respect to the Property which are delinquent as of the
Closing.
(ii) PREPAID TAXES. If any portion of any other
assessments paid by Seller with respect to the Property at or prior to
the Closing, determined on a cash (rather than accrual) basis, relate to
any time including or after the Closing, Buyer shall pay to Seller at
the Closing the amount of such other assessments paid prorated for the
number of days, from, including and after the Closing.
(iii) TAX REFUNDS. All refunds of Taxes received by
Seller or Buyer after the Closing with respect to the Property ("TAX
REFUND") shall be applied (A) first, to Seller or Buyer, as the case may
be, to the extent of third party expenses incurred by either party in
protesting and obtaining such Tax Refund, (B) second, to Buyer to the
extent that such Tax Refund is required to be paid to (or credited
against other amounts payable by) the Tenants under the Leases, and (C)
third, (x) to Seller if such Tax Refund is for any tax period which ends
before the Closing, (y) to Buyer if such Tax Refund is for any tax
period which commences after the Closing, and (z) with respect to any
Tax Refund for any tax period in which the Closing occurs, to Seller and
Buyer, prorated on a per diem basis. If Seller or Buyer receives any Tax
Refund, then each shall retain or pay such amounts (or portions thereof)
in order that such payments are applied in the manner set forth in this
Subsection.
(iv) Intentionally Omitted.
4.2.3 UTILITIES. Prior to the Closing, Buyer shall notify each
of the utility companies which provide services to the Property of the
scheduled transfer of the Property on the Closing, and shall make
appropriate arrangements with the utility companies to xxxx Seller for
services provided before the Closing, and to Buyer for services provided
from and after the Closing. If such arrangements cannot, or are not,
made as of the Closing, then Buyer shall make the appropriate
arrangements promptly after the Closing, and promptly after such
arrangements are made, Buyer shall pay to Seller an amount equal to the
cost of the services that were billed to Seller for the period from and
after Closing, and Seller shall pay the same to the appropriate utility
company.
4.2.4 SERVICE CONTRACTS. With respect to the Service
Contracts, at the Closing (i) Seller shall pay or grant to Buyer as a
credit against the Purchase Price the amount of accrued and unpaid
charges for services rendered before the Closing prorated on a per diem
basis, and (ii) Buyer shall pay to Seller the amount of prepaid charges
for services rendered from and after the Closing prorated on a per diem
basis.
4.2.5 TENANT SECURITY DEPOSITS. Buyer shall receive a credit
(or Seller shall pay to Buyer) at Closing in an amount equal to the
total amount of cash Security Deposits shown on the Rent Roll.
4.2.6 OWNERS ASSOCIATION ASSESSMENTS. If the Property is
located in a business park which is governed by an owners association,
and the association charges assessments with respect to the Property,
then at the Closing (a) if such charges are payable after the Closing
for a period before the Closing, Seller shall pay to Buyer an amount
equal to the amount of such charges allocated to the period before the
Closing prorated on a per diem basis, and (b) if such charges were paid
before the Closing for a period from and after the Closing, Buyer shall
pay to Seller an amount equal to the amount of such charges reasonably
allocated to the period from, including and after the Closing prorated
on a per diem basis.
4.2.7 The amount of payments by Seller or Buyer under this
SECTION 4.2 may have been based on estimates of applicable amounts.
Except as otherwise expressly provided herein, if any payments by Seller
or Buyer at the Closing under this SECTION 4.2 are based on estimates,
then, when the actual amounts are finally determined, Seller and Buyer
shall recalculate the amounts that would have been paid at the Closing
based on such actual amounts, and Seller or Buyer, as the case may be,
shall make an appropriate payment to the other based on such
recalculation. Notwithstanding the foregoing, the total amount of
operating expenses for the calendar year of the Closing will be
reconciled no later than 180 days after the end of the calendar year in
which the Closing occurs. For purposes of such recalculation, at the
conclusion of the calendar year in which the Closing occurs, Seller's
allocable share of the actual additional rent for reimbursement of
operating expenses, real estate taxes and insurance under the Lease
shall be determined by multiplying the total additional rent due from
Tenant for such calendar year (i.e., being the sum of estimated payments
made on account of such additional rent, plus or minus year-end
reconciliations as provided in the Lease) by a fraction, the numerator
of which is Seller's actual costs expended prior to Closing in providing
the maintenance services, insurance, real estate taxes and other amounts
which are the subject of such additional rent charges for such calendar
year (herein, the "ADDITIONAL RENT EXPENDITURES"), and the denominator
of which is the total Additional Rent Expenditures made by Seller and
Buyer for the entire calendar year in which Closing occurs. If, on the
basis of the Additional Rent Expenditures actually made and the
estimated Additional Rent payments actually received by Seller prior to
Closing, Seller has retained additional rent amounts in excess of its
allocable share, it shall remit to Buyer, within ten (10) business days
after notice thereof from Buyer, the total amount of such excess. If, on
the basis of the Additional Rent Expenditures actually made and the
estimated additional rent payments actually received by Seller prior to
Closing, Seller has retained Additional Rent amounts that are less than
its allocable share, Buyer shall remit to Seller within ten (10)
business days after notice thereof to Buyer, the total amount of such
difference. In the event of any subsequent adjustments in the final
determination of such additional rent owed by Tenant under the Lease for
such calendar year based upon the resolution by Seller, Buyer and Tenant
of any dispute or contest of such amounts brought by Tenant pursuant to
the terms of the Lease, Seller and Buyer shall promptly readjust between
themselves the actual amounts owed for such calendar year, based upon
such adjusted determination of additional rent owed by Tenant.
4.2.8 CLOSING DATE. If the Purchase Price is not delivered to
Seller before 1:00 p.m. E.S.T. on the Closing Date, then the payments
required to be made by Seller or Buyer under this Agreement shall be
determined assuming that the Closing Date occurred on the day after the
actual Closing.
4.2.9 LEASING COSTS.
(a) At or prior to Closing, Seller shall (i) pay and or
"cash out" any leasing commissions due and payable for
the current term of Leases in existence as of the date
of Closing, including without limitation Giovanni's
Jewelry, Papa John's Pizza, and Scrapbook Corner, (ii)
give a credit to Buyer on the Closing Statement
for any free rent concessions for the current term of
any Leases in existence as of the date of Closing,
including without limitation Giovanni's Jewelry, Papa
John's Pizza, and Scrapbook Corner and (iii) pay all
tenant improvement allowances to Tenants (including
Giovanni's Jewelry, Papa John's Pizza, and Scrapbook
Corner) related to the current term of each Lease as
required by the Leases, or if such allowances are not
then due and payable, Seller shall credit said unpaid
amount to Buyer at Closing, and Buyer shall assume said
payment obligation. Seller is not aware of any leasing
commissions applicable to any renewals or extensions of
term for the Leases executed as of the Contract Date.
4.2.10 CLOSING COSTS. Buyer shall pay the cost of any
endorsements to the title insurance policy, excluding for extended
coverage, the cost of any lender's policy of title insurance, one-half
(1/2) of all escrow or closing agent charges, all costs associated with
any encumbrance Buyer places on the Property at Closing, all costs of
Buyer's due diligence, and any other costs not expressly required to be
paid by Seller pursuant to this Agreement. Seller shall pay for state
and county transfer taxes and documentary stamps, costs for recording
the Deed, one-half (1/2) of all escrow or closing agent charges, the
cost of the Survey, and the cost of an owner's policy of title insurance
for the Property in the form most recently adopted by ALTA in the amount
of the Purchase Price (excluding any endorsements thereto other than for
extended coverage). Each party shall pay its own attorneys. Brokerage
commissions shall be paid as set forth in SECTION 15. The obligations of
the parties to pay applicable escrow or closing charges shall survive
the termination of this Agreement.
SECTION 5. TITLE AND SURVEY. Buyer will have until 5:00 p.m. E.S.T. on
the seventh (7th) day after Seller causes the last to be delivered of the Title
Commitment and the Survey to be delivered to Buyer by or on behalf of Seller
(such delivery date being defined as the "Title and Survey Delivery Date") to
examine title to the Project and the Survey, determine whether Buyer will be
able to obtain any endorsements it desires, and give written notice to Seller of
any objections to the title or the Survey which Buyer may have. If Buyer fails
to give any notice to Seller by such date, Buyer shall be deemed to have waived
such right to object to any title exceptions or defects. If Buyer does give
Seller timely notice of objection to any title exceptions or defects and such
objection is not reasonably cured or satisfied or undertaken to be reasonably
cured or satisfied by Seller within five (5) business days of receiving Buyer's
objection, then Buyer may elect, by written notice to Seller within five (5)
business days after Seller so responds to such objections, either to (a)
terminate this Agreement, in which case the Xxxxxxx Money shall be returned to
Buyer by Escrow Agent, and the parties shall have no further rights or
obligations hereunder, except for those which expressly survive any such
termination, or (b) waive its objections hereunder and proceed with the
transaction pursuant to the remaining terms and conditions of this Agreement. If
Buyer fails to so give Seller notice of its election, it shall be deemed to have
elected the option contained in subpart (b) above. If Seller does so reasonably
cure or satisfy, or undertake to reasonably cure or satisfy, such objection to
the satisfaction of Buyer, then this Agreement shall continue in full force and
effect. Buyer shall have the right at any time to waive any objections that it
may have made and, thereby, to preserve this Agreement in full force and effect.
Seller agrees to pay and release, bond, or otherwise remove from title ("Remove
from Title") the liens of any mortgages filed against the Property, along with
any other monetary liens which do not exceed, in the aggregate, twenty thousand
and No/100 dollars ($20,000.00); the obligation of Seller to Remove from Title
may be satisfied by providing affirmative title insurance coverage under the
Title Commitment which is reasonably satisfactory to Buyer.
SECTION 6. BUYER'S INSPECTION.
6.1 DOCUMENT INSPECTION. Buyer and Seller acknowledge that Buyer
shall inspect the Project and shall examine, review and inspect the Seller
Deliveries.
6.2 PHYSICAL INSPECTION. Subject to any restrictions under any
restrictions of record and applicable
laws, Buyer and its agents shall have the right, from time to time prior to the
Closing during normal business hours, to enter upon the Project to examine the
same and the condition thereof, and to conduct such surveys and to make such
engineering and other inspections, tests and studies as Buyer shall determine to
be reasonably necessary, all at Buyer's sole cost and expense (except as
otherwise described herein). Seller agrees to deliver to Buyer a copy of its
currently existing, Phase I environmental report to Buyer. Notwithstanding the
foregoing, Buyer shall not conduct or allow any physically intrusive testing of,
on or under the Project. Buyer agrees to give Seller reasonable advance notice
of such examinations or surveys and to conduct such examinations or surveys
during normal business hours to the extent practicable. Buyer agrees to conduct
all examinations and surveys of the Project in a manner that will not interfere
with the operations of Seller or Tenants thereon and will not harm or damage the
Project or cause any claim adverse to Seller, and agrees to restore the Project
to its condition prior to any such examinations or surveys immediately after
conducting the same. Buyer hereby indemnifies and holds Seller harmless from and
against any claims for injury or death to persons, damage to property or other
losses, damages or claims, including, without limitation, claims of any
tenant(s) then in possession, and including, without limitation,, in each
instance, attorneys' fees and litigation costs, arising out of any action of any
person or firm entering the Project on Buyer's behalf as aforesaid or any breach
by Buyer of its obligations under this Section, which indemnity shall survive
the Closing and any termination of this Agreement.
6.3 FORMAL INSPECTION PERIOD. Buyer's obligation to close under this
Agreement is subject to and conditioned upon Buyer's investigation and study of
and satisfaction with the Project as determined in its sole discretion. Buyer
shall have until 5:00 p.m. E.S.T. on the Inspection Date in which to make such
investigations and studies with respect to the Project as Buyer deems
appropriate and to terminate this Agreement if Buyer is not, for any reason, or
for no reason, satisfied with the Project in which case the Xxxxxxx Money shall
immediately be returned to Buyer and neither party shall have any further
obligations hereunder except for those obligations of Buyer set forth in
SECTIONS 6.2 and 6.4. If Buyer fails to give written notice to Seller waiving
such right to terminate, to be received by Seller on or before 5:00 p.m. E.S.T.
on the Inspection Date, then Buyer's termination rights under this SECTION 6
shall be deemed to have been waived by Buyer, and the parties shall proceed with
the transaction pursuant to the remaining terms and conditions of this
Agreement.
6.4 CONFIDENTIALITY. Buyer and its representatives shall hold in
confidence all data and information relating to Seller or its business, whether
obtained before or after the execution and delivery of this Agreement pursuant
to the Confidentiality Agreement which is incorporated herein and which Buyer
hereby reaffirms. In the event of a breach or threatened breach by Buyer or its
representatives of this SECTION 6.4, Seller shall be entitled to all remedies
set forth in the Confidentiality Agreement. Nothing in this Agreement shall be
construed as prohibiting Seller from pursuing any other available remedy at law
or in equity for such breach or threatened breach of the Confidentiality
Agreement. The provisions of this SECTION 6.4 shall survive the Closing and any
termination of this Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
7.1 REPRESENTATIONS. As of the Contract Date, Seller hereby
represents and warrants to Buyer that the following statements are true except
as may otherwise be disclosed on EXHIBIT E:
7.1.1 RENT ROLL. The Rent Roll attached hereto as EXHIBIT D is
accurate in all material respects and Seller shall provide an updated
version of the Rent Roll to Buyer as an exhibit to the Assignment.
Seller has not entered into any Lease concerning the Project except with
the Tenants disclosed on the Rent Roll.
7.1.2 AGREEMENTS. Seller has not entered into any management
agreement, or agreement for provision of services or supplies concerning
the Project except for the Service Contracts. Seller has not entered
into any leasing commission agreements that have outstanding obligations
for payment of commissions by the landlord except for the Commission
Agreements.
7.1.3 NO LITIGATION. Seller has no knowledge of receipt of
written notice of any actual or pending litigation or proceeding by any
organization, person, individual or governmental agency against Seller
with respect to the Project or against the Project.
7.1.3 AUTHORITY. Seller is a duly organized and validly formed
limited partnership under the laws of the State of Indiana, is qualified
to do business in state in which the Project is located and is not
subject to any involuntary proceeding for dissolution or liquidation
thereof.
7.1.4 NON-FOREIGN STATUS. Seller is not a "foreign person" as
that term is defined in the Internal Revenue Code of 1986, as amended
and the Regulations promulgated pursuant thereto.
7.1.5 AUTHORITY OF SIGNATORIES; NO BREACH OF OTHER AGREEMENTS,
ETC. The execution, delivery of and performance under this Agreement are
pursuant to authority validly and duly conferred upon Seller and the
signatories hereto. To Seller's knowledge, the consummation of the
transaction herein contemplated and the compliance by Seller with the
terms of this Agreement do not and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any agreement, arrangements, understanding, accord, document or
instrument by which Seller is bound.
7.1.6 IMPROVEMENTS. To Seller's knowledge, the roof, HVAC, and
structure of the Improvements at the Property to the extent constructed
as of the Contract Date are in a good state of repair.
7.1.7 DEVELOPMENT AGREEMENTS. Other than that certain
Development Agreement dated June 14, 2001 between Seller and Meijer
Stores Limited Partnership, there are no unrecorded development
agreements between Seller and any governmental agencies with regard to
the development, use or operation of the Project.
7.2 MISCELLANEOUS. As used herein, the phrase "Seller's knowledge"
or any derivation thereof shall mean the actual knowledge of Xxxx Xxxxxxx, Vice
President of Dispositions. It shall be a condition precedent to Buyer obligation
to close that the representations and warranties contained in this SECTION 7 are
true and correct in all material respects at Closing. In the event that Seller
or Buyer learns that any of said representations or warranties becomes
inaccurate between the Contract Date and the Closing, Seller or Buyer, as
applicable, shall immediately notify the other party in writing of such change.
Any intentional misrepresentation made on the part of Seller shall be treated as
a default pursuant to the terms hereof and the terms of Section 11 shall apply.
The Closing shall be automatically extended up to thirty (30) days in order to
allow Seller to cure such non-intentional misrepresentation. In the event Seller
so cures such non-intentional misrepresentation, this Agreement shall remain in
full force and effect. If Seller does not cure such non-intentional
misrepresentation, (after undertaking good faith efforts to do so), Buyer may
either (a) terminate this Agreement by written notice to Seller, in which case
the Xxxxxxx Money, together with interest earned thereon, shall immediately be
returned to Buyer and the parties shall have no further rights or obligations
hereunder, except for those which expressly survive such termination, or (b)
waive such right to terminate by proceeding with the transaction pursuant to the
remaining terms and conditions of this Agreement. In the event Buyer elects
option (b) in the preceding sentence the representations and warranties shall be
deemed to be automatically amended to reflect said change. In the event Buyer
first learns after Closing that any representations or warranties made by Seller
(as may be amended as provided above) were non-intentionally and materially
inaccurate as of the Closing Date, then Seller shall reimburse Buyer for all
out-of-pocket expenses incurred by Buyer as a result of such inaccuracy provided
that (i) Buyer notifies Seller in writing within twelve (12) months from the
Closing Date of such expenses and inaccuracy, and (ii) Seller shall in no event
be responsible for any consequential or punitive damages resulting from such
inaccuracy. Notwithstanding anything to the contrary contained in this
Agreement, Buyer shall have no right to recover from, or proceed against, Seller
in any manner whether based upon breach of contract, tort or otherwise upon the
expiration of such twelve month period except to the
extent Buyer has so notified Seller in accordance with the terms of this
Agreement within such twelve month period.
7.3 REAFFIRMATION. Subject to the provisions of SECTION 7.2, at
Closing Seller shall be deemed to have reaffirmed that the representations and
warranties of Seller in this SECTION 7 and the updated Rent Roll attached to the
Assignment is true and correct in all material respects as of the Closing Date.
SECTION 8. OPERATIONS PENDING CLOSING. Seller, at its expense, shall
use reasonable efforts to maintain the Project until the Closing or until the
termination of this Agreement, whichever is earlier, substantially in its
present condition, damage by fire or other casualty and condemnation excepted.
Seller shall deliver to Buyer a copy of any written notice of default delivered
by Seller to any Tenant from and after the Inspection Date. After the Inspection
Date, without Buyer's consent not unreasonably withheld (provided, however,
Buyer's consent shall be deemed granted in the event Buyer does not object in
writing thereto within five (5) days after Seller requests such consent from
Buyer), Seller will not enter into any (a) contract for service to the Project
unless it is terminable without penalty on no more than thirty (30) days written
notice (except that Seller may enter into any such contract in response to any
condition or event which would endanger the safety or integrity of the
Improvements, provided that Buyer shall have no obligation to assume any such
contract unless Buyer approves of such contract in writing), or (b) as to the
Property only, any new lease or any modification, amendment, restatement,
termination, or renewal of any Lease except for letters of understanding,
certificates, punch lists and other documents contemplated by the applicable
Lease. Seller shall promptly deliver a copy of any item in (a) or (b) of the
preceding sentence entered into by Seller prior to the Inspection Date.
SECTION 9. CONDITIONS TO CLOSING.
9.1 BUYER'S CONDITIONS PRECEDENT. Buyer's obligation to proceed to
Closing of the Property and the Vacant Site respectively, under this Agreement
is subject to the following conditions precedent as it relates to each Closing:
(a) Seller shall have performed and satisfied each and all of
Seller's obligations under this Agreement; and each Lease; and
(b) Each and all of Seller's representations and warranties set
forth in this Agreement shall be true and correct at the
Contract Date and at the Closing Date.
(c) For the Property, Seller shall have delivered to Buyer Tenant
Estoppel Certificates from (i) Tenants leasing 8,000 rentable
square feet or more ("Major Tenants"), and (ii) Tenants
representing at least seventy-five percent (75%) of the
remaining leased rentable square feet of the Property
(collectively, the "Minimum Tenant Estoppels"). If Seller is
unable to obtain Tenant Estoppel Certificates from any Tenant,
Seller shall execute and deliver Seller estoppel certificates
containing the information set forth in the undelivered Tenant
Estoppel Certificates (i.e. to achieve delivery of Tenant
Estoppel Certificates from one hundred percent (100%) of the
Tenants). Seller's representations and warranties in any Seller
estoppel certificates will survive the Closing, subject to the
limitations contained in Section 7.2 hereof. In the event that
Buyer receives an estoppel certificate from a Tenant complying
with the requirements of this Section 9.1(c), and for which
Seller previously delivered its estoppel certificate, Seller
shall be automatically released from any liability or obligation
under its estoppel certificate. Any qualification of any
assertion in the Tenant Estoppel Certificate regarding the
status of the performance of any of landlord's obligations under
the lease that such assertion is made "to Tenant's knowledge" or
similar qualification made by a Tenant shall be acceptable.
(d) No Major Tenant shall be in default of their rent payment
obligations under their Lease, and no
Tenant shall have filed for bankruptcy protection.
(e) Seller shall have obtained an estoppel certificate from the
responsible party under the reciprocal easement
agreement/protective covenants for the development of which the
Project is a part, based on the form attached hereto as
EXHIBIT O.
(f) Seller shall have substantially completed construction of the
Improvements as certified by Seller's architect on an AIA
Certificate of Substantial Completion (Form G704). Seller shall
have completed all tenant improvements required to be
constructed by Seller, as landlord, under the Leases, except for
tenant improvements related to Leases with Giovanni's Jewelry,
Papa John's and Scrapbook Corner, which are addressed in Section
19 below.
(g) Seller shall have obtained final unconditional occupancy permits
for the shell of the Buildings to the extent issued by the
applicable governmental authority; provided, however, this
condition shall not apply to any permits related to any tenant
improvements being completed by Tenants and the tenant
improvements being completed by Seller for Giovanni's Jewelry,
Papa John's and Scrapbook Corner, and further, this condition
shall be waived as to any Tenant space for which a final
unconditional occupancy permit cannot be issued due to
uncompleted improvements being made by the Tenant.
(h) Except for Leases at the Property to Giovanni's Jewelry, Papa
John's and Scrapbook Corner, (i) 100% of the leasable Tenant
space shall be fully occupied, and (ii) all Tenants shall be
occupying their space, open for business and paying full rent,
including CAM, taxes and insurance, as shown on the Rent Roll
and (iii) all free rent periods under any Lease shall have
tolled or been credited to Buyer at Closing, and (iv) all
leasing commissions applicable to any Lease signed as of the
date of Closing shall have been paid or credited to Buyer at
Closing, and (v) all Tenant improvement allowances shall have
been paid to the applicable tenant or credited to Buyer at
Closing (collectively, the "Tenant Conditions").
(i) Seller shall have delivered to Buyer a certificate of insurance
from the Tenants and guarantors in the form and coverage as provided
under the Leases.
In the event any of the foregoing conditions are not satisfied
prior to or at the Closing, subject to SECTION 7.2 hereof, Buyer may
terminate this Agreement by written notice to Seller and thereafter
shall have no obligation to proceed with the Closing, the Xxxxxxx Money
shall immediately be returned and paid to Buyer, and neither party shall
have any further obligation hereunder except those which expressly
survive the termination of this Agreement. Notwithstanding the
foregoing, (i) nothing contained herein shall waive or diminish any
right or remedy Buyer may have for Seller's default or breach of this
Agreement and (ii) once the Property closes, no conditions pertaining to
the Property shall be conditions pertaining to the Closing of the Vacant
Site.
9.2 SELLER'S CONDITIONS PRECEDENT. Seller's obligation to proceed to
Closing under this Agreement is subject to the following conditions precedent:
(a) Intentionally Omitted.
(b) Buyer shall have performed and satisfied each and all of Buyer's
obligations under this Agreement as set forth in Sections 2, 3,
4 and 10. In the event this condition is not satisfied on or
prior to the Closing Date, Seller shall have no obligation to
proceed to Closing and, if Seller delivers written notice to
Buyer that the foregoing condition has not been satisfied, this
Agreement shall cease and terminate, the Xxxxxxx Money shall be
returned and paid to Buyer, and neither party shall have any
further obligation hereunder except those which expressly
survive the termination of this Agreement.
Notwithstanding the foregoing, nothing contained herein shall
waive or diminish any right or remedy Seller may have for Buyer's
default or breach of this Agreement.
SECTION 10. CLOSING.
10.1 TIME AND PLACE. Provided that all of the conditions set forth in
this Agreement are theretofore fully satisfied or performed, the Closing shall
be held in escrow through Escrow Agent, on the Closing Date or such other date
that is mutually agreeable to Buyer and Seller unless the Closing Date is
postponed pursuant to the express terms of this Agreement.
10.2 SELLER DELIVERIES. Seller shall obtain and deliver to Buyer at
the Closings for the Property and the Vacant Site respectively, the following
documents (all of which shall be duly executed, and witnessed and/or notarized
as necessary):
10.2.1 The Deed, subject to the Permitted Title Exceptions.
10.2.2 A Non-Foreign Certificate, substantially in the form
attached as EXHIBIT G hereto.
10.2.3 The Officer's Certificate substantially in the form
attached hereto as EXHIBIT K.
10.2.4 The Assignment.
10.2.5 The Xxxx of Sale.
10.2.6 A Closing Statement in form and substance mutually
satisfactory to Buyer and Seller (the "CLOSING STATEMENT").
10.2.7 An affidavit of title or other affidavit customarily
required of sellers by the Title Insurer to remove the standard
exceptions from an owner's title insurance policy which are capable of
being removed by such an affidavit.
10.2.8 Such transfer tax, certificate of value or other similar
documents customarily required of Sellers in the county in which the
Project is located.
10.2.9 Such further instructions, documents and information,
including, but not limited to a Form 1099-S, as Buyer or Title Insurer
may reasonably request as necessary to consummate the purchase and sale
contemplated by this Agreement.
11.2.10 Notice to send to all Tenants substantially in the form
attached hereto as EXHIBIT H.
10.2.11 Notice to send to all Vendors substantially in the form
attached hereto as EXHIBIT L.
10.2.12 The Tenant Estoppel Certificates received from Tenants
and Guarantors.
10.2.13 Intentionally Omitted.
10.2.14 To the extent Seller is a declarant under any reciprocal
easement agreement/protective covenants for the development of which
the Project is a part, Seller shall execute in favor of Buyer an
Assignment and Assumption of Declarant's Rights related thereto it
being the intent of the parties that Buyer shall succeed to Seller's
interests thereunder.
10.2.15 An assignment (acknowledged by the applicable material
and/or service providers) to Buyer (or its nominee) of all Project
warranties and guaranties, all at the sole cost and expense of Seller.
10.3 BUYER DELIVERIES. Buyer shall deliver to Seller at closing the
following:
10.3.1 The Purchase Price in immediately available funds,
subject to the prorations provided for in this Agreement
10.3.2 Counterpart originals duly executed (and witnessed
and/or notarized as necessary) by Buyer of the Assignment, the
Assignment and Assumption of Declarant's Rights, and the Closing
Statement.
10.3.3. Such other documents or instruments that are reasonably
necessary to consummate the Closing.
SECTION 11. DEFAULT AND REMEDIES REGARDING THE SALE OF THE PROPERTY.
11.1 BUYER'S DEFAULT. In the event of a default by Buyer under the
terms of this Agreement, Seller may elect to terminate this Agreement. If Seller
terminates this Agreement as provided in the previous sentence, the Xxxxxxx
Money Escrow Agent shall disburse the Xxxxxxx Money to Seller, and Seller shall
be entitled to retain the Xxxxxxx Money for such default of Buyer, whereupon
this Agreement shall automatically terminate and the parties shall have no
further rights or obligations hereunder, except for those which expressly
survive any such termination. Notwithstanding the foregoing, nothing contained
herein shall waive or diminish any right or remedy Seller may have at law or in
equity for Buyer's default or breach of SECTION 6.2 or SECTION 6.4 of this
Agreement. It is hereby agreed that Seller's damages in the event of a default
by Buyer hereunder are uncertain and difficult to ascertain, and that the
Xxxxxxx Money constitutes a reasonable liquidation of such damages and is
intended not as a penalty, but as liquidated damages. This provision shall
expressly survive the termination of this Agreement.
11.2 SELLER'S DEFAULT. Subject to SECTION 7.2, in the event of a
default by Seller under the terms of this Agreement which is not cured by Seller
as provided hereunder, Buyer's sole and exclusive remedies hereunder shall be to
either terminate this Agreement whereupon Buyer will receive a refund of the
Xxxxxxx Money from Escrow Agent, or to seek specific performance of Seller's
obligations under this Agreement.
SECTION 12. CONDEMNATION OR DESTRUCTION.
12.1 CONDEMNATION. If, prior to the Closing, all or any material part
(materiality shall include, by way of illustration and not limitation: a taking
which (i) affects any point of ingress or egress to or from the Project, or (ii)
affects any Project parking, or (iii) allows any Tenant to terminate its Lease)
of the Project is subject to a bona fide threat of condemnation by a body having
the power of eminent domain, or is taken by eminent domain or condemnation, or
sale in lieu thereof, then Buyer, by written notice to Seller, to be received
within thirty (30) calendar days of Buyer's receiving Seller's written notice of
such threat, condemnation or taking, or by the Closing Date, whichever is
earlier, may elect to terminate this Agreement.
12.2 DAMAGE OR DESTRUCTION. If, prior to the Closing, all or any
material part (materiality shall include, by way of illustration and not
limitation: a taking which (i) affects any point of ingress or egress to or from
the Project, or (ii) affects any Project parking, or (iii) allows any Tenant to
terminate its Lease) of the Project is damaged or destroyed by any cause, Seller
agrees to give Buyer written notice of such occurrence and the nature and extent
of such damage and destruction, and Buyer, by written notice to Seller, to be
received within thirty (30) calendar days of Buyer's receipt of Seller's written
notice of such damage or destruction, or by
the Closing Date, whichever is earlier, may elect to terminate this Agreement.
12.3 TERMINATION. If this Agreement is terminated as a result of the
provisions of either SECTION 12.1 or SECTION 12.2 hereof, Buyer shall be
entitled to receive a refund of the Xxxxxxx Money Escrow Agent, whereupon the
parties shall have no further rights or obligations hereunder, except for those
which expressly survive any such termination.
12.4 AWARDS AND PROCEEDS. If Buyer does not elect to terminate this
Agreement following any notice of a threat of taking or taking by condemnation
or notice of damage or destruction to the Project, as provided above, this
Agreement shall remain in full force and effect and the conveyance of the
Property contemplated herein, less any interest taken by eminent domain or
condemnation, or sale in lieu thereof, shall be effected with no further
adjustments. At the Closing, Seller shall assign, transfer and set over to Buyer
all of Seller's right, title and interest in and to any awards, payments or
insurance proceeds available to Seller for the actual value of the property lost
or destroyed that have been or may thereafter be made for any such taking, sale
in lieu thereof or damage or destruction, to the extent such awards, payments or
proceeds shall not have theretofore been used for restoration of the Project,
together with a credit to Buyer in the amount of Seller's deductible under its
applicable insurance policy
SECTION 13. ASSIGNMENT BY BUYER. Buyer may not assign its rights under
this Agreement. Notwithstanding anything to the contrary contained herein, upon
five days prior written notice to Seller, Buyer may assign all of, but not a
portion of, its rights under this Agreement to an entity which is controlled by
or controls Buyer; provided that Buyer and such assignee shall execute an
assignment and assumption agreement in which assignee shall assume all
obligations of Buyer under this Agreement and further provided that no such
assignment shall relieve Buyer of its obligations hereunder. Such assignee shall
have no right to further assign this Agreement.
SECTION 14. BUYER'S REPRESENTATION AND WARRANTY. Buyer does hereby
represent and warrant to Seller as of the Contract Date and the Closing that it
is a validly formed corporation under the laws of the State of =ILLINOIS; that
it is in good standing in the state of its organization; that it is not subject
to any involuntary proceeding for the dissolution or liquidation thereof; that
it has all requisite authorizations to enter into this Agreement; and that the
parties executing this Agreement on behalf of Buyer are duly authorized to so
do.
SECTION 15. BROKERS AND BROKERS' COMMISSIONS. Buyer and Seller each
warrant and represent to the other that, other than CB Xxxxxxx Xxxxx ("BROKER"),
neither party has employed a real estate broker or agent in connection with the
transaction contemplated hereby. In the event the Closing is consummated, Seller
shall pay a commission to Broker pursuant to a separate agreement. Should the
Closing not occur for any reason whatsoever, Seller shall not be obligated to
pay a real estate commission to Broker. Each party agrees to indemnify and hold
the other harmless from any loss or cost suffered or incurred by it as a result
of the other's representation herein being untrue. This SECTION 15 shall
expressly survive the Closing hereunder.
SECTION 16. NOTICES.
Wherever any notice or other communication is required or permitted
hereunder, such notice or other communication shall be in writing and shall be
delivered by hand, by nationally-recognized overnight express delivery service,
by U.S. registered or certified mail, return receipt requested, postage prepaid,
or by facsimile with confirmation to the addresses set out below or at such
other addresses as are specified by written notice delivered in accordance
herewith:
SELLER: Duke Realty Limited Partnership
Attn: Xxxx Xxxxxxx
000 X 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with copy to: Duke Realty Limited Partnership
Attn: Xxxxxx Xxx
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
with copy to: Xxxxxx & Bird LLP
Attn: Xxxxx X. Xxxxxx, Xx.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
BUYER: Inland Real Estate Acquisitions, Inc.
Attn: G. Xxxxxx Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
with copy to: The Inland Real Estate Group, Inc.
Attn: Xxxxxx Xxxx, General Counsel
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000 and (000) 000-0000
Such notices shall be deemed received (a) on the date of delivery, if delivered
by hand or overnight express delivery service; (b) on the date indicated on the
return receipt if mailed; or (c) on the date of facsimile, if sent by facsimile
and confirmed. Notices from the attorney representing a party shall be deemed to
be a notice from said party.
SECTION 17. DISCLAIMER OF CONDITION.
17.1 DISCLAIMER. Subject to the express representations of Seller in
this Agreement, it is understood and agreed that Seller is not making and has
not at any time made any warranties or representations of any kind or character,
expressed or implied, with respect to the Project, including, but not limited
to, any warranties or representations as to habitability, merchantability,
fitness for a particular purpose, title (other than Seller's limited warranty of
title to be set forth in the Deed), zoning, tax consequences, latent or patent
physical or environmental condition, utilities, operating history or
projections, valuation, governmental approvals, the compliance of the Project
with governmental laws, the truth, accuracy or completeness of the Project
documents or any other information provided by or on behalf of Seller to Buyer,
or any other matter or thing regarding the Project. Subject to the express
representations of Seller in, this Agreement, Buyer acknowledges and agrees that
upon Closing Seller shall sell and convey to Buyer and Buyer shall accept the
Project "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent otherwise
expressly provided in this Agreement. , Subject to the express representations
of Seller in this Agreement, Buyer has not relied and will not rely on, and
Seller is not liable for or bound by, any expressed or implied warranties,
guaranties, statements, representations or information pertaining to the Project
or relating thereto (including specifically, without limitation, Project
information packages distributed with respect to the Project) made or furnished
by Seller, the manager of the Project, or any real estate broker or agent
representing or purporting to represent Seller, to whomever made or given,
directly or indirectly, orally or in writing. Buyer represents to Seller that
Buyer has conducted, or will conduct prior to Closing, such investigations of
the Project, including but not limited to, the physical and environmental
conditions thereof, as Buyer deems necessary to satisfy itself as to the
condition of the Project and the existence or nonexistence or curative action to
be taken with respect to any hazardous or toxic substances on or discharged from
the Project, and will rely solely upon same and not upon any information
provided by or on behalf of Seller or its agents or employees with respect
thereto, other than such representations, warranties and covenants of Seller as
are expressly set forth in this Agreement. Subject to the express
representations of Seller in, this Agreement, upon Closing, Buyer shall assume
the risk that adverse matters, including but not limited to, construction
defects and adverse physical and environmental conditions, may not have been
revealed by Buyer's investigations, and Buyer, upon Closing, shall be deemed to
have waived, relinquished and released Seller (and Seller's officers, directors,
shareholders, employees and agents) from and against any and all claims,
demands, causes of action (including, without limitation, causes of action in
tort), losses, damages, liabilities, costs and expenses (including, without
limitation, attorneys' fees and court costs) of any and every kind or character,
known or unknown, which Buyer might have asserted or alleged against Seller (and
Seller's officers, directors, shareholders, employees and agents) at any time by
reason of or arising out of any latent or patent construction defects, physical
conditions (including, without limitation, environmental conditions), violations
of any applicable laws (including, without limitation, any environmental laws)
or any and all other acts, omissions, events, circumstances or matters regarding
the Project.
17.2 EFFECT AND SURVIVAL OF DISCLAIMER. Seller and Buyer acknowledge
that the compensation to be paid to Seller for the Project reflects that the
Project is being sold subject to the provisions of this SECTION 17, and Seller
and Buyer agree that the provisions of this SECTION 17 shall survive Closing
indefinitely.
SECTION 18. MISCELLANEOUS.
18.1 GOVERNING LAW; HEADINGS; RULES OF CONSTRUCTION. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State in which the Land is located, without reference to the conflicts of laws
or choice of law provisions thereof. The titles of sections and subsections
herein have been inserted as a matter of convenience of reference only and shall
not control or affect the meaning or construction of any of the terms or
provisions herein. All references herein to the singular shall include the
plural, and vice versa. The parties agree that this Agreement is the result of
negotiation by the parties, each of whom was represented by counsel, and thus,
this Agreement shall not be construed against the maker thereof.
18.2 NO WAIVER. Neither the failure of either party to exercise any
power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, nor any custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
18.3 ENTIRE AGREEMENT. Except for the Confidentiality Agreement; this
Agreement contains the entire agreement of the parties hereto with respect to
the Project and any other prior understandings or agreements are merged herein
and no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein or incorporated herein by reference
shall be of any force or effect.
18.4 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns
(subject to SECTION 13 above).
18.5 AMENDMENTS. No amendment to this Agreement shall be binding on
any of the parties hereto unless such amendment is in writing and is executed by
the party against whom enforcement of such amendment is sought.
18.6 DATE FOR PERFORMANCE. If the time period by which any right,
option or election provided under this Agreement must be exercised, or by which
any act required hereunder must be performed, or by which the Closing must be
held, expires on a Saturday, Sunday or legal or bank holiday, then such time
period shall be automatically extended through the close of business on the next
regularly scheduled business day.
18.7 RECORDING. Seller and Buyer agree that they will not record this
Agreement and that they will not record a short form of this Agreement.
18.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute but one and the same instrument.
18.9 TIME OF THE ESSENCE. Time shall be of the essence of this
Agreement and each and every term and condition hereof.
18.10 SEVERABILITY. This Agreement is intended to be performed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any term or provision of this Agreement or
the application thereof to any person or circumstance shall for any reason and
to any extent be held to be invalid or unenforceable, then such term or
provision shall be ignored, and to the maximum extent possible, this Agreement
shall continue in full force and effect, but without giving effect to such term
or provision.
18.11 ATTORNEYS' FEES. In the event that either party shall bring an
action or legal proceeding for an alleged breach of any provision of this
Agreement or any representation, warranty, covenant or agreement herein set
forth, or to enforce, protect, determine or establish any term, covenant or
provision of this Agreement or the rights hereunder of either party, the
prevailing party shall be entitled to recover from the non-prevailing party, as
a part of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs, expert witness fees and court
costs as may be fixed by the court or jury.
18.12 LIKE-KIND EXCHANGE. Each of the parties hereto agrees to
cooperate with the other in effecting an I.R.C. Section 1031 exchange, including
executing and delivering any and all documents required by the exchange trustee
or intermediary; provided, however, that the cooperating party shall have no
obligation to execute any document, enter any transaction or arrangement or take
or omit any other action, if such party determines in its sole discretion that
the same would result in any liability, cost, expense, increased risk, delay or
other detriment to the cooperating party.
18.13 PUBLICITY. Between the Contract Date and the Closing, Seller and
Buyer shall discuss and coordinate with respect to any public filing or
announcement concerning the purchase and sale as contemplated hereunder.
18.14 WAIVER OF TRIAL BY JURY. Seller and Buyer hereby irrevocably and
unconditionally waive any and all right to trial by jury in any action, suit or
counterclaim arising in connection with, out of or otherwise relating to, this
Agreement. The provisions of this SECTION 18.14 shall survive the Closing or
termination hereof.
SECTION 19. COMPLETION OF TENANT IMPROVEMENTS - GIOVANNI'S JEWELRY, PAPA
JOHN'S AND SCRAPBOOK CORNER. Buyer acknowledges that the tenant improvements for
Giovanni's Jewelry, Papa John's and Scrapbook Corner shall not be completed by
Seller at Closing. Seller shall pay for and complete said tenant improvements on
or before March 1, 2004, subject to delay caused by (a) said Tenants, (b) Buyer
or (c) force majeure. This provision shall expressly survive Closing.
SECTION 20. EASEMENTS. It shall be a condition of Closing of the
Property that on or prior to the Inspection Date, that Buyer and Seller shall
agree on any easements across the Property and across the Vacant Site that must
be put into place at the Closing of the Property in order to allow for the
operation of the
Property and the development and operation of the Vacant Site, including, but
not limited to, easements for ingress/egress, storm sewer, construction staging,
traffic, sanitary sewer, electrical, water, cable, phone, parking, signage and
party wall (to allow Seller to construct the southern wall of the building to be
located on the Vacant Site in a location contiguous to the northern wall of the
Building on the Property). The parties shall use their good faith efforts to
agree upon the nature and location of said easements, and the terms and
conditions thereof.
SECTION 21. PURCHASE AND SALE OF VACANT SITE. This Section 21 shall
govern the terms and conditions of the purchase and sale of the Vacant Site. The
closing of the Vacant Site shall be on the same terms and conditions as the
closing of the Property, except to the extent as set forth below to the
contrary.
21.1 DEFINED TERMS. Any capitalized term used in this Section 21
which is not specifically defined shall have the meaning as defined elsewhere in
this Agreement, and as applicable, any such capitalized term used in this
Section 21 shall be interpreted in the context of the development of
improvements on and sale of the Vacant Site. The terms below shall have the
following meanings:
EARNOUT TERM. The forty eight (48) month period from and after
the Closing Date on the Property.
STABILIZED BASE RENT. The annual base rent payable under any
Lease of the Vacant Site after satisfaction of the Tenant Conditions has
occurred (collectively, "Rent Concessions").
SUBSTANTIAL COMPLETION. Substantial Completion of the Vacant
Site means (i) completion of construction of all base building Improvements
substantially in accordance with the plans and specifications therefor, and in
compliance in all material respects with all applicable laws, (ii) Seller's
delivery to Buyer of final unconditional occupancy permits for the Buildings to
the extent issued by the applicable governmental authority; provided, however,
this condition shall not apply to any permits related to any tenant improvements
being completed by Tenants, and further, this condition shall be waived as to
any Tenant space for which a final unconditional occupancy permit cannot be
issued due to uncompleted improvements being made by the Tenant, and (iii)
removal of all of Seller's construction equipment, materials and debris from the
Vacant Site, and (iv) Seller having delivered to Buyer for its review and
approval (in accordance with the applicable terms of Section 5 of this
Agreement) an updated title commitment and Survey of the improved Vacant Site.
Substantial Completion shall be certified by Seller's architect on an AIA
Certificate of Substantial Completion (Form G704). ]
"TRIPLE-NET" RENTAL INCOME. The "Triple Net" Rental Income shall
be calculated by first (a) adding the Stabilized Base Rent (as defined above)
for each Lease of the Vacant Site for the first twelve (12) month period of each
Lease that Stabilized Rent is required to be paid and (b) subtracting therefrom
the amount, if any, by which the pass-through amount for CAM, taxes and
insurance (but excluding management fees) to be paid by a Tenant is less than
100% of such Tenant's proportionate share.
21.2 LEASING AND CONSTRUCTION. The parties acknowledge that no
Building has been constructed on the Vacant Site as of the Contract Date. During
the Earnout Term, Seller shall continue to pursue leases with tenant prospects
for the Vacant Site.
21.3 PURCHASE PRICE. The calculation of the Purchase Price for the
Vacant Site shall be as follows:
(a) If the Closing occurs by September 30, 2004, the
Purchase Price shall be the "Triple Net" Rental Income DIVIDED by
8.2679%.
(b) If the Closing occurs after September 30, 2004, the
Purchase Price shall be the "Triple Net" Rental Income divided by an
amount (the "Base Rent Divider") equal to the sum of: (i)
8.2679% PLUS (ii) the 10 year Treasury rate, on a percentage basis (as
quoted in the WALL STREET JOURNAL with a maturity date as near to the
10th year after the Closing Date as possible) minus 4.39% (the 10 year
Treasury rate as of August 15, 2013). For example, (x) if the 10 year
Treasury rate as of Closing is 4.49%, then the rate used to calculate
the Purchase Price will be 8.3679% (8.2679% + (4.49% - 4.39%) = 8.3679%)
or (y) if the 10 year Treasury rate as of Closing is 4.25%, then the
rate used to calculate the Purchase Price will be 8.1279% (8.2679% +
(4.25% - 4.39%) = 8.1279%). Notwithstanding anything to the contrary
contained herein, (i) if the Base Rent Divider is greater than 8.7679%,
then Seller may elect to terminate this Agreement by written notice to
Buyer on or before the scheduled Closing Date and (ii) if the Base Rent
Divider is less than 7.7679%, then Buyer may elect to terminate this
Agreement by written notice to Seller on or before the scheduled Closing
Date.
The Purchase Price for the Vacant Site, as adjusted by the prorations provided
in SECTION 4.2 above, shall be paid by Buyer to Seller at the Closing in United
States dollars, by Federal Reserve System wire transfer or other immediately
available funds acceptable to Seller.
21.4 CLOSING DATE. The Closing of the Vacant Site shall occur ten
(10) days after the later of the date that (a) Seller delivers to Buyer Tenant
Estoppel Certificates from all Tenants of the Vacant Site, (b) the Tenant
Conditions are satisfied with regard to each Tenant at the Vacant Site and (c)
Substantial Completion has occurred; provided, however, the Closing shall occur,
if at all, no later than the end of the Earnout Term. If the Purchase Price is
not delivered to Seller before 1:00 p.m. E.S.T. on the Closing Date, then the
payments required to be made by Seller or Buyer under this Agreement shall be
determined assuming that the Closing Date occurred on the day after the actual
Closing.
21.5 ADDITIONAL CONDITIONS. In addition to the other applicable
conditions to Closing for the Vacant Site set forth in this Agreement (other
than those conditions to Closing which are specific or unique to the Property),
it shall be an additional condition to Buyer's obligation to close that the
Tenants of the Vacant Space shall be nationally or regionally recognized retail
tenants, including, without limitation, XxXxx Fabrics, Dress Barn, Michael's,
CompUSA, Gander Mountain, Sofa Express, Fresh Market, Wild Oats, PetsMart,
Circuit City, Best Buy and Dick's Sporting Goods, and such Leases do not violate
exclusive uses granted to then existing Tenants of the Project.
21.5 DEFAULT AND REMEDIES REGARDING THE SALE OF THE VACANT SITE.
Notwithstanding anything to the contrary contained in Section 11 above:
(a) BUYER'S DEFAULT. If Buyer defaults in its obligation to
purchase the Vacant Site, Seller may elect to terminate this Agreement and
pursue all remedies against Buyer at law or equity, whereupon this Agreement
shall terminate and the parties shall have no further rights or obligations
hereunder, except for those which expressly survive any such termination.
Notwithstanding the foregoing, nothing contained herein shall waive or diminish
any right or remedy Seller may have at law or in equity for Buyer's default or
breach of SECTION 6.2 or SECTION 6.4 of this Agreement. This provision shall
expressly survive the termination of this Agreement.
(b) SELLER'S DEFAULT. Subject to SECTION 7.2, in the event
of a default by Seller under the terms of this Agreement regarding the sale of
the Vacant Site to Buyer, which is not cured by Seller as provided hereunder,
Buyer's sole and exclusive remedies hereunder shall be to either terminate this
Agreement, or to seek specific performance of Seller's obligations under this
Agreement (which shall include the right to seek reimbursement for recovery
costs, attorneys fees and costs associated with filing suit), .
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized signatory, effective as of the day and
year first above written.
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Signatures continued on the next page.
Signatures continued from the last page.
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By:
---------------------------------
G. Xxxxxx Xxxxxxx, President
EXHIBIT A
DESCRIPTION OF LAND
Lots numbered 2, 3, 5 and 7 and Blocks A, B and C as shown on the plat of Stony
Creek Marketplace Xxxx 0, 0, 0, 0, 0 & Xxxxxx X, X & C Secondary Plat recorded
October 22, 2002 in Plat Cabinet 3, Slide 74 as Instrument No. 2002-79217 in the
Office of the Recorder of Xxxxxxxx County, Indiana.
Less and except the Vacant Site. The Survey will contain a new metes and bounds
description for Land only without the Vacant Site.
ATTACH LEGAL FROM SELLER'S TITLE POLICY
EXHIBIT B
ESCROW AGREEMENT
THIS AGREEMENT is made and entered into this ____ day of November, 2003,
by and among DUKE CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited
partnership ("SELLER"), INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation ("BUYER"), and CHICAGO TITLE INSURANCE COMPANY, a New York
corporation ("ESCROW AGENT").
WHEREAS, Seller and Buyer have entered into that certain Agreement for
Purchase and Sale (the "PURCHASE AGREEMENT") dated as of the date hereof, a copy
of which Escrow Agent acknowledges receiving, for the sale and purchase of that
certain real property described therein. The Purchase Agreement is , by this
reference, made a part hereof, and all terms used but not defined herein shall
have the meanings given to such terms in the Purchase Agreement; and
WHEREAS, Buyer and Seller desire to have Escrow Agent hold the Xxxxxxx
Money in escrow, as required by the Purchase Agreement and pursuant to the terms
hereof.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Simultaneous with the execution of this Escrow Agreement, Buyer
will deliver and deposit with Escrow Agent the amount of TWO HUNDRED FIFTY
THOUSAND and No/100 DOLLARS ($250,000.00) as required by Section 3 of the
Purchase Agreement (the "XXXXXXX MONEY"). The Escrow Agent agrees to immediately
deposit the Xxxxxxx Money in an interest-bearing account in a national banking
association and to hold and disburse the same, together with any interest earned
thereon, as required by the Purchase Agreement.
2. Upon the Closing Date, Escrow Agent shall apply the Xxxxxxx
Money, together with any accrued interest thereon, to the Purchase Price as
required by the Purchase Agreement.
3. Within fifteen (15) days after written notification from both
Buyer and Seller that the sale contemplated by the Purchase Agreement shall not
take place, Escrow Agent shall deliver the Xxxxxxx Money as required by the
Purchase Agreement.
4. Buyer and Seller hereby covenant and agree that Escrow Agent
shall not be liable for any loss, cost or damage which it may incur as a result
of serving as Escrow Agent hereunder, except for any loss, cost or damage
arising out of Escrow Agent's gross negligence or willful misconduct.
Accordingly, Escrow Agent shall not incur any liability with respect to (a) any
action taken or omitted to be taken in good faith upon advice of its counsel,
given with respect to any questions relating to its duties and responsibilities
hereunder, or (b) any action taken or omitted to be taken in reliance upon any
document, including any written notice of instruction provided for herein or in
the Purchase Agreement, not only as to the due execution and the validity and
effectiveness thereof, but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine
and to have been signed or presented by proper person or persons in conformity
with the provisions of this Agreement. Buyer and Seller hereby agree to
indemnify and hold harmless Escrow Agent against any and all losses, claims,
damages, liabilities and expenses, including reasonable costs of investigation
and reasonable attorneys' fees and disbursements actually incurred, which may be
imposed upon and incurred by Escrow Agent in connection with its serving as
Escrow Agent hereunder. In the event of a dispute between Buyer and Seller,
Escrow Agent shall be entitled to tender unto the registry or custody of any
court of competent jurisdiction in the county in which Escrow Agent's address
for notice is located all money or property in Escrow Agent's hands held under
the terms of this Agreement and the Purchase Agreement, together
with such legal pleadings as it deems appropriate, and thereupon shall be
discharged of its obligations hereunder and under the Purchase Agreement.
6. Any notice required hereunder shall be delivered to the parties
and in the manner as required by the Purchase Agreement. Escrow Agent's address
for notice purposes is as follows:
CHICAGO TITLE INSURANCE COMPANY
Attn: Xxxxx Xxxxxx, Assistant Vice President and
Sr. Escrow Officer
171 X. Xxxxx Street
Division II
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
7. This Agreement shall be governed by and construed in accordance
with the internal laws of the state in which the Land is located , without
reference to the conflicts of laws or choice of law provisions thereof.
8. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have caused this Escrow Agreement to
be duly executed as of the date first written above.
SELLER: DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT C
XXXX OF SALE
THIS XXXX OF SALE is executed and delivered as of the ___ day of
___________, 200_, by DUKE CONSTRUCTION LIMITED PARTNERSHIP, , an Indiana
limited partnership ("SELLER"), for the benefit of ____________________
("BUYER").
W I T N E S S E T H:
WHEREAS, Seller has sold and conveyed to Buyer the real property (the
"PROPERTY") described in that certain Deed executed by Seller in favor of Buyer
dated as of the date hereof; and
WHEREAS, in connection with such conveyance of the Property, Seller has
agreed to sell to Buyer and Buyer has agreed to purchase from Seller all right,
title and interest of Seller in and to the tangible personal property located on
the Property and used in connection with operation and maintenance of the
Improvements including, but not limited to the following: None (the "PERSONAL
PROPERTY");
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid at or before the execution, sealing and delivery
hereof, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Seller, Seller hereby agrees as follows:
1. SALE AND CONVEYANCE. Seller hereby sells, transfers and conveys
unto Buyer, its successors and assigns, all right, title and interest of Seller
in and to the Personal Property.
2. GOVERNING LAW. This Xxxx of Sale shall be governed by and
construed in accordance with the internal laws of the state in which the
Property is located, without reference to the conflicts of laws or choice of law
provisions thereof.
3. BINDING EFFECT. This Xxxx of Sale shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed
by its duly authorized signatory as of the day and year first above written.
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT D
RENT ROLL
Attached.
EXHIBIT E
DISCLOSURE SCHEDULE
None.
EXHIBIT F
FORM OF DEED
LIMITED WARRANTY DEED
THIS INDENTURE WITNESSETH, that DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership ("Grantor"), CONVEYS AND SPECIALLY WARRANTS to
____________________________ a(n) ___________________ corporation for the sum of
Ten Dollars ($10.00) and other good and valuable consideration, the receipt of
which is hereby acknowledged, certain real estate and all improvements located
thereon located in ______________________, __________, as more specifically
described in the attached EXHIBIT A (the "Property"), subject to the items set
forth on the attached Exhibit B.
The warranty of title by Grantor is limited to a warranty against the
acts of Grantor and those claiming by, through or under Grantor, and not
otherwise.
IN WITNESS WHEREOF, Grantor has caused this Limited Warranty Deed to be
executed this ___ day of ________________, ________________.
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
STATE OF _______________)
) SS:
COUNTY OF_______________)
Before me, a Notary Public in and for said County and State, personally
appeared ___________________, by me known and by me known to be the
_______________ of Duke Business Centers Corporation, an Indiana corporation,
the sole general partner of Duke Construction Limited Partnership, an Indiana
limited partnership, who acknowledged the execution of the foregoing on behalf
of said partnership.
WITNESS my hand and Notarial Seal this ___ day of ______________.
------------------------------
Notary Public
------------------------------
(Printed Signature)
My Commission Expires: ______________
My County of Residence: ______________
This instrument was prepared by: __________________________.
After recording return to: ____________________________
____________________________
____________________________
Send tax bills to: ____________________________
____________________________
____________________________
EXHIBIT G
NON-FOREIGN CERTIFICATE
To inform _____________________("TRANSFEREE"), that withholding of tax under
Section 1445 of the Internal Revenue Code of 1986, as amended (the "CODE"), will
not be required upon the transfer of certain real property to Transferee by DUKE
CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited partnership ("TRANSFEROR"),
the undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined
in the Code and the Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. employer identification number is
_______________; and
3. Transferor's address is _______________________________.
Transferor understands that this Certification may be disclosed to the Internal
Revenue Service by Transferee and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this Certification and
to the best of my knowledge and belief it is true, correct and complete, and I
further declare that I have authority to sign this document on behalf of
Transferor.
Dated as of:
------------
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
EXHIBIT H
NOTICE TO TENANTS
(Date)
Tenants of [Property Name]
Dear Tenants:
We are pleased to inform you that ____________________________ in
______________, _____________ County, ______________, has been acquired by
_______________________________ ("Buyer"). All future communications and notices
should now be directed, as applicable, to:
____________________________
____________________________
____________________________
____________________________
with a copy to:
All future rent and other payments should now be directed and paid, as
applicable, to:
____________________________
____________________________
____________________________
____________________________
Lastly, please notify your insurance carrier and have it change the name
of the additional insured under any policies of insurance (required in your
lease) to _____________ _____________________________________, and their
successors and assigns. Once this is done, please deliver an updated certificate
of insurance to Buyer.
Thank you for your cooperation, and feel free to call if you have any
questions.
Very truly yours,
--------------------------------------
By:
------------------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("ASSIGNMENT") is entered into
as of the ____ day of _____________, 200_, by and DUKE CONSTRUCTION LIMITED
PARTNERSHIP , an Indiana limited partnership ("ASSIGNOR"), and
______________________ ("ASSIGNEE").
RECITALS:
A. Assignor has sold and conveyed to Assignee all that tract or
parcel of land more particularly described in that certain deed executed by
Assignor in favor of Assignee dated as of the date hereof, together with all
improvements thereon and all rights, easements and appurtenances thereto
(hereinafter collectively referred to as the "PROPERTY") pursuant to that
certain Agreement for Purchase and Sale between Assignor and Assignee dated as
of ________________ (the "PURCHASE AGREEMENT"). All capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Purchase Agreement.
B. In connection with such conveyance of the Property, Assignor and
Assignee wish to enter into this Assignment to evidence the terms of the
transfer by Assignor to Assignee of all right, title and interest of Assignor
(i) as landlord in and to all leases, subleases and other occupancy agreements
(collectively, the "LEASES") in force and effect at the date hereof, whether or
not of record, for the use or occupancy of any portion of the Property including
the leases referred to in that certain Rent Roll attached as EXHIBIT A hereto;
(ii) all guaranties (collectively, the "GUARANTIES") of the obligations of the
tenants under the Leases, if any; (iii) all security deposits (hereinafter
collectively referred to as the "SECURITY DEPOSITS") as described in such Rent
Roll, the receipt of which is hereby acknowledged by Assignee; (iv) the
Commission Agreements and Service Contracts, (v) all site plans, construction
and development drawings, plans and specifications (collectively, the "PLANS")
for the Property; (vi) all sewer and water permits and licenses, building
permits, certificates of occupancy, demolition and excavation permits, curb cut
and right-of-way permits, drainage rights, permits, licenses and similar or
equivalent private and governmental documents of every kind and character
whatsoever pertaining or applicable to or in any way connected with the
development, construction, ownership, or operation of the Property
(collectively, the "PERMITS"), and (vii) all warranties and guaranties
pertaining or applicable to or in any way connected with the development,
construction, ownership or operation of the Property (collectively, the
"WARRANTIES") and (viii) all of Seller's right, title and interest in and to the
name "Stony Creek Marketplace." (the "Intangible Rights").
NOW, THEREFORE, for and in consideration of the foregoing recitals,
which are incorporated herein, the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto, Assignor and Assignee hereby agree as
follows:
1. TRANSFER AND ASSIGNMENT. Assignor hereby sells, transfers,
assigns, delivers and conveys to Assignee all right, title and interest of
Assignor in, to and under the Leases (as landlord), the Guaranties, the Security
Deposits, Commission Agreements, the Intangible Rights, and Service Contracts.
To the extent assignable, Assignor hereby sells, transfers, assigns, delivers
and conveys to Assignee all right, title and interest of Assignor in, to and
under the Plans, Permits and Warranties. To the extent any Plans, Permits and/or
Warranties are not assignable, Assignor shall cooperate fully with Assignee, but
without cost or expense to Assignor, to enforce such Plans, Permits and/or
Warranties for the benefit of Assignee.
2. ASSUMPTION OF OBLIGATIONS. Assignee hereby assumes and agrees to
observe and perform all of the obligations and duties of Assignor under each of
the Leases, Commission Agreements, Service Contracts, Plans, Permits and
Warranties to be observed, performed or discharged on, or relating to, or
accruing with respect to the period after the date of this Assignment,
including, without limitation, all covenants and
obligations of Assignor with respect to the Security Deposits.
3. GOVERNING LAW. This instrument shall be governed by and
construed in accordance with the internal laws of the state in which the
Property is located, without reference to the conflicts of laws or choice of law
provisions thereof.
4. BINDING EFFECT. This instrument shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
5. COUNTERPARTS. This Assignment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Assignor and Assignee have each caused this
Assignment to be executed by its duly authorized signatory as of the day and
year first above written.
ASSIGNOR:
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation,
its sole general partner
By:
---------------------------
Name:
-------------------------
Title:
------------------------
ASSIGNEE:
INLAND REAL ESTATE ACQUISITIONS, INC., AN
ILLINOIS CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT A - RENT ROLL
EXHIBIT J
LIST OF SERVICE CONTRACTS
1. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxxxx Group dated 11/19/02 for Landscape Maintenance
Services of Inline Building at 17070-17200 Mercantile Blvd. for the 2003
Season.
2. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxxxx Group dated 11/19/02 for Landscape Maintenance
Services of Outlot Building 5 located at 17143-17177 Mercantile Blvd.
for the 2003 Season.
3. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxxxx Group dated 11/19/02 for Landscape Maintenance
Services of Outlot Building 2 located at 17015-17055 Mercantile Blvd.
for the 2003 Season.
4. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxxxx Group dated 11/19/02 for Landscape Maintenance
Services of Detention and Common Monument Sign Areas for the 2003
Season.
5. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxx Landscape/Snow Company, Inc. dated 09/15/03 for
Snow Removal Services of Outlot Building 2 located at 17015-17055
Mercantile Blvd. for the 2003-2004 Winter Season.
6. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxx Landscape/Snow Company, Inc. dated 09/15/03 for
Snow Removal Services of 17070-17160 Mercantile Blvd. for the 2003-2004
Winter Season.
7. Contract for Goods and Services between Duke Construction Limited
Partnership and Xxxxxx Landscape/Snow Company, Inc. dated 09/15/03 for
Snow Removal Services of Outlot Building 5 located at 17143-17177
Mercantile Blvd. for the 2003-2004 Season.
8. Contract for Goods and Services between Duke Construction Limited
Partnership and Ameri-Clean dated 07/25/03 for Parking Lot Sweeping,
Sidewalk Sweep - Three times per week: Saturday, Tuesday and Thursday,
and Empty of Trash Cans four times per week: Saturday, Tuesday, Thursday
and Sunday for South Outlot Building located at 17015-17055 Mercantile
Blvd. on a month-to-month contract.
9. Contract for Goods and Services between Duke Construction Limited
Partnership and Ameri-Clean dated 07/25/03 for Parking Lot Sweeping,
Sidewalk Sweep - Three times per week: Saturday, Tuesday and Thursday,
and Empty of Trash Cans four times per week: Saturday, Tuesday, Thursday
and Sunday for North Outlot Building located at 17143-17177 Mercantile
Blvd. on a month-to-month contract.
10. Contract for Goods and Services between Duke Construction Limited
Partnership and Ameri-Clean dated 07/25/03 for Parking Lot Sweeping,
Sidewalk Sweep - Three times per week: Saturday, Tuesday and Thursday,
and Empty of Trash Cans four times per week: Saturday, Tuesday, Thursday
and Sunday for Anchor Building located at 17070-17200 Mercantile Blvd.
on a month-to-month contract.
11. Contract for Goods and Services between Duke Construction Limited
Partnership and Koorsen Protection Services dated 05/07/03 for Fire
Monitoring, Annual Sprinkler Inspection and Domestic Backflow Testing
for Stony Creek Marketplace, 17200 Mercantile Boulevard, Noblesville, IN
on an annual basis per Exhibit A of the Contract.
12. Service Agreement submitted to Duke Realty Corporation from Koorsen
Protection Services dated 04/21/03 for Sprinkler (Fire System) Service
at 00000 Xxxxxxxxxx Xxxx., Xxxxxxxxxxx, XX 00000 (includes annual
inspection of one wet sprinkler system, and one domestic back flow
inspected twice a year and one main backflow inspected once a year).
13. Contract for Goods and Services between Duke Construction Limited
Partnership and Koorsen Protection Services dated 05/07/03 for Fire
Monitoring Equipment for Stony Creek Marketplace, 00000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx, XX.
LIST OF COMMISSION AGREEMENTS
1. X.X. XXXXXX COMPANY IN REFERENCE TO 1,615 SF LEASE WITH PAPA JOHN'S USA,
INC. DELINEATED IN LOI DATED SEPTEMBER 4, 2003.
2. XXXXXX X. XXXXXX IN REFERENCE TO 1,615 SF LEASE WITH DANBAR JEWELERS,
INC., DBA GIOVANNI JEWELERS DELINEATED IN LOI DATED AUGUST 11, 2003.
3. CB XXXXXXX XXXXX IN REFERENCE TO 22,000 SF LEASE WITH XXXXXX & NOBLE
BOOKSELLERS, INC., A DELAWARE CORPORATION DELINEATED IN LOI DATED MAY
29, 2002.
4. XXXXXXX XXXXXXXX REALTY, INC. IN REFERENCE TO 9,381 SF LEASE WITH PIER 1
IMPORTS (U.S.), INC. DELINEATED IN LOI DATED JANUARY 2, 2002.
5. XXXX & ASSOCIATES IN REFERENCE TO 35,000 SF LEASE WITH LINENS `N THINGS
OF NOBLESVILLE, IN. DELINEATED IN LOI DATED NOVEMBER 29, 2000.
6. THE XXXXXX COMPANY IN REFERENCE TO 4,892 SF LEASE WITH BLOCKBUSTER,
INC., A DELAWARE CORPORATION DELINEATED IN LOI DATED JULY 10, 2002.
7. XXXXXXXX XXXXX & ASSOCIATES IN REFERENCE TO 4,200 SF LEASE WITH KNEAD
BREAD LLC DBA PANERA BREAD DELINEATED IN LOI DATED JANUARY 25, 2002.
8. PREMIERE PROPERTIES USA, INC. IN REFERENCE TO 1.75 ACRES LEASE WITH
XXXXX'X ROADHOUSE, INC. DELINEATED IN LOI DATED MARCH 18, 2002.
9. THE XXXXXX COMPANY IN REFERENCE TO 1,600 SF LEASE WITH BAY TREATS, INC.
DBA XXXXXX MOO'S DELINEATED IN LOI DATED AUGUST 6, 2002.
10. THE XXXXXX COMPANY IN REFERENCE TO 3,060 SF LEASE WITH OSSIP OPTOMETRY &
OPHTHALMOLOGY DELINEATED IN LOI DATED MAY 28, 2002.
11. THE XXXXXX COMPANY IN REFERENCE TO 2,000 SF LEASE WITH AZTEC PARTNERS,
LLC, DBA QDOBA
DELINEATED IN LOI DATED AUGUST 15, 2002.
EXHIBIT K
OFFICER'S CERTIFICATE
The undersigned, _________________, hereby certifies that:
(1) he is the __________________________________of Duke Realty Corporation,
an Indiana corporation (the "Corporation"), the general partner of
__________________________, an ____________________ (the "Partnership"),
and as such, he has access to the books and records of both the
Corporation and the Partnership and is making this certification for and
on behalf of the Corporation;
(2) he is also a member of the Investment Committee of the Corporation,
which has the authority to determine whether the Corporation, as general
partner of the Partnership, should sell any building owned by the
Partnership and to authorize individuals at the Corporation to enter
into agreements to effectuate such disposition;
(3) at a meeting of the Investment Committee held on November 10, 2003 at
which a quorum of the members were present, it was unanimously resolved
that the Partnership is authorized to sell the real estate and
improvements thereto located at __________________________, and more
particularly described on EXHIBIT A attached hereto, for a sales price
of ___________________ and No/100 Dollars ($_______________________) and
upon such other terms and conditions as may be deemed appropriate or
necessary by Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xx.,
Xxxxxx X. Xxxxxxxx [ADD REGIONAL EXECUTIVE VICE PRESIDENT];
(4) Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxx, Xx., Xxxxxx X.
Xxxxxxxx, [ADD REGIONAL EXECUTIVE VICE PRESIDENT], Xxxxxx X. Xxxxxxx,
and Xxxx X. Xxxxxx, as officers of the Corporation, or any of them, are
authorized from time to time to execute such documents as may be deemed
appropriate or necessary in their determination to consummate said sale.
Executed the ___ day of _____________________, 200_.
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EXHIBIT L
NOTICE TO VENDORS
(Date)
Vendors of [Property Name]
Dear Vendors:
We are pleased to inform you that ____________________________ in
______________, _____________ County, ______________, has been acquired by
_______________________________. All future communications and notices should
now be directed, as applicable, to:
____________________________
____________________________
____________________________
____________________________
Thank you for your cooperation, and feel free to call if you have any
questions.
Very truly yours,
--------------------------------------
By:
------------------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
EXHIBIT M
FORM OF TENANT ESTOPPEL CERTIFICATE
To:
Inland Real Estate Acquisitions, Inc., and
Inland Southeast _______, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Re: Lease Agreement _____________ dated and amended _____________("Lease"),
between _________________ as "Landlord", and ________, as "Tenant",
guaranteed by _______________________ ("Guarantor") for leased premises
known as ______________________ (the "Premises") of the property commonly
known as _____________ (the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and waivers
related to the Lease
b. Commencement Date
c. Expiration Date
d. Current Annual Base Rent
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases ______________ _____________
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options ____________ Additional Terms for
________ years at $________ per year
i. Termination Options Termination Date ______________
Fees Payable _________________
2. Tenant further certifies to Purchaser that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and
Landlord with respect to the Premises;
b. the Lease has not been assigned and the Premises have not been sublet
by Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or
abatements required to be given by Landlord to Tenant have been given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to pay
interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in paragraph
1(i));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or
directives relating to the use or condition of the Premises or the
Property;
l. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein;
m. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws;
n. the Lease does not give the Tenant any operating exclusives for the
Property; and
o. Rent has been paid through ______ __, 2003.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease
until Tenant is notified otherwise in writing by Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at lender's
request, so long as the lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant
further acknowledges and agrees that Purchaser (including its lender),
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
Its:
--------------------------
Date: , 2003
-------------------------
EXHIBIT N
RESERVED
EXHIBIT O
REA ESTOPPEL STATEMENT
Intentionally Omitted.
3.
EXHIBIT P
FORM OF SURVEY CERTIFICATION
SURVEYOR'S CERTIFICATION
I/We hereby certify to INLAND _______________________________(Inland
nominee), _________________ (Lender) and ___________________________________
(Name of Title Insurance Company) that (a) this survey was prepared by me or
under my supervision, (b) the legal description of the property as set forth
herein, and the location of all improvements, encroachments, fences, easements,
roadways, rights of way and setback lines which are either visible or of record
in _______________ County, __________________ (according to Commitment for Title
Insurance Number __________, dated ___________, 2001(2), issued
________________________________), are accurately reflected hereon, (c) this
survey accurately depicts the state of facts as they appear on the ground, (d)
except as shown hereon, there are no improvements, encroachments, fences or
roadways on any portion of the property reflected hereon, (e) the property shown
hereon has access to a publicly dedicated roadway, (f) the property described
hereon {does} {does not} lie in a 100 year flood plain identified by the
Secretary of Housing and Urban Development or any other governmental authority
under the National Flood Insurance Act of 1968 (24 CFRSection 1909.1), as
amended (such determination having been made from a personal review of flood map
number _______, which is the latest available flood map for the property), (g)
the title lines and lines of actual possession are the same, (h) all utility
services required for the operation of the property either enter the property
through adjoining public streets, or this survey shows the point of entry and
location of any utilities which pass through or are located on adjoining private
land, (i) this survey shows the location and direction of all storm drainage
systems for the collection and disposal of all surface drainage, (j) the
property surveyed contains _______ acres and ___________ parking spaces, (k) any
discharge into streams, rivers, or other conveyance systems is shown on the
survey. This survey has been made in accordance with "MINIMUM STANDARD DETAIL
REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS" jointly established and adopted
by American Land Title Association ("ALTA") and American Congress on Surveying
and Mapping ("ACSM") in 1999 and meets the accuracy requirements of an Urban
Survey, as defined therein and includes items 1, 3, 4, 6, 7(a, b, and c), 8-11
and 13 of Table A thereof.
Dated: , 2003 (NAME OF SURVEYOR AND QUALIFICATION)
-------------
----------------------------------
Registration No. _________________
Note: Buyer also requires a finished floor elevation certificate for all
finished structures located in a flood zone
