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Exhibit 10.57
REINSTATEMENT OF AND AMENDMENT
TO PURCHASE AND SALE AGREEMENT
(NORTH RANCH PAVILIONS)
This Reinstatement of and Amendment to Purchase and Sale Agreement
("AMENDMENT") is made as of the 14 day of January, 2004, by and between CH
REALTY II/NORTH RANCH, L.P., a Delaware limited partnership ("SELLER"), and
INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation ("PURCHASER").
RECITALS:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Agreement (the "PURCHASE AND SALE AGREEMENT") dated effective December 17, 2003,
for the acquisition of the retail shopping center known locally as the North
Ranch Pavilions located in the City of Thousand Oaks, Ventura County, California
more particularly described in the Purchase and Sale Agreement (the "PROPERTY");
WHEREAS, the Purchase and Sale Agreement terminated by its terms on
December 24, 2003, while the parties resolved certain due diligence issues; and
WHEREAS, Seller and Purchaser mutually desire to reinstate and modify the
Purchase and Sale Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual agreements stated
herein and other good and valuable consideration, the receipt, sufficiency and
adequacy of each of which is hereby acknowledged and confessed, Seller and
Purchaser hereby agree as follows:
1. REINSTATEMENT. It is the express agreement of Seller and Purchaser
that, upon the execution of this Amendment by both parties, the Purchase and
Sale Agreement shall be deemed for all purposes reinstated and in full force and
effect except as modified hereby.
2. SATISFACTION OF ALL DUE DILIGENCE CONDITIONS. Purchaser, by its
execution hereof, acknowledges that it has fully waived its right to terminate
the Purchase and Sale Agreement pursuant to Section 4.4 of the Purchase and Sale
Agreement and further by its execution hereof agrees that the Earnest Money (as
defined in the Purchase and Sale Agreement) in the amount of $300,000.00
previously deposited with the Title Company shall be, save and except for a
default by Seller or the occurrence of any other event otherwise entitling
Purchaser to receive a return of the Earnest Money pursuant to the terms of the
Purchase and Sale Agreement, deemed earned and, in the event of a default by
Purchaser, forfeitable in accordance with the terms of the Purchase and Sale
Agreement. Expressly, Purchaser further agrees that it has accepted all matters
relating to title as set forth on the pro forma Title Policy issued by the Title
Company identified in the Purchase and Sale Agreement attached hereto as EXHIBIT
"A" (the "PRO FORMA POLICY"). Purchaser and Seller agree that the Title Policy
(as defined in the Purchase and sale Agreement) required to be issued at Closing
pursuant to SECTION 5.4 of the Purchase and Sale Agreement must conform in all
respects to the Pro Forma Policy unless otherwise accepted by Purchaser.
3. AUDIT LETTER. In order to satisfy the requirements of SECTION 12.22 of
the Purchase and Sale Agreement, the parties have negotiated and agreed that the
letter attached hereto as EXHIBIT "B" shall be executed and delivered by Seller
at the Closing in satisfaction of Seller's pre-closing obligations under
SECTION 12.22.
REINSTATEMENT OF AND AMENDMENT TO PURCHASE AND SALE AGREEMENT - Page 1
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4. PRORATIONS/ADJUSTMENTS. The parties agree that prorations at Closing
for Rent shall be based upon the schedule attached as EXHIBIT "C" which provides
to Purchaser prorations based upon the full rental to be paid at the Property
for the month of Closing with the further proviso that the parties shall,
following the Closing, adjust the proration figures used on the Closing
Statements based upon actual collections at the Property for the month of
January, 2004. This PARAGRAPH 4 does not alter the obligations of the parties
pursuant to SECTION 8.1.3(b) of the Purchase and Sale Agreement. It is the
further agreement of the parties that, as to the repairs required on EXHIBIT
"D", Seller has completed the same, and that to the extent the City of Thousand
Oaks (the "CITY") requires post-closing additional work to be undertaken with
regard to the items completed by Seller reflected on EXHIBIT "D" (the
"ADDITIONAL WORK"), Seller shall, upon written notice from Purchaser and the
City, either (i) complete the Additional Work at its cost and expense or
(ii) reimburse Purchaser for all third-party costs incurred by Purchaser in the
completion of the Additional Work. The term "Additional Work" shall mean ONLY
work required by the City as to the items completed by Seller described on
EXHIBIT "D".
5. CLOSING DATE. The parties hereto hereby agree that the Closing shall
occur on or before 5:00 p.m. central standard time January 15, 2004, and that in
order to accommodate the recording requirements of the jurisdiction in which the
Property is located, the parties will execute and deliver to the Title Company
the documents required to consummate the transaction in time sufficient to
permit the same to be delivered for recordation with the County Recorder for the
Property such that the Closing can occur and the funds can be disbursed on or
before 5:00 p.m. central standard time January 15, 2004.
6. NO FURTHER MODIFICATION. Except as expressly modified herein, all
remaining terms and conditions of the Purchase and Sale Agreement shall remain
in full force as set forth therein. Terms and provisions as utilized herein
shall have the same meaning and effect as used in the Purchase and Sale
Agreement unless expressly modified herein.
7. MULTIPLE COUNTERPARTS. This Amendment may be executed in a number of
identical counterparts. Each such counterpart is deemed an original for all
purposes and all such counterparts shall, collectively, constitute one
agreement, but, in making proof of this Amendment or the Purchase and Sale
Agreement, it shall not be necessary to produce or account for more than one
counterpart.
8. FACSIMILE TRANSMISSION. For the purposes of this Amendment, the
parties agree that they will accept and rely upon facsimile transmission and
execution of this Amendment to be binding upon each other. To the extent the
parties choose to rely upon execution by facsimile execution and transmission of
this Amendment, the parties shall cause "ink signed originals" of this Amendment
to be executed to each of the parties and the Title Company.
REINSTATEMENT OF AND AMENDMENT TO PURCHASE AND SALE AGREEMENT - Page 2
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EXECUTED as of the date first above written.
SELLER:
CH REALTY II/NORTH RANCH, L.P.,
a Delaware limited partnership
By: CH Realty II/Retail GP, L.L.C.,
a Delaware limited liability company,
its General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability company,
its Manager
By: /s/ Robert A. McClain
--------------------------------
Name: Robert A. McClain
------------------------------
Title: Vice President
-----------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ E. Joseph Cosenza
-------------------------------------
Name: E. Joseph Cosenza
------------------------------------
Title: President
-----------------------------------
REINSTATEMENT OF AND AMENDMENT TO PURCHASE AND SALE AGREEMENT - Page 3
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[ILLEGIBLE]
AMERICAN LAND TITLE ASSOCIATION
OWNER'S POLICY
(10-17-92)
EXHIBIT A
CHICAGO TITLE INSURANCE COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED
IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, CHICAGO TITLE INSURANCE
COMPANY, a Missouri corporation, herein called the Company, insures, as of Date
of Policy shown in Schedule A, against loss or damage, not exceeding the Amount
of Insurance stated in Schedule A, sustained or incurred by the insured by
reason of:
1. Title to the estate or interest described in Schedule A being vested
other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs, attorneys' fees and expenses incurred in
defense of the title, as insured, but only to the extent provided in the
Conditions and Stipulations.
IN WITNESS WHEREOF, CHICAGO TITLE INSURANCE COMPANY has caused this policy to be
signed and sealed as of Date of Policy shown in Schedule A, the policy to become
valid when countersigned by an authorized signatory.
Issued by: CHICAGO TITLE INSURANCE COMPANY
CHICAGO TITLE COMPANY By:
245 SOUTH LOS ROBLES AVENUE
SUITE 105
PASADENA, CA 91101-2820 /s/ [ILLEGIBLE]
(626) 432-7600 President
[SEAL]
By:
/s/ [ILLEGIBLE]
Secretary
ALTA Owner's Policy (10-17-92)
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EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy
and the Company will not pay loss or damage, costs, attorneys' fees or expenses
which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not
limited to building and zoning laws, ordinances, or regulations)
restricting, regulating, prohibiting or relating to (i) the occupancy,
use, or enjoyment of the land; (ii) the character, dimensions or
location of any improvement now or hereafter erected on the land;
(iii) a separation in ownership or a change in the dimensions or area
of the land or any parcel of which the land is or was a part; or (iv)
environmental protection, or the effect of any violation of these
laws, ordinances or governmental regulations, except to the extent
that a notice of the enforcement thereof or a notice of a defect, lien
or encumbrance resulting from a violation or alleged violation
affecting the land has been recorded in the public records at Date of
Policy.
(b) Any governmental police power not excluded by (a) above, except to the
extent that a notice of the exercise thereof or a notice of a defect,
lien or encumbrance resulting from a violation or alleged violation
affecting the land has been recorded in the public records at Date of
Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been
recorded in the public records at Date of Policy, but not excluding from
coverage any taking which has occurred prior to Date of Policy which would
be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date
of Policy, but known to the insured claimant and not disclosed in
writing to the Company by the insured claimant prior to the date the
insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy; or
(e) resulting in loss or damage which would not have been sustained
if the insured claimant had paid value for the estate or interest
insured by this policy.
4. Any claim, which arises out of the transaction vesting in the insured
the estate or interest insured by this policy, by reason of the operation
of federal bankruptcy, state insolvency, or similar creditors' rights laws,
that is based on:
(i) the transaction creating the estate or interest insured by this policy
being deemed a fraudulent conveyance or fraudulent transfer; or
(ii) the transaction creating the estate or interest insured by
this policy being deemed a preferential transfer except where the
preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for value or
a judgment or lien creditor.
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CONDITIONS AND STIPULATIONS
1. DEFINITION OF TERMS
The following terms when used in this policy mean:
(a) "insured": the insured named in Schedule A, and, subject to any rights
or defenses the Company would have had against the named insured, those who
succeed to the interest of the named insured by operation of law as
distinguished from purchase including, but not limited to, heirs, distributes,
devisees, survivors, personal representatives, next of kin, or corporate or
fiduciary successors.
(b) "insured claimant": an insured claiming loss or damage.
(c) "knowledge" or "known": actual knowledge, not constructive knowledge or
notice which may be imputed to an insured by reason of the public records as
defined in this policy or any other records which impart constructive notice of
matters affecting the land.
(d) "land": the land described or referred to in Schedule A, and
Improvements affixed thereto which by law constitute real property. The term
"land" does not include any property beyond the lines of the area described or
referred to in Schedule A, nor any right, title, interest, estate or easement in
abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing
herein shall modify or limit the extent to which a right of access to and from
the land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, trust deed, or other security
instrument.
(f) "public records": records established under state statutes at Date of
Policy for the purpose of imparting constructive notice of matters relating to
real property to purchasers for value and without knowledge. With respect to
Section 1(a)(iv) of the Exclusions From Coverage, "public records" shall also
include environmental protection liens filed in the records of the clerk of the
United States district court for the district in which the land is located.
(g) "unmarketability of the title": an alleged or apparent matter affecting
the title to the land, not excluded or excepted from coverage, which would
entitle a purchaser of the estate or interest described in Schedule A to be
released from the obligation to purchase by virtue of a contractual condition
requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE
The coverage of this policy shall continue in force as of Date of Policy in
favor of an insured only so long as the insured retains an estate or interest in
the land, or holds an indebtedness secured by a purchase money mortgage given by
a purchaser from the insured, or only so long as the insured shall have
liability by reason of covenants of warranty made by the insured in any transfer
or conveyance of the estate or interest. This policy shall not continue in force
in favor of any purchaser from the insured of either (i) an estate or interest
in the land, or (ii) an indebtedness secured by a purchase money mortgage given
to the insured.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The insured shall notify the Company promptly in writing (i) in case of any
litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come
to an insured hereunder of any claim of title or interest which is adverse to
the title to the estate or interest, as insured, and which might cause loss or
damage for which the Company may be liable by virtue of this policy, or (iii) if
title to the estate or interest, as insured, is rejected as unmarketable. If
prompt notice shall not be given to the Company, then as to the insured all
liability of the Company shall terminate with regard to the matter or matters
for which prompt notice is required; provided, however, that failure to notify
the Company shall in no case prejudice the rights of any insured under this
policy unless the Company shall be prejudiced by the failure and then only to
the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE
(a) Upon written request by the insured and subject to the options
contained in Section 6 of these Conditions and Stipulations, the Company, at its
own cost and without unreasonable delay, shall provide for the defense of an
insured in litigation in which any third party asserts a claim adverse to the
title or interest as insured, but only as to those stated causes of action
alleging a defect, lien or encumbrance or other matter insured against by this
policy. The Company shall have the right to select counsel of its choice
(subject to the right of the insured to object for reasonable cause) to
represent the insured as to those stated causes of action and shall not be
liable for and will not pay the fees of any other counsel. The Company will not
pay any fees, costs or expenses incurred by the insured in the defense of those
causes of action which allege matters not insured against by this policy.
(b) The Company shall have the right, at its own cost, to institute and
prosecute any action or proceeding or to do any other act which in its opinion
may be necessary or desirable to establish the title to the estate or interest,
as insured, or to prevent or reduce loss or damage to the insured. The Company
may take any appropriate action under the terms of this policy, whether or not
it shall be liable hereunder, and shall not thereby concede liability or waive
any provision of this policy. If the Company shall exercise its rights under
this paragraph, it shall do so diligently.
(c) Whenever the Company shall have brought an action or interposed a
defense as required or permitted by the provisions of this policy, the Company
may pursue any litigation to final determination by a court of competent
jurisdiction and expressly reserves the right, in its sole discretion, to appeal
from any adverse judgment or order.
(d) In all cases where this policy permits or requires the Company to
prosecute or provide for the defense of any action or proceeding, the insured
shall secure to the Company the right to so prosecute or provide defense in the
action or proceeding, and all appeals therein, and permit the Company to use, at
its option, the name of the Insured for this purpose. Whenever requested by the
Company, the insured, at the Company's expense, shall give the Company all
reasonable aid (i) in any action or proceeding, securing evidence, obtaining
witnesses, prosecuting or defending the action or proceeding, or affecting
settlement, and (ii) in any other lawful act which in the opinion of the Company
may be necessary or desirable to establish the title to the estate or interest
as insured. If the Company is prejudiced by the failure of the insured to
furnish the required cooperation, the Company's obligations to the insured under
the policy shall terminate, including any liability or obligation to defend,
prosecute, or continue any litigation, with regard to the matter or matters
requiring such cooperation.
5. PROOF OF LOSS OR DAMAGE
In addition to and after the notices required under Section 3 of these
Conditions and Stipulations have been provided the Company, a proof of loss or
damage signed and sworn to by the insured claimant shall be furnished to the
Company within 90 days after the insured claimant shall ascertain the facts
giving rise to the loss or damage. The proof of loss or damage shall describe
the defect in, or lien or encumbrance on the title, or other matter insured
against by this policy which constitutes the basis of loss or damage and shall
state, to the extent possible, the basis of calculating the amount of the loss
or damage. If the Company is prejudiced by the failure of the insured claimant
to provide the required proof of loss or damage, the Company's obligations to
the insured under the policy shall terminate, including any liability or
obligation to defend, prosecute, or continue any litigation, with regard to the
matter or matters requiring such proof of loss or damage.
In addition, the insured claimant may reasonably be required to submit to
examination under oath by any authorized representative of the Company and shall
produce for examination, inspection and copying, at such reasonable times and
places as may be designated by any authorized representative of the Company, all
records, books, ledgers, checks, correspondence and memoranda, whether bearing a
date before or after Date of Policy, which reasonably pertain to the loss or
damage. Further, if requested by any authorized representative of the Company,
the insured claimant shall grant its permission, in writing, for any authorized
representative of the Company to examine, inspect and copy all records, books,
ledgers, checks, correspondence and memoranda in the custody or control of a
third party, which reasonably pertain to the loss or damage. All information
designated as confidential by the insured claimant provided to the Company
pursuant to this Section shall not be disclosed to others unless. In the
reasonable judgment of the Company, it is necessary in the administration of the
claim. Failure of the insured claimant to submit for examination under oath,
produce other reasonably requested information or grant permission to secure
reasonably necessary information from third parties as required in this
paragraph shall terminate any liability of the Company under this policy as to
that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY
In case of a claim under this policy, the Company shall have the following
additional options:
(a) TO PAY OR TENDER PAYMENT OF THE AMOUNT OF INSURANCE.
To pay or tender payment of the amount of insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or
tender of payment and which the Company is obligated to pay.
Upon the exercise by the Company of this option, all liability and
obligations to the insured under this policy, other than to make the payment
required, shall terminate, including any liability or obligation to defend,
prosecute, or continue any litigation, and the policy shall be surrendered to
the Company for cancellation.
(b) TO PAY OR OTHERWISE SETTLE WITH PARTIES OTHER THAN THE INSURED OR WITH
THE INSURED CLAIMANT.
(i) to pay or otherwise settle with other parties for or in the name of an
insured claimant any claim insured against under this policy, together with any
costs, attorneys' fees and expenses incurred by the insured claimant which were
authorized by the Company up to the time of payment and which the Company is
obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or
damage provided for under this policy, together with any costs, attorneys' fees
and expenses incurred by the insured claimant which were authorized by the
Company up to the time of payment and which the Company is obligated to pay.
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Upon the exercise by the Company of either of [ILLEGIBLE] Options provided
for in paragraphs (b)(i) or (ii), the Company's obligations [ILLEGIBLE] the
insured under this policy for the claimed loss or damage, other than the
payments required to be made, shall terminate, including any liability or
obligation to defend, prosecute or continue any litigation.
7. DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE
This policy is a contract of indemnity against actual monetary loss or
damage sustained or incurred by the insured claimant who has suffered loss or
damage by reason of matters insured against by this policy and only to the
extent herein described.
(a) The liability of the Company under this policy shall not exceed the
least of:
(i) the Amount of Insurance stated in Schedule A; or,
(ii) the difference between the value of the insured estate or interest as
insured and the value of the insured estate or interest subject to the defect,
lien or encumbrance insured against by this policy.
(b) In the event the Amount of Insurance stated in Schedule A at the Date
of Policy is less than 80 percent of the value of the insured estate or interest
or the full consideration paid for the land, whichever is less, or if subsequent
to the Date of Policy an improvement is erected on the land which increases the
value of the insured estate or interest by at least 20 percent over the Amount
of Insurance stated in Schedule A, then this Policy is subject to the following:
(i) where no subsequent improvement has been made, as to any partial loss,
the Company shall only pay the loss pro rata in the proportion that the amount
of insurance at Date of Policy bears to the total value of the insured estate or
interest at Date of Policy; or
(ii) where a subsequent improvement has been made, as to any partial loss,
the Company shall only pay the loss pro rata in the proportion that 120 percent
of the Amount of Insurance stated in Schedule A bears to the sum of the Amount
of Insurance stated in Schedule A and the amount expended for the improvement.
The provisions of this paragraph shall not apply to costs, attorneys' fees
and expenses for which the Company is liable under this policy, and shall only
apply to that portion of any loss which exceeds, in the aggregate, 10 percent of
the Amount of Insurance stated in Schedule A.
(c) The Company will pay only those costs, attorneys' fees and expenses
incurred in accordance with Section 4 of these Conditions and Stipulations.
8. APPORTIONMENT
If the land described in Schedule A consists of two or more parcels which
are not used as a single site, and a loss is established affecting one or more
of the parcels but not all, the loss shall be computed and settled on a pro rata
basis as if the amount of insurance under this policy was divided pro rata as to
the value on Date of Policy of each separate parcel to the whole, exclusive of
any improvements made subsequent to Date of Policy, unless a liability or value
has otherwise been agreed upon as to each parcel by the Company and the insured
at the time of the issuance of this policy and shown by an express statement or
by an endorsement attached to this policy.
9. LIMITATION OF LIABILITY
(a) If the Company establishes the title, or removes the alleged defect,
lien or encumbrance, or cures the lack of a right of access to or from the land,
or cures the claim of unmarketability of title, all as insured, in a reasonably
diligent manner by any method, including litigation and the completion of any
appeals therefrom, it shall have fully performed its obligations with respect to
that matter and shall not be liable for any loss or damage caused thereby.
(b) In the event of any litigation, including litigation by the Company or
with the Company's consent, the Company shall have no liability for loss or
damage until there has been a final determination by a court of competent
jurisdiction, and disposition of all appeals therefrom, adverse to the title as
insured.
(c) The Company shall not be liable for loss or damage to any insured for
liability voluntarily assumed by the insured in settling any claim or suit
without the prior written consent of the Company.
10. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY
All payments under this policy, except payments made for costs, attorneys'
fees and expenses, shall reduce the amount of the insurance pro tanto.
11. LIABILITY NONCUMULATIVE
It is expressly understood that the amount of insurance under this policy
shall be reduced by any amount the Company may pay under any policy insuring a
mortgage to which exception is taken in Schedule B or to which the insured has
agreed, assumed, or taken subject, or which is hereafter executed by an insured
and which is a charge or lien on the estate or interest described or referred to
in Schedule A, and the amount so paid shall be deemed a payment under this
policy to the insured owner.
12. PAYMENT OF LOSS
(a) No payment shall be made without producing this policy for endorsement
of the payment unless the policy has been lost or destroyed, in which case proof
of loss or destruction shall be furnished to the satisfaction of the Company.
(b) When liability and the [ILLEGIBLE] of loss or damage has been
definitely fixed in accordance with these [ILLEGIBLE] and Stipulations, the loss
or damage shall be payable within 30 days thereafter.
13. SUBROGATION UPON PAYMENT OR SETTLEMENT
(a) THE COMPANY'S RIGHT OF SUBROGATION.
Whenever the Company shall have settled and paid a claim under this policy,
all right of subrogation shall vest in the Company unaffected by any act of the
insured claimant.
The Company shall be subrogated to and be entitled to all rights and
remedies which the insured claimant would have had against any person or
property in respect to the claim had this policy not been issued, if requested
by the Company, the insured claimant shall transfer to the Company all rights
and remedies against any person or property necessary in order to perfect this
right of subrogation. The insured claimant shall permit the Company to sue,
compromise or settle in the name of the insured claimant and to use the name of
the insured claimant in any transaction or litigation involving these rights or
remedies.
If a payment on account of a claim does not fully cover the loss of the
insured claimant, the Company shall be subrogated to these rights and remedies
in the proportion which the Company's payment bears to the whole amount of the
loss.
If loss should result from any act of the insured claimant, as stated
above, that act shall not void this policy, but the Company, in that event,
shall be required to pay only that part of any losses insured against by this
policy which shall exceed the amount, if any, lost to the Company by reason of
the impairment by the insured claimant of the Company's right of subrogation.
(b) THE COMPANY'S RIGHTS AGAINST NON-INSURED OBLIGORS.
The Company's right of subrogation against non-insured obligors shall exist
and shall include, without limitation, the rights of the insured to indemnities,
guaranties, other policies of insurance or bonds, notwithstanding any terms or
conditions contained in those instruments which provide for subrogation rights
by reason of this policy.
14. ARBITRATION
Unless prohibited by applicable law, either the Company or the insured may
demand arbitration pursuant to the Title Insurance Arbitration Rules of the
American Arbitration Association. Arbitrable matters may include, but are not
limited to; any controversy or claim between the Company and the insured arising
out of or relating to this policy, any service of the Company in connection with
its issuance or the breach of a policy provision or other obligation. All
arbitrable matters when the Amount of Insurance is $1,000,000 or less shall be
arbitrated at the option of either the Company or the insured. All arbitrable
matters when the Amount of Insurance is in excess of $1,000,000 shall be
arbitrated only when agreed to by both the Company and the insured. Arbitration
pursuant to this policy and under the Rules in effect on the date the demand for
arbitration is made or, at the option of the insured, the Rules in effect at
Date of Policy shall be binding upon the parties. The award may include
attorneys' fees only if the laws of the state in which the land is located
permit a court to award attorneys' fees to a prevailing party. Judgment upon the
award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the
Title Insurance Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT
(a) This policy together with all endorsements, if any, attached hereto by
the Company is the entire policy and contract between the insured and the
Company. In interpreting any provision of this policy, this policy shall be
construed as a whole.
(b) Any claim of loss or damage, whether or not based on negligence, and
which arises out of the status of the title to the estate or interest covered
hereby or by any action asserting such claim, shall be restricted to this
policy.
(c) No amendment of or endorsement to this policy can be made except by a
writing endorsed hereon or attached hereto signed by either the President, a
Vice President, the Secretary, an Assistant Secretary, or validating officer or
authorized signatory of the Company.
16. SEVERABILITY
In the event any provision of the policy is held invalid or unenforceable
under applicable law, the policy shall be deemed not to include that provision
and all other provisions shall remain in full force and effect.
17. NOTICES, WHERE SENT
All notices required to be given the Company and any statement in writing
required to be furnished the Company shall include the number of this policy and
shall be addressed to the Company at the issuing office or to:
Chicago Title Insurance Company
Claims Department
171 North Clark Street
Chicago, Illinois 60601-3294
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NOTE: This is a PRO-FORMA POLICY, furnished or on behalf of the
[ILLEGIBLE] to be insured. It does not reflect the present status of
title and is NOT A COMMITMENT to insure the estate or interest as
shown herein, nor does it evidence the willingness of the Company to
provide any affirmative coverage shown herein. Any such committment
must be an express, written undertaking on appropriate forms of the
Company.
SCHEDULE A
Policy No: 31006316A - X14
Premium: $________
Amount of Insurance: $18,468,000.00
Date of Policy: PROFORMA at 8:00 A.M.
1. Name of Insured:
INLAND WESTERN THOUSAND OAKS L.L.C., A ______________ LIMITED LIABILITY COMPANY
2. The estate or interest in the land hereinafter described or referred to
covered by this policy is:
A FEE AS TO PARCELS A AND B;
AN EASEMENT MORE FULLY DESCRIBED BELOW AS TO PARCEL C
3. Title to said estate or interest at the date hereof is vested in:
INLAND WESTERN THOUSAND OAKS L.L.C., A ____________ LIMITED LIABILITY COMPANY
4. The land referred to in this policy is situated in the State of California,
County of and is described as follows:
SEE ATTACHED DESCRIPTION
<Page>
Policy No: 31006316A - X14
Page 1
DESCRIPTION
PARCEL A:
PARCELS 3 THROUGH 6, INCLUSIVE, AS SHOWN A PARCEL MAP LD-591, IN THE CITY OF
THOUSAND OAKS, COUNTY OF VENTURA, STATE OF CALIFORNIA, FILED IN BOOK 50, PAGES 1
AND 2 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES LYING WITHIN AND UNDER THAT
PORTION OF SAID LAND LYING BELOW A DEPTH OF 500 FEET MEASURED VERTICALLY FROM
THE SURFACE OF SAID LAND, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE
OF SAID LAND NOR INTO THAT PORTION OF THE SUBSURFACE THEREOF LYING ABOVE A DEPTH
OF 500 FEET MEASURED VERTICALLY FROM SAID SURFACE.
PARCEL B:
LOT 162 OF TRACT NO. 3507-3, IN THE CITY OF THOUSAND OAKS, AS PER MAP RECORDED
IN BOOK 96, PAGES 77 THROUGH 85, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, GAS AND OTHER HYDROCARBON SUBSTANCES LYING WITHIN AND UNDER THAT
PORTION OF SAID LAND LYING BELOW A DEPTH OF 500 FEET MEASURED VERTICALLY FROM
THE SURFACE OF SAID LAND, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE
OF SAID LAND NOR INTO THAT PORTION OF THE SUBSURFACE THEREOF, LYING ABOVE A
DEPTH OF 500 FEET MEASURED VERTICALLY FROM SAID SURFACE.
PARCEL C:
THOSE INTEREST RETAINED FOR INGRESS AND EGRESS AND SPECIFICALLY DESCRIBED AS
STRIPS "A', "B" AND "C" AS CONTAINED IN THAT CERTAIN MAP FILED MAY 21, 1990, IN
BOOK 50, PAGE 1 AND 2 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
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SCHEDULE B
Policy No: 31006316A - X14
EXCEPTIONS FROM COVERAGE
This Policy does not insure against loss or damage (and the Company will
not pay costs, attorneys' fees or expenses) which arise by reason of;
A 1. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY
ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 2003-2004
1ST INSTALLMENT: $9,619.04 (PAID)
2ND INSTALLMENT: $9,619.04
PENALTY AND COST: $971.90 (DUE AFTER APRIL 10)
HOMEOWNERS
EXEMPTION: $NONE
CODE AREA: 008106
ASSESSMENT NO: 689-470-035
AFFECTS: PARCEL 3
B 2. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY
ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 2003-2004
1ST INSTALLMENT: $7,044.15 (PAID)
2ND INSTALLMENT: $7,044.15
PENALTY AND COST: $714.41 (DUE AFTER APRIL 10)
HOMEOWNERS
EXEMPTION: $NONE
CODE AREA: 008106
ASSESSMENT NO: 689-470-045
AFFECTS: PARCEL 4
C 3. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY
ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 2003-2004
1ST INSTALLMENT: $14,724.43 (PAID)
2ND INSTALLMENT: $14,724.43
PENALTY AND COST: $1,482.44 (DUE AFTER APRIL 10)
HOMEOWNERS
EXEMPTION: $NONE
CODE AREA: 008106
ASSESSMENT NO: 689-470-055
AFFECTS: PARCEL 5
D 4. SUPPLEMENTAL OR ESCAPED TAXES FOR THE FISCAL YEAR 2002-2003, ASSESSED
PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
<Page>
Policy No: 31006316A - X14
Page 1
SCHEDULE B
(CONTINUED)
1ST INSTALLMENT: $38.63 (PAID)
2ND INSTALLMENT: $38.63
PENALTY: $13.86
DELINQUENT: APRIL 12, 2004
CODE AREA: 008106
ASSESSMENT NO: 689-470-055
AFFECTS: PARCEL 5
E 5. SUPPLEMENTAL OR ESCAPED TAXES FOR THE FISCAL YEAR 2002-2003, ASSESSED
PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
1ST INSTALLMENT: $123.08 (PAID)
2ND INSTALLMENT: $123.08
PENALTY: $22.30
DELINQUENT: APRIL 12, 2004
CODE AREA: 008106
ASSESSMENT NO: 689-470-055
AFFECTS: PARCEL 5
F 6. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY
ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 2003-2004
1ST INSTALLMENT: $25,508.33 (PAID)
2ND INSTALLMENT: $25,508.33
PENALTY AND COST: $2,560.83 (DUE AFTER APRIL 10)
HOMEOWNERS
EXEMPTION: $NONE
CODE AREA: 008106
ASSESSMENT NO: 689-470-065
AFFECTS: PARCEL 6
G 7. PROPERTY TAXES, INCLUDING ANY PERSONAL PROPERTY TAXES AND ANY
ASSESSMENTS COLLECTED WITH TAXES, FOR THE FISCAL YEAR 2003-2004
1ST INSTALLMENT: $8,813.70 (PAID)
2ND INSTALLMENT: $8,813.70
PENALTY AND COST: $891.37 (DUE AFTER APRIL 10)
HOMEOWNERS
EXEMPTION: $NONE
CODE AREA: 008106
ASSESSMENT NO: 689-470-075
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Policy No: 31006316A - X14
Page 2
SCHEDULE B
(CONTINUED)
AFFECTS: LOT 162
H 8. SUPPLEMENTAL OR ESCAPED TAXES FOR THE FISCAL YEAR 2001-2002, ASSESSED
PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
1ST INSTALLMENT: $1,398.66 (PAID)
2ND INSTALLMENT: $1,398.66
PENALTY: $149.86
DELINQUENT: APRIL 12, 2004
CODE AREA: 008106
ASSESSMENT NO: 689-470-075
AFFECTS: LOT 162
I 9. SUPPLEMENTAL OR ESCAPED TAXES FOR THE FISCAL YEAR 2002-2003, ASSESSED
PURSUANT TO THE PROVISIONS OF CHAPTER 3.5 (COMMENCING WITH SECTION 75)
OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA.
1ST INSTALLMENT: $8,356.40 (PAID)
2ND INSTALLMENT: $8,356.40
PENALTY: $845.64
DELINQUENT: APRIL 12, 2004
CODE AREA: 008106
ASSESSMENT NO: 689-470-075
AFFECTS: LOT 162
J 10. THE LIEN OF SUPPLEMENTAL OR ESCAPED ASSESSMENTS OF PROPERTY TAXES, IF
ANY, MADE PURSUANT TO THE PROVISIONS OF PART 0.5, CHAPTER 3.5 OR PART
2, CHAPTER 3, ARTICLES 3 AND 4 RESPECTIVELY (COMMENCING WITH SECTION
75) OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA AS A
RESULT OF THE TRANSFER OF TITLE TO THE VESTEE NAMED IN SCHEDULE A; OR
AS A RESULT OF CHANGES IN OWNERSHIP OR NEW CONSTRUCTION OCCURRING
PRIOR TO DATE OF POLICY.
K 11. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SET FORTH IN A DOCUMENT
GRANTED TO: SOUTHERN CALIFORNIA EDISON COMPANY
PURPOSE: ELECTRIC LINES, CONSISTING OF ONE OR MORE LINES OF
STEEL TOWERS OR STEEL POLES OR BOTH AND WIRES,
CABLES, INCLUDING GROUND WIRES, BOTH OVERHEAD AND
UNDERGROUND FOR THE PURPOSE OF TRANSMITTING,
DISTRIBUTING, REGULATING AND CONTROLLING ELECTRIC
ENERGY TO BE USED
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Policy No: 31006316A - X14
Page 3
SCHEDULE B
(CONTINUED)
FOR LIGHT, HEAT, POWER, COMMUNICATION AND/OR OTHER
PURPOSES, TOGETHER WITH THE EASEMENT AND RIGHT OF
WAY FOR INGRESS AND EGRESS
RECORDED: OCTOBER 7, 1965 IN BOOK 2875, PAGE 230, OFFICIAL
RECORDS
AFFECTS: A PORTION OF SAID LAND
L RESTRICTIONS ON THE USE, BY THE OWNERS OF SAID LAND, OF THE EASEMENT
AREA AS SET OUT IN SAID DOCUMENT.
M 12. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SET FORTH IN A DOCUMENT
GRANTED TO: AMERICAN-HAWAIIAN PROPERTIES, INC., A DELAWARE
CORPORATION (NO REPRESENTATION IS MADE AS TO THE
PRESENT OWNERSHIP OF SAID EASEMENT)
PURPOSE: TO CONSTRUCT, INSTALL, USE, MAINTAIN, ALTER, ADD
TO, REPAIR, REPLACE, REMOVE AND OTHERWISE OPERATE
A COMMUNITY ANTENNA TELEVISION SYSTEM
RECORDED: JUNE 9, 1966 IN BOOK 2999, PAGE 398 OF OFFICIAL
RECORDS
AFFECTS: A PORTION OF SAID LAND
N SAID INSTRUMENT, AMONG OTHER THINGS, PROVIDES AT SUCH TIME THAT A
FINAL TRACT MAP IS RECORDED WITH RESPECT TO ALL OR ANY PORTION OF SAID
PROPERTY (SAID PROPERTY INCLUDED WITHIN ANY SUCH FINAL TRACT MAP BEING
HEREINAFTER CALLED THE "SUBDIVISION PROPERTY"), THE EXCLUSIVE EASEMENT
DESCRIBED ABOVE SHALL THEN BE RESTRICTED AND LOCATED IN THE
SUBDIVISION PROPERTY WITHIN THE BOUNDARIES OF ALL DEDICATED OR PRIVATE
STREET, AREAS DESIGNATED AS OR COVERED BY UTILITY OR PUBLIC UTILITY
LICENSES OF EASEMENTS, AND ANY OTHER PUBLIC EASEMENTS OF ANY NATURE
WHATSOEVER, AS SUCH IS SHOWN ON SAID FINAL RECORDED TRACT MAP.
O 13. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SET FORTH IN A DOCUMENT
GRANTED TO: CALLEGUAS MUNICIPAL WATER DISTRICT
PURPOSE: WATER LINES
RECORDED: SEPTEMBER 2, 1971 IN BOOK 3858, PAGE 707 OF
OFFICIAL RECORDS
AFFECTS: THE NORTHWESTERLY PORTION OF PARCEL 6
P 14. THE FOLLOWING MATTERS AFFECTING LOT 162 DISCLOSED OR CREATED BY
MAP OF TRACT 3507-3 RECORDED IN BOOK 96, PAGE 77-85:
A) EASEMENT FOR OPEN SPACE INCLUDING PROVISION PROVIDING FOR "THE
RIGHT TO PROHIBIT THE CONSTRUCTION OF ANY RESIDENTIAL BUILDINGS
OVER SAID LOT 162".
<Page>
Policy No. 31006316A - X14
Page 4
SCHEDULE B
(CONTINUED)
B) PROPOSED EASEMENT TO SOUTHERN CALIFORNIA EDISON COMPANY
C) THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE
RIGHTS OF ACCESS TO OR FROM THE STREET OR HIGHWAY ABUTTING SAID
LAND, SUCH RIGHTS HAVING BEEN RELINQUISHED BY THE MAP OF SAID
TRACT.
AFFECTS: LOT 162 ABUTTING LINDERO CANYON ROAD
Q 15. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SET FORTH IN A DOCUMENT
GRANTED TO: SOUTHERN CALIFORNIA EDISON COMPANY
PURPOSE: ELECTRICAL SYSTEMS AND COMMUNICATION SYSTEMS BOTH
OVERHEAD AND UNDERGROUND, FOR CONVEYING ELECTRIC
ENERGY
RECORDED: OCTOBER 17, 1983 AS DOCUMENT NO. 117862, OFFICIAL
RECORDS
AFFECTS: PORTION OF LOT 162
R 16. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS RESERVED IN A DOCUMENT
PURPOSE: INSTALLATION OF LANDSCAPING AND AN ENTRANCE
MONUMENT, TOGETHER WITH IRRIGATION SYSTEM AND
APPURTENANT EQUIPMENT AND FACILITIES, INCLUDING
THE RIGHT OF INGRESS THERETO AND EGRESS THEREFROM
TO MAINTAIN, REPAIR AND REPLACE SUCH LANDSCAPING,
IRRIGATION SYSTEM, ENTRANCE MONUMENT AND
APPURTENANT EQUIPMENT AND FACILITIES
RECORDED: SEPTEMBER 4, 1987, AS DOCUMENT NO. 87-144083,
OFFICIAL RECORDS
AFFECTS: A STRIP OF LAND 20 FEET WIDE OVER A PORTION OF
PARCELS 3 AND 4 AND THAT PORTION OF LOT 162
DESIGNATED ON THE MAP OF SAID LOT AS "PROPOSED
EDISON EASEMENT"
S 17. COVENANTS, CONDITIONS AND RESTRICTIONS (BUT OMITTING THEREFROM ANY
COVENANT OR RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP,
FAMILIAL STATUS, OR NATIONAL ORIGIN, IF ANY, UNLESS AND ONLY TO THE
EXTENT THAT SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECTION 3607
OF THE UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT
DISCRIMINATE AGAINST HANDICAPPED PERSONS) AS SET FORTH IN THE DOCUMENT
RECORDED: SEPTEMBER 4, 1987 AS DOCUMENT NO. 87-144083,
OFFICIAL RECORDS
T AMONG OTHER THINGS, SAID DOCUMENT PROVIDES:
AN EASEMENT OVER THE PORTION OF SAID LAND AND FOR THE PURPOSES THEREIN
SHOWN, AND RIGHTS INCIDENTAL THERETO
<Page>
Policy No. 31006316A - X14
Page 5
SCHEDULE B
(CONTINUED)
FOR: IN THE EVENT LOTS 161 AND 162 OR ANY PORTION
THEREOF ARE INCLUDED WITHIN A LANDSCAPE AND
RELATED IMPROVEMENTS DISTRICT WHEREBY THE CITY OF
THOUSAND OAKS ASSUMES RESPONSIBILITY THEN SUCH
LOTS, PORTIONS THEREOF OR EASEMENTS THEREON SHALL
BE CONVEYED TO THE CITY.
AFFECTS: LOT 162
U 18. THE MATTERS CONTAINED IN A COVENANT AND AGREEMENT DATED OCTOBER 17,
1989, EXECUTED BY AND BETWEEN EL PASEO ASSOCIATES, A CALIFORNIA
GENERAL PARTNERSHIP AND THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A
NEW JERSEY CORPORATION AND RECORDED DECEMBER 8, 1989 AS DOCUMENT NO.
89-195379 OF OFFICIAL RECORDS.
V 19. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SHOWN OR AS OFFERED FOR DEDICATION ON THE RECORDED MAP SHOWN BELOW.
MAP OF: PARCEL MAP LD-591
RECORDED: FILED IN BOOK 50, PAGES 1 AND 2 OF PARCEL MAPS
EASEMENT
PURPOSE: PROPOSED COMMON DRIVEWAY
AFFECTS: PORTIONS OF PARCELS 3, 4, 5 & 6
W 20. THE PROVISIONS CONTAINED ON THE DEDICATION SHEET OF THE RECORDED MAP
SHOWN BELOW:
MAP OF: LD-591 FILED IN BOOK 50, PAGES 1 AND 2 OF PARCEL
MAPS
PROVISIONS: "THIS MAP IS SUBJECT TO CONDITIONS, ORDINANCES,
REGULATIONS, STANDARDS AND POLICIES WHICH HAVE
BEEN IMPOSED AS A CONDITION OF APPROVAL OF THE
MAP. PLEASE REFER TO CITY OF THOUSAND OAKS
PLANNING COMMISSION RESOLUTION NO. 36-89."
X 21. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF
ACCESS TO OR FROM THE STREET OR HIGHWAY ABUTTING SAID LAND, SUCH
RIGHTS HAVING BEEN RELINQUISHED BY THE MAP OF SAID TRACT.
AFFECTS: THE SOUTHERLY AND SOUTHWESTERLY LINE OF PARCELS 1,
2, 5 AND 6 ABUTTING LAKEVIEW CANYON ROAD EXCEPTING
THEREFROM STRIPS "A" AND "B". THE WESTERLY AND
NORTHWESTERLY LINE OF PARCEL 6 ABUTTING FALLING
STAR AVENUE.
THE NORTHERLY LINE OF PARCELS 3, 4 AND 6 ABUTTING
KANAN ROAD EXCEPTING THEREFROM STRIP "C".
Y 22. COVENANTS, CONDITIONS AND RESTRICTIONS (BUT OMITTING THEREFROM ANY
COVENANT
<Page>
Policy No. 31006316A - X14
Page 6
SCHEDULE B
(CONTINUED)
OR RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL
STATUS, OR NATIONAL ORIGIN, IF ANY, UNLESS AND ONLY TO THE EXTENT THAT
SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECTION 3607 OF THE
UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT
DISCRIMINATE AGAINST HANDICAPPED PERSONS) AS SET FORTH IN THE DOCUMENT
RECORDED: MAY 21, 1990 AS DOCUMENT NO. 90-075999 OF OFFICIAL
RECORDS
Z SAID COVENANTS, CONDITIONS AND RESTRICTIONS PROVIDE THAT A VIOLATION
THEREOF SHALL NOT DEFEAT THE LIEN OF ANY MORTGAGE OR DEED OF TRUST
MADE IN GOOD FAITH AND FOR VALUE.
AA AMONG OTHER THINGS, SAID DOCUMENT PROVIDES:
PAYMENT BY OWNERS AND TENANTS OF PARCELS IN THE PROJECT THEIR PRO RATA
SHARE OF THE COMMON AREA EXPENSES AT THEREIN SET FORTH. SAID DOCUMENT
ALSO PROVIDES THAT IF ANY OWNER FAILS TO PAY ANY PROPERTY TAX OR
ASSESSMENT AND IF THE FAILURE TO MAKE SUCH PAYMENT WOULD MATERIALLY OR
ADVERSELY AFFECT ANY OTHER OWNERS PARCEL OR RIGHTS IN THE COMMON AREA,
SUCH OWNER SHALL HAVE THE RIGHT TO APY SUCH TAX LIEN AND SHALL HAVE A
LIEN ON THE NON-PAYING OWNERS PARCEL FOR THE AMOUNT PAID AS THEREIN
SET FORTH. ANY SUCH LIEN SHALL BE SUBORDINATE TO AND SHALL IN NO WAY
IMPAIR THE LIEN OR CHARGE OF ANY BONA FIDE FIRST MORTGAGE OR FIRST
DEED OF TRUST UPON THE SAME OR ANY PART THEREOF AT ANY TIME GIVEN OR
MADE. SAID DOCUMENT ALSO PROVIDES FOR VARIOUS EASEMENTS AS THEREIN SET
FORTH.
AB 23. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO
AS SET FORTH IN A DOCUMENT
GRANTED TO: CALIFORNIA WATER SERVICE COMPANY
PURPOSE: PIPELINES, INGRESS AND EGRESS
RECORDED: JANUARY 27, 1992 AS DOCUMENT NO. 92-013200,
OFFICIAL RECORDS
AFFECTS: A PORTION OF PARCELS 4, 5 AND 6
AC 24. INTENTIONALLY OMITTED.
AD 25. INTENTIONALLY OMITTED.
AE 26. INTENTIONALLY OMITTED.
AF 27. EASEMENT IN FAVOR OF THE WORLD SAVINGS BANK, FSB RECORDED
FEBRUARY 26, 1996 AS DOCUMENT NO. 96-021872.
AG 28. INTENTIONALLY OMITTED.
AH 29. INTENTIONALLY OMITTED.
AI 30. INTENTIONALLY OMITTED.
<Page>
Policy No. 31006316A - X14
Page 7
SCHEDULE B
(CONTINUED)
AJ 31. INTENTIONALLY OMITTED.
AK 32. INTENTIONALLY OMITTED.
AL 33. INTENTIONALLY OMITTED.
AM 34. INTENTIONALLY OMITTED.
AN 35. INTENTIONALLY OMITTED.
AO 36. INTENTIONALLY OMITTED.
AP 37. INTENTIONALLY OMITTED.
AQ 38. INTENTIONALLY OMITTED.
AR 39. INTENTIONALLY OMITTED.
AS 40. INTENTIONALLY OMITTED.
AT 41. INTENTIONALLY OMITTED.
AU 42. INTENTIONALLY OMITTED.
AV 43. INTENTIONALLY OMITTED.
AW 44. WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT SHOWN BY THE
PUBLIC RECORDS.
AX 45. ANY EASEMENTS NOT DISCLOSED BY THOSE PUBLIC RECORDS WHICH IMPART
CONSTRUCTIVE NOTICE AND WHICH ARE NOT VISIBLE AND APPARENT FROM AN
INSPECTION OF THE SURFACE OF SAID LAND.
AY 46. INTENTIONALLY OMITTED.
AZ 47. INTENTIONALLY OMITTED.
BA 48. ANY RIGHTS, INTERESTS, OR CLAIMS WHICH MAY EXIST OR ARISE BY REASON OF
THE FOLLOWING FACTS SHOWN ON A SURVEY PLAT ENTITLED "JOB NO. 03-848B",
DATED DECEMBER 15, 2003 PREPARED BY CHRIS NELSON & ASSOCIATES:
A) PLANTERS LOCATED ALONG THE NORTHEASTERLY BOUNDARY OF
SUBJECT PROPERTY EXTEND ONTO THE PUBLIC RIGHT-OF-WAY FOR KANAN
DUME ROAD.
B) ELECTRIC UTILITIES, FIRE HYDRANTS AND MANHOLES ARE SITUATED IN
VARIOUS LOCATIONS ON SUBJECT PROPERTY.
BB 49. AN UNRECORDED LEASE WITH CERTAIN TERMS, COVENANTS, CONDITIONS, AND
PROVISIONS AS SET FORTH THEREIN, AS DISCLOSED BY INSPECTION AND/OR
INVESTIGATION.
<Page>
Policy No. 31006316A - X14
Page 8
SCHEDULE B
(CONTINUED)
LESSEE: A) RUSTICO RESTAURANT
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A1
B) SUSHI TEI
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A1B
C) WE FRAME IT TOO
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A2
D) KAYS NAILS
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A3
E) STATE FARM
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A4
F) TAE KWON DO
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A5
G) TREASURED MEMORIES
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A7
H) TOTAL BODY FITNESS
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A8
I) SETA'S ALTERATIONS
AFFECTS: 1125 LINDERO CANYON ROAD, SUITE A11
NOTE: THE ABOVE A - I AFFECT PARCEL 5
J) BANK OF AMERICA
AFFECTS: 1155 LINDERO CANYON ROAD
K) PRUDENTIAL
AFFECTS: 1155 LINDERO CANYON ROAD
NOTE: THE ABOVE J THROUGH K AFFECTS PARCEL 3
L) MALIBU GYMNASTICS
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE C1
M) HALLMARK
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE C2
N) DANCE TRENDS
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D1
O) CLEANERS
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D2
P) COOKIES BY DESIGN
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D3
Q) WALTON PORTRAITS
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D4
R) SUDORE PILATES
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D7
S) ILENE'S BOUTIQUE
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D8
T) SAVVY KIDS
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D10
U) THAI RANCH
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D11
V) LAMPOST PIZZA
AFFECTS: 1145 LINDERO CANYON ROAD, SUITE D12
<Page>
Policy No. 31006316A - X14
Page 9
SCHEDULE B
(CONTINUED)
NOTE: THE ABOVE L THROUGH V AFFECT PARCEL 6
W) SAVVY SALON & SPA, SAVVY KIDS
AFFECTS: 1165 LINDERO CANYON ROAD
NOTE: THE ABOVE W AFFECTS PARCEL 4
AUTHORIZED SIGNATORY
--------------------------------------------
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage which
the insured shall sustain by reason of the failure of the land to be the same as
that delineated on the plat of a survey made by CHRIS NELSON & ASSOCIATES
on DECEMBER 15, 2003 , designated Job No. 03-848B , a copy of
which is attached hereto and made a part hereof.
This endorsement is made a part of the policy and is subject to all of
the terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the
effective date of the policy and any prior endorsements, nor does it increase
the face amount thereof.
Dated:
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
Authorized Signatory
CLTA Form 116.1
ALTA or CLTA - Owner
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss which the insured
shall sustain by reason of the failure of the land described in Schedule A to
constitute a lawfully created parcel according to the Subdivision Map Act
(Section 66410, et seq., of the California Government Code) and local ordinances
adopted pursuant thereto.
This endorsement is made a part of the policy and is subject to all of
the terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the
effective date of the policy and any prior endorsements, nor does it increase
the face amount thereof.
Dated:-
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
--------------------------
CLTA Form 116.7
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage which the insured
shall sustain by reason of any inaccuracies in the following assurance:
Water, gas, electric, sanitary sewer and telephone exist either over, under or
upon public rights of way directly adjacent to the land described in Schedule A,
or over, under, upon an easement (not terminable by the grantor thereof or by
his heirs, personal representatives, successors or assigns) for the benefit of
said land that connects to public rights of way.
This endorsement is made a part of the policy and is subject to all of the terms
and provisions thereof and of any prior endorsements thereto. Except to the
extent expressly stated it neither modifies any of the terms and provisions of
the policy and any prior endorsements, nor does it extend the effective date of
the policy and any prior endorsements, nor does it increase the face amount
thereof.
Dated: -
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
------------------------
Authorized Signatory
CTI ENDORSEMENT FORM
ALTA - Lender
(Special Utilities Endorsement)
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage which the
insured shall sustain by reason of the failure of the land described in
Schedule A to be contiguous parcels.
This endorsement is made a part of the policy and is subject to all of the
terms and provisions thereof and of any prior endorsements thereto. Except to
the extent expressly stated, it neither modifies any of the terms and provisions
of the policy and any prior endorsements, nor does it extend the effective date
of the policy and any prior endorsements, nor does it increase the face amount
thereof.
Dated: -
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
Authorized Signatory
CLTA Form 116.4
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Policy is hereby amended by deleting paragraph(s) 4
OF EXCLUSIONS FROM COVERAGE
This endorsement is made a part of the policy and is subject to all of the terms
and provisions thereof and of any prior endorsements thereto. Except to the
extent expressly stated, it neither modifies any of the terms and provisions of
the policy and any prior endorsements, nor does it extend the effective date of
the policy and any prior endorsements, nor does it increase the face amount
thereof.
Dated:
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
Authorized Signatory
CLTA Form 110.1 (Rev.9-10-93)
ALTA or CLTA - Owner or Lender
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A - X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Policy is hereby amended by deleting PARAGRAPH 14 OF CONDITIONS
AND STIPULATIONS
This endorsement is made a part of the policy and is subject to all of
the terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the
effective date of the policy and any prior endorsements, nor does it increase
the face amount thereof.
Dated:
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
----------------------------------
Authorized Signatory
CLTA Form 110.1(modified)
ALTA or CLTA - Owner or Lender
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The insurance afforded by this endorsement is only effective if the land is
used or is to be used primarily for Commercial purposes.
The Company insures the Insured against loss or damage sustained by reason
of:
(a) any environmental protection lien which, at Date of Policy, is
recorded in those records established under state statutes at Date of Policy for
the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without knowledge, or filed in the records
of the clerk of the United States district court for the district in which the
land is located, except as set forth in Schedule B; or
(b) any environmental protection lien provided for by any state
statute in effect at Date of Policy, except environmental protection liens
provided for by the following state statutes:
NONE
This endorsement is made a part of the policy and is subject to all of the
terms and provisions thereof and of any prior endorsements thereto. Except to
the extent expressly stated, it neither modifies any of the terms and provisions
of the policy and any prior endorsements, nor does it extend the effective date
of the policy and any prior endorsements, nor does it increase the face amount
thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
--------------------------------
CLTA Form 110.9
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage by
reason of any inaccuracy in the following assurance: The land referred to as
Parcel ~ in Schedule A herein is completely covered by tax identification
numbers:
<Table>
<Caption>
IDENTIFICATION NO: AFFECTS:
689-470-035 PARCEL 3
689-470-045 PARCEL 4
689-470-055 PARCEL 5
689-470-065 PARCEL 6
689-470-075 LOT 162
</Table>
The above mentioned tax identification numbers do not include any
other land, the company hereby insures the Insured against loss which
said insured shall sustain in the event said assurances herein shall
prove to be incorrect.
This endorsement is made a part of policy and is subject to all of the
terms and provisions thereof and of any prior endorsements thereto.
Except to the extent expressly stated, it neither modifies any of the
terms and provisions of the policy and any prior endorsements, nor
does it extend the effective date of the policy and any prior
endorsements, nor does it increase the face amount thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
TAX PARCEL ENDORSEMENT
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage sustained by
reason of:
1. The existence at Date of Policy of any of the following unless Schedule B
expressly excepts the same:
(a) Present violations on the land of any enforceable covenants, conditions or
restrictions, and any existing improvements on the land which violate any
building setback lines shown on a plat of subdivision recorded or filed in the
public records.
(b) Any instrument referred to in Schedule B as containing covenants, conditions
or restrictions on the land, which, in addition, (i) establishes an easement on
the land; (ii) provides for an option to purchase, a right of first refusal or
the prior approval of a future purchaser or occupant; (iii) provides a right of
reentry, possibility of reverter of right of forfeiture because of violations on
the land of any enforceable covenants, conditions or restrictions.
(c) Any encroachment of existing improvements located on the land onto adjoining
land, or any encroachment onto the land of existing improvements located on
adjoining land.
(d) Any encroachment of existing improvements located on the land onto that
portion of the land subject to any easement excepted in Schedule B.
(e) Any notices of violation of covenants, conditions and restrictions relating
to environmental protection recorded or filed in the public records.
2. Damage to existing buildings:
(a) which are located on or encroach upon that portion of the land subject to
any easement excepted in Schedule B, which damage results from the exercise of
the right to maintain the easement for the purpose for which it was granted or
reserved;
(b) resulting from the future exercise of any right exisiting the Date of Policy
to use the surface of the land for the extraction or development of minerals
excepted from the description of the land or excepted in Schedule B.
3. Any final court order or judgment requiring the removal from any land
adjoining the land of any encroachment, other than fences, landscaping or
driveways, excepted in Schedule B.
4. Any final court order or judgment denying the right to maintain any existing
improvements on the land because of any violation of covenants, conditions or
restrictions or building setback lines shown on a plat of subdivision recorded
or filed in the public records.
Wherever in this endorsement the words "covenants, conditions or restrictions"
appear,
CONTINUED
<Page>
ENDORSEMENT CONTINUED
PAGE 2
they shall not be deemed to refer to or include the terms, covenants, conditions
or limitations contained in an instrument creating a lease.
As used in paragraphs 1(a), the words "covenants, conditions or restrictions"
shall not be deemed to refer to or include any covenants, conditions or
restrictions relating to environmental protection.
This endorsement is made a part of the policy and is subject to all of the terms
and provisions thereof and any prior endorsements thereto. Except to the extent
expressly stated, it neither modifies any of the terms and provisions of the
policy and any prior endorsements, nor does it extend the effective date of the
policy and any prior endorsements, nor does it increase the face amount thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures the insured against loss or damage which
the insured shall sustain by reason of the failure of the land to access and
abut upon a physically open street known as
KANAN ROAD, LAKEVIEW CANYON ROAD AND LINDERO CANYON ROAD
This endorsement is made a part of the policy and is subject to all of
the terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the
effective date of the policy and any prior endorsements, nor does in increase
the face amount thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
CLTA Form 103.7
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
General exception numbers 1, 2, 3, 4 and 5 of Schedule B of this
Policy are hereby deleted.
This endorsement is made a part of the policy and is subject to all of
the terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend the
effective date of the policy and any prior endorsements, nor does it increase
the face amount thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
-------------------------------
POLICY MODIFICATION ENDORSEMENT 4
<Page>
ENDORSEMENT
Attached to and forming a part of
POLICY NO. 31006316A X14
ISSUED BY
CHICAGO TITLE INSURANCE COMPANY
1. The Company insures the Insured against loss or damage sustained by reason
of any incorrectness in the assurance that, at Date of Policy:
(a) According to applicable zoning ordinances and amendments thereto,
the land is not classified zone
C2
(b) The following use or uses are allowed under that classification:
SHOPPING CENTER OR MAJOR MALL
and there shall be no liability under this paragraph 1(b) if the use
or uses are not allowed as the result of any lack of compliance with
any conditions, restrictions, or requirements contained in the
zoning ordinances and amendments thereto mentioned above, including
but not limited to secure necessary consents or authorizations as a
prerequisite to the use or uses:
2. The Company further insures the Insured against loss or damage arising
from a final decree of a court of competent jurisdiction
(a) prohibiting the use of the land, with any structure presently
located thereon, as specified in Paragraph 1(b); or
(b) requiring the removal or alteration of the structure on the basis
that, at Date of Policy, the ordinances and amendments thereto have
been violated with respect to any of the following matters:
(i) Area, width or depth of the land as a building site for the
structure;
(ii) Floor space area of the structure;
(iii) Setback of the structure from the property lines of the land,
or
(iv) Height of the structure.
(v) Number of parking spaces.
(vi) Location of Loading Docks.
There shall be no liability under this endorsement based on:
(a) The invalidity of the ordinances and amendments thereto mentioned until
after a final decree of a court of competent jurisdiction adjudicating the
invalidity, the effects of which is to prohibit the use or uses.
CONTINUED
<Page>
ENDORSEMENT CONTINUED
PAGE 2
(b) The refusal of any person to purchase, lease or lend money on the estate
or interest by this policy.
This endorsement is made a part of the policy and is subject to all of the
terms and provisions thereof and of any prior endorsements thereto. Except
to the extent expressly stated, it neither modifies any of the terms and
provisions of the policy and any prior endorsements, nor does it extend
the effective date of the policy and any prior endorsements, nor does it
increase the face amount thereof.
Dated: ~
CHICAGO TITLE INSURANCE COMPANY
By: SAMPLE FORM
----------------------------------------
CLTA Form 123.2
<Page>
Exhibit B
January ______, 2004
KPMG LLP
KPMG Plaza
303 East Wacker Drive
Chicago, IL 60601
Ladies and Gentlemen:
We, as the owner and Seller (herein so called) of the North Ranch Pavilions (the
"Property") are confirming our understanding that your audit of the Historical
Summary of Gross Income and Direct Operating Expenses ("Historical Summary") of
the North Ranch Pavilions for the years ended DECEMBER 31, 2002 AND DECEMBER 31,
2003, during our period of ownership will be made for the purpose of expressing
an opinion to your client, Inland Western Thousand Oaks, L.L.C., as to whether
the Historical Summary presents fairly, in all material respects, the gross
income and direct operating expenses in conformity with the CASH OR ACCRUAL
basis of accounting. In connection with your audit, we confirm, to our actual
knowledge without additional investigation or inquiry, the following
representations are made as to the audit:
1. We will make available to you:
a) All financial records and related data for the Property reasonably
requested by you in our possession.
2. There have been no:
a) Instances of fraud involving any member of management or employees who
have significant roles in internal control, nor are we aware of
instances of fraud by others.
b) Communications from regulatory agencies concerning non-compliance
with, or deficiencies in, financial reporting practices received by
the undersigned that could reasonably be expected to have a material
effect on the Historical Summary.
c) Violations or possible violations of laws or regulations for which we
have received actual notices, the effects of which should be
considered for disclosure in the Historical Summary or as a basis for
recording the loss contingency, nor are we aware of any violations of
laws or regulations that to our actual knowledge would have an adverse
impact upon the materials delivered to you.
d) Nor are we aware of any entries in the minutes of any applicable board
or summary of recent meetings for which minutes have not yet been
prepared which conflict with the financial records provided or the
statements made herein.
3. There are no:
a) Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
b) Events that have occurred subsequent to the balance sheet date and
through the date of this latter that would require adjustment to or
disclosure in the Historical Summary.
c) Uninsured claims, asserted claims, material liabilities or loss
contingencies that we believe should have been recorded in the
financial statements that have not been recorded.
<Page>
4. We have received no notices indicating that the Property has failed to
comply with all aspects of the contractual agreements that would have a
material effect on the Historical Summary in the event of noncompliance.
5. All income from operating leases is included as gross income in the
Historical Summary. No other forms of revenue are included in the
Historical Summary.
6. Terms such as "to our knowledge," "to the best of our knowledge", "to our
actual knowledge" or like phrases mean the actual present and conscious
awareness or knowledge of Michael Wenaas ("Seller's Representative"),
without any duty of inquiry or investigation; provided that so qualifying
Seller's knowledge shall in no event give rise to any personal liability on
the part of Seller's Representative, or any of them, or any other officer
or employee of Seller, on account of any breach of any representation or
warranty made by Seller herein. Said terms do not include constructive
knowledge, imputed knowledge, or knowledge Seller or such persons do not
have but could have obtained through further investigation or inquiry.
Further, we confirm that to our knowledge the financial records do not fail to
disclose any material factors for the Historical Summary.
Very Truly Yours,
CH REALTY II/NORTH RANCH, L.P.,
a Delaware limited partnership
By: CH Realty II/Retail GP, L.L.C.,
a Delaware limited liability company,
its General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability company,
its Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<Page>
Exhibit C
NORTH RANCH PAVILIONS
SALE TO INLAND REAL ESTATE ACQUISITIONS, INC.
RENT PRORATIONS
JANUARY 15, 2004 CLOSE
<Table>
<Caption>
Seller
Square Additional Rent Prorated Buyer Prorated
Feet Base Rent (CAM/TAX/INS) Other Total Rent* Share Share
Andi's Hallmark 3,740 $ 5,610.00 $ 1,581.00 $ 7,191.00 $ 3,247.55 $ 3,943.45
Bank of America, N.A. 4,500 $ 14,416.26 $ 1,877.00 $ 16,293.26 $ 7,358.25 $ 8,935.01
Clubhouse Cleaners 1,505 $ 3,645.33 $ 732.00 $ 4,377.33 $ 1,976.86 $ 2,400.47
Cookies by Design 1,353 $ 2,655.49 $ 669.00 $ 3,324.49 $ 1,501.36 $ 1,823.11
Dance Trends 2,338 $ 3,343.34 $ 1,099.00 $ 4,442.34 $ 2,006.22 $ 2,436.12
Exotic Thai, Inc. 1,746 $ 833.00 $ 833.00 $ 376.19 $ 456.81
Ilene's Boutique 2,105 $ 4,299.20 $ 1,040.00 $ 5,339.20 $ 2,411.25 $ 2,927.95
Kay's Nails 1,028 $ 2,014.88 $ 506.00 $ 2,522.88 $ 1,139.37 $ 1,383.51
Lamppost Pizza 3,600 $ 7,512.10 $ 1,707.00 $ 9,219.10 $ 4,163.46 $ 5,055.64
Malibu Gymnastics, Inc. 3,040 $ 4,560.00 $ 1,478.00 $ 6,038.00 $ 2,726.84 $ 3,311.16
North Ranch Denistry 1,306 $ 3,199.70 $ 635.00 $ 3,834.70 $ 1,731.60 $ 2,102.90
Postal Club 1,086 $ 2,019.96 $ 522.00 $ 2,541.96 $ 1,147.98 $ 1,393.98
Rustico Food, Inc. 3,495 $ 7,638.48 $ 1,680.00 $ 9,318.48 $ 4,208.35 $ 5,110.13
Savvy Enterprises, LLC 6,500 $ 6,344.39 $ 3,160.00 $ 9,504.39 $ 4,292.31 $ 5,212.08
Seta's Shoes 1,086 $ 1.629.00 $ ?2?.00 $ 2,157.00 $ 974.13 $ 1,182.87
State Farm 1,023 $ 1,843.96 $ 52?.00 $ 2,371.96 $ 1,071.21 $ 1,300.75
Sudore Pilates 1,346 $ 2,051.56 $ 696.00 $ 2,747.56 $ 523.34 $ 2,224.22
Sushi-Tei 1,725 $ 4,264.20 $ 891.00 $ 5,155.20 $ 2,328.15 $ 2,?27.05
Tae Kwon Do Academy, Inc. 1,512 $ 2,803.25 $ 781.00 $ 3,584.25 $ 1,61?.69 $ 1,965.56
The Prudential California Realty 3,379 $ 7,941.00 $ 1,410.00 $ 9,351.00 $ 4,223.03 $ 5,127.97
The Vons Companies, Inc. 50,970 $ 7,337.00 $ 7,337.00 $ 3,313.4? $ 4,023.52
Total Body Fitness, Inc. 1,998 $ 3,086.91 $ 1,032.00 $ 4,118.91 $ 1,860.15 $ 2,258.76
Treasured Memories 3,691 $ 3,732.16 $ 1,795.00 $ 5,527.16 $ 2,496.14 $ 3,031.02
Two for One Photo 1,066 $ 1,926.10 $ 518.00 $ 2,444.10 $ 1,103.79 $ 1,340.31
Walton's Portrait Studio 1,300 $ 2.413.55 $ 669.00 $ 3,082.55 $ 1,392.12 $ 1,690.43
We Frame It Too 1,526 $ 2,884.14 $ 789.00 $ 3,673.14 $ 1,658.84 $ 2,014.30
World Savings Bank 6,500 $ 936.00 $ 936.00 $ 422.71 $ 513.29
$ 101,834.96 $ 35,431.00 $ - $ 137,265.96 $ 61,273.59 $ 75,992.37
CREDIT TO BUYER $ 75,992.37
</Table>
<Page>
EXHIBIT "D"
ADDITIONAL WORK
North Ranch
Savvy Salon
Imperial Paving installed stairs with handrails at the main entrance to Savvy
Salon.
Day Star Builders demolished two existing planters and installed two new
planters (with irrigation and plant material) per the original Conditional Use
Permit drawings. In addition, one parking lot light standard was relocated to
its original location. The City waived relocating the second parking lot light
standard s it was only moved approx. two feet from its original location.
<Page>
PURCHASE AND SALE AGREEMENT
BETWEEN
CH REALTY II/NORTH RANCH, L.P.
AS SELLER
AND
INLAND REAL ESTATE ACQUISITIONS, INC.
AS PURCHASER
DATED DECEMBER 17, 2003
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
Page No.
--------
ARTICLE 1 BASIC INFORMATION......................................................1
1.1 Certain Basic Terms...........................................................1
1.2 Closing Costs.................................................................3
1.3 Notice Addresses:.............................................................3
ARTICLE 2 PROPERTY...............................................................4
2.1 Property......................................................................4
ARTICLE 3 EARNEST MONEY..........................................................5
3.1 Deposit and Investment of Earnest Money.......................................5
3.2 Independent Consideration.....................................................5
3.3 Form; Failure to Deposit......................................................5
3.4 Disposition of Earnest Money..................................................6
ARTICLE 4 DUE DILIGENCE..........................................................6
4.1 Due Diligence Materials To Be Delivered.......................................6
4.2 Due Diligence Materials To Be Made Available..................................7
4.3 Physical Due Diligence........................................................7
4.4 Due Diligence/Termination Right...............................................8
4.5 Return of Documents and Reports...............................................8
4.6 Service Contracts.............................................................8
4.7 Proprietary Information; Confidentiality......................................9
4.8 No Representation or Warranty by Seller.......................................9
4.9 Purchaser's Responsibilities..................................................9
4.10 Purchaser's Agreement to Indemnify...........................................10
4.11 Environmental Studies; Seller's Right to Terminate...........................10
ARTICLE 5 TITLE AND SURVEY......................................................10
5.1 Title Commitment.............................................................10
5.2 New or Updated Survey........................................................11
5.3 Title Review.................................................................11
5.4 Delivery of Title Policy at Closing..........................................11
ARTICLE 6 OPERATIONS AND RISK OF LOSS...........................................11
6.1 Ongoing Operations...........................................................11
6.2 Damage.......................................................................12
6.3 Condemnation.................................................................13
ARTICLE 7 CLOSING...............................................................13
7.1 Closing......................................................................13
7.2 Conditions to Parties' Obligation to Close...................................13
7.3 Seller's Deliveries in Escrow................................................14
7.4 Purchaser's Deliveries in Escrow.............................................16
</Table>
i
<Page>
TABLE OF CONTENTS
(CONTINUED)
<Table>
<Caption>
Page No.
--------
7.5 Closing Statements...........................................................16
7.6 Purchase Price...............................................................16
7.7 Possession...................................................................16
7.8 Delivery of Books and Records................................................17
7.9 Notice to Tenants............................................................17
ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS.....................................17
8.1 Prorations...................................................................17
8.2 Leasing Costs................................................................19
8.3 Closing Costs................................................................19
8.4 Final Adjustment After Closing...............................................20
8.5 Tenant Deposits..............................................................20
8.6 Commissions..................................................................20
8.7 PCR/Property Repairs Credit..................................................20
ARTICLE 9 REPRESENTATIONS AND WARRANTIES........................................20
9.1 Seller's Representations and Warranties......................................20
9.2 Purchaser's Representations and Warranties...................................21
9.3 Survival of Representations and Warranties...................................22
ARTICLE 10 DEFAULT AND REMEDIES..................................................23
10.1 Seller's Remedies............................................................23
10.2 Purchaser's Remedies.........................................................24
10.3 Attorneys' Fees..............................................................24
10.4 Other Expenses...............................................................24
ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY....................................25
11.1 Disclaimers By Seller........................................................25
11.2 Sale "As Is, Where Is".......................................................25
11.3 Seller Released from Liability...............................................26
11.4 "Hazardous Materials" Defined................................................27
11.5 Indemnity....................................................................27
11.6 Survival.....................................................................27
ARTICLE 12 MISCELLANEOUS.........................................................27
12.1 Parties Bound; Assignment....................................................27
12.2 Headings.....................................................................27
12.3 Invalidity and Waiver........................................................28
12.4 Governing Law................................................................28
12.5 Survival.....................................................................28
12.6 Entirety and Amendments......................................................28
12.7 Time.........................................................................28
12.8 Confidentiality..............................................................28
12.9 No Electronic Transactions...................................................28
</Table>
ii
<Page>
TABLE OF CONTENTS
(CONTINUED)
<Table>
<Caption>
Page No.
--------
12.10 Notices......................................................................28
12.11 Construction.................................................................29
12.12 Calculation of Time Periods..................................................29
12.13 Execution in Counterparts....................................................29
12.14 No Recordation...............................................................29
12.15 Further Assurances...........................................................30
12.16 Discharge of Obligations.....................................................30
12.17 ERISA........................................................................30
12.18 No Third Party Beneficiary...................................................30
12.19 Reporting Person.............................................................30
12.20 Mandatory Arbitration........................................................30
12.21 Like-Kind Exchange...........................................................30
12.22 Post-Closing Audit...........................................................30
</Table>
LIST OF DEFINED TERMS
<Table>
<Caption>
Page No.
- --------
Additional Property Information...........................................................7
Agreement.................................................................................1
Assignment...............................................................................14
Broker....................................................................................2
Casualty Notice..........................................................................12
CERCLA...................................................................................26
Closing..................................................................................13
Closing Date..............................................................................2
Code.....................................................................................22
Deed.....................................................................................14
Due Diligence Termination Notice..........................................................8
Earnest Money.............................................................................1
Effective Date............................................................................2
ERISA................................................................................16, 22
Escrow Agent..............................................................................2
Exchange.................................................................................30
Hazardous Materials......................................................................27
Improvements..............................................................................4
Independent Consideration.................................................................5
Initial Earnest Money.....................................................................1
Inspection Period.........................................................................2
</Table>
iii
<Page>
LIST OF DEFINED TERMS
(CONTINUED)
<Table>
<Caption>
Page No.
--------
Intangible Personal Property..............................................................5
Land......................................................................................4
Lease Files...............................................................................7
Leases....................................................................................4
Leasing Costs............................................................................19
License Agreements........................................................................5
Material Damage..........................................................................13
Materially Damaged.......................................................................13
OFAC.....................................................................................22
Operating Statements......................................................................6
Permitted Exceptions.....................................................................11
Permitted Outside Parties.................................................................9
Plan.....................................................................................22
Property..................................................................................4
Property Documents........................................................................8
Property Information......................................................................6
Property Information Delivery Date........................................................2
Purchase Price............................................................................1
Purchaser.................................................................................1
Real Property.............................................................................4
Rent Roll.................................................................................6
Report....................................................................................8
Reports...................................................................................8
REQUIRED ENDORSEMENTS....................................................................11
Seller....................................................................................1
Seller's Representatives.................................................................22
Service Contracts.........................................................................5
Survey...................................................................................11
Survival Period..........................................................................22
Tangible Personal Property................................................................4
Taxes....................................................................................17
Tenant Receivables.......................................................................17
Title and Survey Review Period............................................................2
Title Commitment.........................................................................10
Title Commitment Delivery Date............................................................2
Title Company.............................................................................1
Title Policy.............................................................................11
to Seller's knowledge....................................................................22
to the best of Seller's knowledge........................................................22
Unbilled Tenant Receivables..............................................................18
Uncollected Delinquent Tenant Receivables................................................18
</Table>
iv
<Page>
PURCHASE AND SALE AGREEMENT
NORTH RANCH PAVILIONS, THOUSAND OAKS, CALIFORNIA
This Purchase and Sale Agreement (this "AGREEMENT") is made and entered
into by and between Purchaser and Seller.
RECITALS
A. Defined terms are indicated by initial capital letters. Defined
terms shall have the meaning set forth herein, whether or not such terms are
used before or after the definitions are set forth.
B. Purchaser desires to purchase the Property and Seller desires to
sell the Property, all upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual terms, provisions,
covenants and agreements set forth herein, as well as the sums to be paid by
Purchaser to Seller, and for other good and valuable consideration, the receipt
and sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:
ARTICLE 1
BASIC INFORMATION
1.1 CERTAIN BASIC TERMS. The following defined terms shall have the
meanings set forth below:
1.1.1 SELLER: CH Realty II/North Ranch, L.P.,
a Delaware limited partnership
1.1.2 PURCHASER: Inland Real Estate Acquisitions, Inc.,
an Illinois corporation
1.1.3 PURCHASE PRICE: $18,468,000.00
1.1.4 EARNEST MONEY: $300,000.00 [(THE "INITIAL EARNEST
MONEY")], including interest thereon,
to be deposited in accordance with
SECTION 3.1 below.
1.1.5 TITLE COMPANY: Chicago Title Insurance Company
2001 Bryan Street
Suite 1700
Dallas, Texas 75201-3005
Attn: Joycelyn Armstrong
Telephone: (214)965-1668
Facsimile: (214)965-1625
Email: armstrongio@ctt.com
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1.1.6 ESCROW AGENT: Chicago Title Insurance Company
2001 Bryan Street
Suite 1700
Dallas, Texas 75201-3005
Attn: Joycelyn Armstrong
Telephone: (214)965-1668
Facsimile: (214)965-1625
Email: armstrongjo@ctt.com
1.1.7 BROKER: CB Richard Ellis, Inc.
3501 Jamboree Road, Suite 100
Newport Beach, California 92660-2940
1.1.8 EFFECTIVE DATE: The date on which this Agreement is
executed by the latter to sign of
Purchaser or Seller, as indicated on the
signature page of this Agreement. If the
execution date is left blank by either
Purchaser or Seller, the Effective Date
shall be the execution date inserted by
the other party.
1.1.9 PROPERTY December 1,2003
INFORMATION
DELIVERY DATE:
1.1.10 TITLE COMMITMENT December 1,2003
DELIVERY DATE:
1.1.11 TITLE AND SURVEY The period ending on December 24,2003.
REVIEW PERIOD:
1.1.12 INSPECTION The period beginning on December 1,
PERIOD: 2003, and ending December 24, 2003.
1.1.13 CLOSING DATE: The date which is thirty (30) days from
the Effective Date or such earlier date
in January, 2004 that the parties agree.
Purchaser may request an earlier Closing
Date so long as the Closing occurs and
funds on or before 2:00 p.m. CST on
December 29, 2003.
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1.2 CLOSING COSTS. Closing costs shall be allocated and paid as
follows:
<Table>
<Caption>
COST RESPONSIBLE PARTY
- ------------------------------------------------------------------------------------------
Title Commitment required to be delivered pursuant to SECTION 5.1 Seller
Premium for standard form Title Policy required to be delivered Seller
pursuant to SECTION 5.4
Premium for any upgrade of Title Policy for extended or additional Seller,
coverage and any endorsements desired by Purchaser, any up to $2,216.16,
inspection fee charged by the Title Company, tax certificates, and Purchaser
municipal and utility lien certificates, and any other Title for excess
Company charges
Costs of any revisions, modifications or recertifications to Purchaser
Survey delivered by Seller to Purchaser
Costs for UCC Searches Seller
Recording Fees Purchaser
Any deed taxes, documentary stamps, transfer taxes, intangible Seller
taxes, mortgage taxes or other similar taxes, fees
or assessments
Any escrow fee charged by Escrow Agent for holding the Earnest Purchaser 1/2
Money or conducting the Closing Seller 1/2
Real Estate Sales Commission to Broker Seller
All other closing costs, expenses, charges and fees per custom Purchaser/Seller
</Table>
1.3 NOTICE ADDRESSES:
<Table>
Purchaser: Inland Real Estate Acquisitions, Inc. Copy to: The Inland Real Estate
2901 Butterfield Road Group, Inc.
Oak Brook, IL 60523 2901 Butterfield Road
Attention: G. Joseph Cosenza Oak Brook, Illinois 60523
Telephone: 630-218-4948 Attention: Gary Pechter, Esq.
Facsimile: 630-218-4935 Telephone: 630-645-2084
E-mail: joe@inlandgroup.com Facsimile: 630-218-4900
E-mail:gpechter@inlandgroup.com
Seller: CH Realty II/North Ranch, L.P. Copy to: Crow Holdings
c/o. Crow Holdings 2100 Mckinney Avenue,
2100 McKinney Avenue, Suite Suite 700
700 Dallas, Texas 75201
Dallas, Texas 75201 Attention: M. Kevin Bryant
Attention: Rodney Whitley Telephone: 214-661-8110
Telephone: 214-661-8137 Facsimile: 214-661-8041
Facsimile: 214-661-8041 E-mail:
E-mail: kbryant@crowholdings.com
rwhitley@crowholdings.com
</Table>
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<Table>
With copy to:
John M. Nolan, Esq.
Winstead Sechrest & Minick P.C.
1201 Elm Street, Suite 5400
Dallas, Texas 75270
Telephone:214-745-5251
Facsimile: 214-745-5390
Email:
jnolan@winstead.com
</Table>
ARTICLE 2
PROPERTY
2.1 PROPERTY. Subject to the terms and conditions of this Agreement,
Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from
Seller, the following property (collectively, the "PROPERTY"):
2.1.1 REAL PROPERTY. The land described in EXHIBIT A attached
hereto (the "LAND"), together with (a) all improvements located thereon, but
expressly excluding improvements and structures owned by any tenant
("IMPROVEMENTS"), (b) without warranty, all right, title and interest of Seller,
if any, in and to the rights, benefits, privileges, easements, tenements,
hereditaments, and appurtenances thereon or in anywise appertaining thereto, and
(c) without warranty, all right, title, and interest of Seller, if any, in and
to all strips and gores and any land lying in the bed of any street, road or
alley, open or proposed, adjoining the Land (collectively, the "REAL PROPERTY").
2.1.2 LEASES. All of Seller's right, title and interest, without
warranty other than as set forth herein, in all leases of the Real Property
(other than License Agreements), including leases which may be made by Seller
after the Effective Date and prior to Closing as permitted by this Agreement
(the "LEASES").
2.1.3 TANGIBLE PERSONAL PROPERTY. All of Seller's right, title
and interest, without warranty, in the equipment, machinery, furniture,
furnishings, supplies and other tangible personal property, if any, owned by
Seller and now or hereafter located in and used in connection with the
operation, ownership or management of the Real Property, but specifically
excluding any items of personal property owned or leased by Seller's property
manager or tenants at or on the Real Property and further excluding any items of
personal property by third parties and leased to Seller (collectively, the
"TANGIBLE PERSONAL PROPERTY").
2.1.4 INTANGIBLE PERSONAL PROPERTY. All of Seller's right, title
and interest, if any, without warranty, in all intangible personal property
related to the Real Property and the Improvements, including, without
limitation: all trade names and trade marks associated with the Real Property
and the Improvements, including Seller's rights and interests, if any, in the
name of the Real Property; the plans and specifications and other architectural
and engineering drawings
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for the Improvements, if any (to the extent assignable without cost to Seller);
contract rights related to the operation, ownership or management of the Real
Property, including maintenance, service, construction, supply and equipment
rental contracts, if any, but not including Leases or License Agreements
(collectively, the "SERVICE CONTRACTS") (but only to the extent assignable
without cost to Seller and Seller's obligations thereunder are expressly assumed
by Purchaser pursuant to this Agreement); warranties (to the extent assignable
without cost to Seller); governmental permits, approvals and licenses, if any
(to the extent assignable without cost to Seller); and telephone exchange
numbers (to the extent assignable without cost to Seller (all of the items
described in this SECTION 2.1.4 collectively referred to as the "INTANGIBLE
PERSONAL PROPERTY"). Tangible Personal Property and Intangible Personal Property
shall not include (a) any appraisals or other economic evaluations of, or
projections with respect to, all or any portion of the Property, including,
without limitation, budgets prepared by or on behalf of Seller or any affiliate
of Seller, (b) any documents, materials or information which are subject to
attorney/client, work product or similar privilege, which constitute attorney
communications with respect to the Property and/or Seller, or which are subject
to a confidentiality agreement, and (c) any trade name, mark or other
identifying material that includes the name "Trammell Crow" or the name "Crow
Holdings" or any derivative thereof.
2.15 LICENSE AGREEMENTS. All of Seller's right, title and
interest, without warranty, in and to all agreements (other than Leases), if
any, for the leasing or licensing of rooftop space or equipment,
telecommunications equipment, cable access and other space, equipment and
facilities that are located on or within the Real Property and generate income
to Seller as the owner of the Real Property, including agreements which may be
made by Seller after the Effective Date and prior to Closing as permitted by
this Agreement (the "LICENSE AGREEMENTS"). Anything in this Agreement to the
contrary notwithstanding, Purchaser shall assume the obligations of the "lessor"
or "licensor" under all License Agreements, some or all of which may be
non-cancelable.
ARTICLE 3
EARNEST MONEY
3.1 DEPOSIT AND INVESTMENT OF EARNEST MONEY. One (1) business day
after the Effective Date, Purchaser shall deposit the Earnest Money with Escrow
Agent into a joint order escrow. Escrow Agent shall invest the Earnest Money in
government insured interest-bearing accounts satisfactory to Seller and
Purchaser, shall not commingle the Earnest Money with any funds of Escrow Agent
or others, and shall promptly provide Purchaser and Seller with confirmation of
the investments made. Such account shall have no penalty for early withdrawal,
and as between Seller and Purchaser, Purchaser accepts all risks with regard to
such account.
3.2 INDEPENDENT CONSIDERATION. If Purchaser elects to terminate this
Agreement for any reason and is entitled to receive a return of the Earnest
Money pursuant to the terms hereof, the Escrow Agent shall first disburse to
Seller One Hundred and No/100 Dollars ($100.00) as independent consideration for
Seller's performance under this Agreement ("INDEPENDENT CONSIDERATION"), which
shall be retained by Seller in all instances.
3.3 FORM: FAILURE TO DEPOSIT. The Earnest Money shall be in the form
of a certified or cashier's check or the wire transfer to Escrow Agent of
immediately available U.S. federal
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funds. If Purchaser fails to timely deposit any portion of the Earnest Money
within the time periods required, Seller may terminate this Agreement by written
notice to Purchaser, in which event any Earnest Money that has previously been
deposited by Purchaser with Escrow Agent shall be immediately delivered to
Seller and thereafter the parties hereto shall have no further rights or
obligations hereunder, except for rights or obligations which, by their terms,
survive the termination hereof.
3.4 DISPOSITION OF EARNEST MONEY. The Earnest Money shall be applied
as a credit to the Purchase Price at Closing. However, if Purchaser elects to
terminate this Agreement prior to the expiration of the Inspection Period
pursuant to SECTION 4.4, Escrow Agent shall pay the entire Earnest Money (less
the Independent Consideration) to Purchaser one business day following receipt
of the Due Diligence Termination Notice from Purchaser (as long as the current
investment can be liquidated and disbursed in one business day). No notice to
Escrow Agent from Seller shall be required for the release of the Earnest Money
to Purchaser by Escrow Agent if Purchaser terminates this Agreement pursuant to
SECTION 4.4. In the event of a termination of this Agreement by either Seller or
Purchaser for any reason other than pursuant to SECTION 4.4 Escrow Agent is
authorized to deliver the Earnest Money to the party hereto entitled to same
pursuant to the terms hereof on or before the tenth business day following
receipt by Escrow Agent and the non-terminating party of written notice of such
termination from the terminating party, unless the other party hereto notifies
Escrow Agent that it disputes the right of the other party to receive the
Earnest Money. In such event, Escrow Agent may interplead the Earnest Money into
a court of competent jurisdiction in the county in which the Earnest Money has
been deposited. All attorneys' fees and costs and Escrow Agent's costs and
expenses incurred in connection with such interpleader shall be assessed against
the party that is not awarded the Earnest Money, or if the Earnest Money is
distributed in part to both parties, then in the inverse proporation of such
distribution.
ARTICLE 4
DUE DILIGENCE
4.1 DUE DILIGENCE MATERIALS TO BE DELIVERED. Seller shall deliver to
Purchaser the following (the "PROPERTY INFORMATION") on or before the Property
Information Delivery Date:
4.1.1 RENT ROLL. A current rent roll ("RENT ROLL") for the
Property. Seller shall deliver an updated Rent Roll at Closing certified to its
knowledge to be true and complete.
4.1.2 FINANCIAL INFORMATION. Copy of operating statements and a
summary of capital expenditures pertaining to the Property for the 12 months
preceding the Effective Date or such lesser period as Seller has owned the
Property ("OPERATING STATEMENTS");
4.1.3 ENVIRONMENTAL REPORTS. Copy of any environmental reports
or site assessments related to the Property prepared for the benefit of Seller;
4.1.4 TAX STATEMENTS. Copy of ad valorem tax statements relating
to the Property for the current tax period;
4.1.5 TITLE AND SURVEY. Copy of Seller's most current title
insurance information and survey of the Property;
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4.1.6 SERVICE CONTRACTS. A list, together with copies, of
Service Contracts;
4.1.7 PERSONAL PROPERTY. A list of Tangible Personal Property;
and
4.1.8 LICENSE AGREEMENTS. A list, together with copies, of any
License Agreements.
4.1.9 LEASE FILES. The lease files for all tenants, including
the Leases, amendments, guaranties, any letter agreements and assignments which
are then in effect ("LEASE FILES");
4.1.10 LICENSES, PERMITS AND CERTIFICATES OF OCCUPANCY. Copies of
licenses, permits and certificates of occupancy relating to the Property to the
extent in Seller's possession.
Except for the Rent Roll contemplated in SECTION 4.1.4, Seller's
obligations to deliver the items listed in this SECTION 4.1 shall be limited to
the extent such items are in the possession of Seller or its property management
company.
4.2 DUE DILIGENCE MATERIALS TO BE MADE AVAILABLE. To the extent such
items are in Seller's possession, Seller shall make available to Purchaser for
Purchaser's review, at Seller's option at either the offices of Seller's
property manager or at the Property, the following items and information (the
"ADDITIONAL PROPERTY INFORMATION") on or before the Property Information
Delivery Date, and Purchaser at its expense shall have the right to make copies
of same:
4.2.1 MAINTENANCE RECORDS AND WARRANTIES. Maintenance work
orders for the 12 months preceding the Effective Date and warranties, if any, on
roofs, air conditioning units, fixtures and equipment;
4.2.2 PLANS AND SPECIFICATIONS. Building plans and
specifications relating to the Property; and
4.3 PHYSICAL DUE DILIGENCE. Commencing on the Effective Date and
continuing until the Closing, Purchaser shall have reasonable access to the
Property at all reasonable times during normal business hours, upon appropriate
notice to tenants as permitted or required under the Leases, for the purpose of
conducting reasonably necessary tests, including surveys and architectural,
engineering, geotechnical and environmental inspections and tests, provided that
(a) Purchaser must give Seller one full business days' prior telephone or
written notice of any such inspection or test, and with respect to any intrusive
inspection or test (i.e., core sampling) or communication with tenants must
obtain Seller's prior written consent (which consent may be given, withheld or
conditioned in Seller's sole discretion), (b) prior to performing any inspection
or test, Purchaser must deliver a certificate of insurance to Seller evidencing
that Purchaser and its contractors, agents and representatives have in place
reasonable amounts of commercial general liability insurance and workers
compensation insurance for its activities on the Property in terms and amounts
reasonably satisfactory to Seller covering any accident arising in connection
with the presence of Purchaser, its contractors, agents and representatives on
the Property, which insurance shall name Seller as an additional insured
thereunder, and (c) all such tests shall be conducted by Purchaser in compliance
with Purchaser's responsibilities set forth in
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SECTION 4.9 below. Purchaser shall bear the cost of all such inspections or
tests and shall be responsible for and act as the generator with respect to any
wastes generated by those tests. Subject to the provisions of SECTION 4.7
hereof, Purchaser or Purchaser's representatives may meet with any tenant;
provided, however, Purchaser must contact Seller at least one full business day
in advance by telephone to inform Seller of Purchaser's intended meeting and to
allow Seller the opportunity to attend such meeting if Seller desires. Subject
to the provisions of SECTION 4.7 hereof. Purchaser or Purchaser's
representatives may meet with any governmental authority for the sole purpose of
gathering information in connection with the transaction contemplated by this
Agreement; provided, however, Purchaser must contact Seller at least two full
business days in advance by telephone to inform Seller of Purchaser's intended
meeting and to allow Seller the opportunity to attend such meeting if Seller
desires.
4.4 DUE DILIGENCE/TERMINATION RIGHT. Purchaser shall have through the
last day of the Inspection Period in which to (a) examine, inspect, and
investigate the Property Information and the Additional Property Information
(collectively, the "PROPERTY DOCUMENTS") and the Property and, in Purchaser's
sole and absolute judgment and discretion, determine whether the Property is
acceptable to Purchaser, (b) obtain all necessary internal approvals, and (c)
satisfy all other contingencies of Purchaser. Notwithstanding anything to the
contrary in this Agreement, Purchaser may terminate this Agreement for any
reason or no reason by giving written notice of termination to Seller and Escrow
Agent (the "DUE DILIGENCE TERMINATION NOTICE") on or before the last day of the
Inspection Period. If Purchaser does not give a Due Diligence Termination
Notice, this Agreement shall continue in full force and effect, Purchaser shall
be deemed to have waived its right to terminate this Agreement pursuant to this
SECTION 4.4, and Purchaser shall be deemed to have acknowledged that it has
received or had access to all Property Documents and conducted all inspections
and tests of the Property that it considers important.
4.5 RETURN OF DOCUMENTS AND REPORTS. As additional consideration for
the transaction contemplated herein, Purchaser shall provide to Seller,
immediately following receipt of same by Purchaser, copies of all third party
reports, investigations and studies, other than economic analyses (collectively,
the "REPORTS" and, individually, a "REPORT") prepared for Purchaser in
connection with its due diligence review of the Property, including, without
limitation, any and all Reports involving structural or geological conditions,
environmental, hazardous waste or hazardous substances contamination of the
Property, if any, which Reports shall be addressed to both Seller and Purchaser
at no cost to Seller. The Reports shall be delivered to Seller without any
representation or warranty as to the completeness or accuracy of the Reports or
any other matter relating thereto. Purchaser's obligation to deliver the
Property Documents and the Reports to Seller shall survive the termination of
this Agreement.
4.6 SERVICE CONTRACTS. On or prior to the last day of the Inspection
Period, Purchaser will advise Seller in writing of which Service Contracts it
will assume and for which Service Contracts Purchaser requests that Seller
deliver written termination at or prior to Closing, provided Seller shall have
no obligation to terminate, and Purchaser shall be obligated to assume, any
Service Contracts which by their terms cannot be terminated without penalty or
payment of a fee. Seller shall deliver at Closing notices of termination of all
Service Contracts that are not so assumed. Purchaser must assume the obligations
arising from and after the Closing Date under those Service Contracts (a) that
Purchaser has agreed to assume, or that Purchaser is obligated to
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assume pursuant to this SECTION 4.6, and (b) for which a termination notice is
delivered as of or prior to Closing but for which termination is not effective
until after Closing.
4.7 PROPRIETARY INFORMATION; CONFIDENTIALITY. Purchaser acknowledges
that the Property Documents are proprietary and confidential and will be
delivered to Purchaser solely to assist Purchaser in determining the feasibility
of purchasing the Property. Purchaser shall not use the Property Documents for
any purpose other than as set forth in the preceding sentence. Purchaser shall
not disclose the contents to any person other than to those persons who are
responsible for determining the feasibility of Purchaser's acquisition of the
Property including, without limitation, engineers, environmental consultants,
and appraisers, as well as potential lenders, and who have agreed to preserve
the confidentiality of such information as required hereby (collectively,
"PERMITTED OUTSIDE PARTIES"). At any time and from time to time, within two
business days after Seller's request, Purchaser shall deliver to Seller a list
of all parties to whom Purchaser has provided any Property Documents or any
information taken from the Property Documents. Purchaser shall not divulge the
contents of the Property Documents and other information except in strict
accordance with the confidentiality standards set forth in this SECTION 4.7. In
permitting Purchaser to review the Property Documents or any other information,
Seller has not waived any privilege or claim of confidentiality with respect
thereto, and no third party benefits or relationships of any kind, either
express or implied, have been offered, intended or created.
4.8 NO REPRESENTATION OR WARRANTY BY SELLER. Purchaser acknowledges
that, except as expressly set forth in this Agreement, Seller has not made and
does not make any warranty or representation regarding the truth, accuracy or
completeness of the Property Documents or the source(s) thereof. Purchaser
further acknowledges that some if not all of the Property Documents were
prepared by third parties other than Seller. Seller expressly disclaims any and
all liability for representations or warranties, express or implied, statements
of fact and other matters contained in such information, or for omissions from
the Property Documents, or in any other written or oral communications
transmitted or made available to Purchaser. Purchaser shall rely solely upon its
own investigation with respect to the Property, including, without limitation,
the Property's physical, environmental or economic condition, compliance or lack
of compliance with any ordinance, order, permit or regulation or any other
attribute or matter relating thereto. Seller has not undertaken any independent
investigation as to the truth, accuracy or completeness of the Property
Documents and are providing the Property Documents solely as an accommodation to
Purchaser.
4.9 PURCHASER'S RESPONSIBILITIES. In conducting any inspections,
investigations or tests of the Property and/or Property Documents, Purchaser and
its agents and representatives shall: (a) not unreasonably disturb the tenants
or interfere with their use of the Property pursuant to their respective Leases;
(b) not unreasonably interfere with the operation and maintenance of the
Property; (c) not damage any part of the Property or any personal property owned
or held by any tenant or any third party; (d) not injure or otherwise cause
bodily harm to Seller or its agents, guests, invitees, contractors and employees
or any tenants or their guests or invitees; (e) comply with all applicable laws;
(f) promptly pay when due the costs of all tests, investigations, and
examinations done with regard to the Property; (g) not permit any liens to
attach to the Real Property by reason of the exercise of its rights hereunder;
(h) repair any damage to the Real Property resulting directly or indirectly from
any such inspection or tests; and (i) not reveal or
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disclose prior to Closing any information obtained during the Inspection Period
concerning the Property and the Property Documents to anyone other than the
Permitted Outside Parties, in accordance with the confidentiality standards set
forth in SECTION 4.7 above, or except as may be otherwise required by law.
4.10 PURCHASER'S AGREEMENT TO INDEMNIFY. Purchaser hereby agrees to
indemnify, defend and hold Seller harmless from and against any and all liens,
claims, causes of action, damages, liabilities and expenses (including
reasonable attorneys' fees) arising out of Purchaser's inspections or tests
permitted under this Agreement or any violation of the provisions of SECTIONS
4.3, 4.7 and 4.9; provided, however, the indemnity shall not extend to protect
Seller from any pre-existing liabilities for matters merely discovered by
Purchaser (i.e., latent environmental contamination) so long as Purchaser's
actions do not aggravate any pre-existing liability of Seller. Purchaser also
hereby agrees to indemnify, defend and hold any tenant harmless from and against
any and all claims, causes of action, damages, liabilities and expenses which
such tenant may suffer or incur due to Purchaser's breach of its obligation
under SECTION 4.7 to maintain the confidential nature of any Property Documents
or other information relative to such tenant. Purchaser's obligations under this
SECTION 4.10 shall survive the termination of this Agreement and shall survive
the Closing.
4.11 ENVIRONMENTAL STUDIES; SELLER'S RIGHT TO TERMINATE. As additional
consideration for the transaction contemplated in this Agreement, Purchaser must
provide to Seller, immediately following the receipt of same by Purchaser,
copies of any and all reports, tests or studies involving contamination of or
other environmental concerns relating to the Property; provided, however,
Purchaser shall have no obligation to cause any such tests or studies to be
performed on the Property. Seller acknowledges that Purchaser has not made and
does not make any warranty or representation regarding the truth or accuracy of
any such studies or reports. Notwithstanding SECTION 4.10, Purchaser shall have
no liability or culpability of any nature as a result of having provided such
information to Seller or as a result of Seller's reliance thereon or arising out
of the fact that Purchaser merely conducted such tests or studies, so long as
Purchaser's actions do not aggravate any pre-existing liability of Seller. In
the event that such reports, tests or studies indicate the existence or
reasonable potential existence of any contamination of any portion of the
Property that is not disclosed in the Property Documents and that is material
(meaning that the reasonably estimated cost of remediation and/or other
liability associated therewith, as determined by the parties' environmental
consultants, exceeds $125,000.00), then Seller may terminate this Agreement by
giving written notice to Purchaser within ten business days after Purchaser has
provided Seller with copies of such reports, tests or studies, whereupon the
Earnest Money shall be returned to Purchaser, the parties shall have no further
obligations hereunder except for obligations that expressly survive the
termination hereof.
ARTICLE 5
TITLE AND SURVEY
5.1 TITLE COMMITMENT. Seller has caused to be prepared and delivered
to Purchaser: (a) a current commitment for title insurance or preliminary title
report (the "TITLE COMMITMENT") issued by the Title Company, in the amount of
the Purchase Price and on an ALTA 1992 Standard Form commitment, with Purchaser
as the proposed insured, and (b) copies
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of all documents of record referred to in the Title Commitment as exceptions to
title to the Property.
5.2 NEW OR UPDATED SURVEY. Purchaser may elect to obtain a new survey
or revise, modify, or re-certify an existing survey ("SURVEY") as necessary in
order for the Title Company to delete the survey exception from the Title Policy
or to otherwise satisfy Purchaser's objectives.
5.3 TITLE REVIEW. During the Title and Survey Review Period, Purchaser
shall review title to the Property as disclosed by the Title Commitment and the
Survey. Seller shall have no obligation to cure title objections except
financing liens of an ascertainable amount created by, under or through Seller,
which liens Seller shall cause to be released at or prior to Closing (with
Seller having the right to apply the Purchase Price or a portion thereof for
such purpose), and Seller shall deliver the Property free and clear of any such
financing liens. Seller further agrees to remove any exceptions or encumbrances
to title which are voluntarily created by, under or through Seller after the
Effective Date without Purchaser's consent (if requested, such consent shall not
be unreasonably withheld or delayed). The term "PERMITTED EXCEPTIONS" shall
mean: the specific exceptions (excluding exceptions that are part of the
promulgated title insurance form) in the Title Commitment that the Title Company
has not agreed to remove from the Title Commitment as of the end of the Title
and Survey Review Period and that Seller is not required to remove as provided
above; matters created by, through or under Purchaser; items shown on the Survey
which have not been removed as of the end of the Inspection Period (or if
Purchaser does not obtain a Survey, all matters that a current, accurate survey
of the Property would show); real estate taxes not yet due and payable; rights
of tenants under the Leases; rights of tenants or licensees under License
Agreements; and any licensees under any Service Contracts not terminated as of
Closing.
5.4 DELIVERY OF TITLE POLICY AT CLOSING. In the event that the Title
Company does not issue at Closing, or unconditionally commit at Closing to
issue, to Purchaser, an owner's title policy in accordance with the Title
Commitment, insuring Purchaser's title to the Property in the amount of the
Purchase Price, subject only to the standard exceptions and exclusions from
coverage contained in such policy, the Permitted Exceptions (the "TITLE POLICY")
and the "REQUIRED ENDORSEMENTS" (herein so called) set forth on EXHIBIT J
attached hereto, Purchaser shall have the right to terminate this Agreement, in
which case the Earnest Money shall be immediately returned to Purchaser and the
parties hereto shall have no further rights or obligations, other than those
that by their terms survive the termination of this Agreement.
ARTICLE 6
OPERATIONS AND RISK OF LOSS
6.1 ONGOING OPERATIONS. From the Effective Date through Closing:
6.1.1 LEASES, SERVICE CONTRACTS AND LICENSE AGREEMENTS. Seller
will perform its material obligations under the Leases, Service Contracts and
License Agreements.
6.1.2 NEW CONTRACTS. Except as provided in SECTION 6.1.4, Seller
will not enter into any contract that will be an obligation affecting the
Property subsequent to the Closing,
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except contracts entered into in the ordinary course of business that are
terminable without cause and without the payment of any termination penalty on
not more than 30 days' prior notice.
6.1.3 MAINTENANCE OF IMPROVEMENTS: REMOVAL OF PERSONAL PROPERTY.
Subject to SECTIONS 6.2 and 6.3, Seller shall maintain or cause the tenants
under the Leases to maintain all Improvements substantially in their present
condition (ordinary wear and tear and casualty excepted) and in a manner
consistent with Seller's maintenance of the Improvements during Seller's period
of ownership. Seller will not remove any Tangible Personal Property except as
may be required for necessary repair or replacement, and replacement shall be of
approximately equal quality and quantity as the removed item of Tangible
Personal Property.
6.1.4 LEASING; LICENSE AGREEMENTS. Seller will not amend or
terminate any existing Lease or License Agreement or enter into any new Lease or
new License Agreement without providing Purchaser (a) all relevant supporting
documentation, as reasonably determined by Seller, including, without
limitation, tenant financial information to the extent in Seller's possession,
and (b) as to any such amendment or termination of a Lease or License Agreement
or new Lease or new License Agreement which is to be executed after the
expiration of the Inspection Period, Seller's request for Purchaser's approval.
Purchaser agrees to give Seller written notice of approval or disapproval of a
proposed amendment or termination of a Lease or License Agreement or new Lease
or new License Agreement within three business days after Purchaser's receipt of
the items in SECTION 6.1.4. If Purchaser does not respond to Seller's request
within such time period, then Purchaser will be deemed to have approved such
amendment, termination or new Lease or new License Agreement. With respect to a
request for approval delivered by Seller to Purchaser, Purchaser may withhold
its consent at its reasonable discretion, and Seller may not amend or terminate
a Lease or License Agreement or enter into a new Lease or new License Agreement
without Purchaser's written consent.
6.2 DAMAGE. If prior to Closing the Property is damaged by fire or
other casualty, Seller shall estimate the cost to repair and the time required
to complete repairs and will provide Purchaser written notice of Seller's
estimation (the "CASUALTY NOTICE") as soon as reasonably possible after the
occurrence of the casualty.
6.2.1 MATERIAL. In the event of any Material Damage to or
destruction of the Property or any portion thereof prior to Closing, Purchaser
may, at its option, terminate this Agreement by delivering written notice to
Seller on or before the expiration of 30 days after the date Seller delivers the
Casualty Notice to Purchaser (and if necessary, the Closing Date shall be
extended to give Purchaser the full thirty-day period to make such election and
to obtain insurance settlement agreements with Seller's insurers). Upon any such
termination, the Earnest Money shall be returned to Purchaser and the parties
hereto shall have no further rights or obligations hereunder, other than those
that by their terms survive the termination of this Agreement. If Purchaser does
not terminate this Agreement within said 30-day period, then the parties shall
proceed under this Agreement and close on schedule (subject to extension of
Closing as provided above), and as of Closing Seller shall assign to Purchaser,
without representation or warranty by or recourse against Seller, all of
Seller's rights in and to any resulting insurance proceeds (including any rent
loss insurance applicable to any period on and after the Closing Date) due
Seller as a result of such damage or destruction and Purchaser shall assume full
responsibility for all needed repairs, and Purchaser shall receive a credit at
Closing
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for any deductible amount under such insurance policies (but the amount of the
deductible plus insurance proceeds shall not exceed the lesser of (a) the cost
of repair or (b) the Purchase Price and a pro rata share of the rental or
business loss proceeds, if any). For the purposes of this Agreement, "MATERIAL
DAMAGE" and "MATERIALLY DAMAGED" means damage which, in Seller's reasonable
estimation, exceeds $300,000.00 to repair.
6.2.2 NOT MATERIAL. If the Property is not Materially Damaged,
then Purchaser shall have no right to terminate this Agreement, and Seller
shall, at its option, either (a) repair the damage before the Closing in a
manner reasonably satisfactory to Purchaser (and if necessary, Seller may extend
the Closing Date up to 30 days to complete such repairs), or (b) credit
Purchaser at Closing for the reasonable cost to complete the repair (in which
case Seller shall retain all insurance proceeds and Purchaser shall assume full
responsibility for all needed repairs).
6.3 CONDEMNATION. If proceedings in eminent domain are instituted, or
if Seller receives notice from any applicable governmental authority stating
that such proceedings will be initiated, with respect to the Property or any
portion thereof, Purchaser may, at its option, by written notice to Seller given
within ten days after Seller notifies Purchaser of such proceedings (and if
necessary the Closing Date shall be automatically extended to give Purchaser the
full ten-day period to make such election), either: (a) terminate this
Agreement, in which case the Earnest Money shall be immediately returned to
Purchaser and the parties hereto shall have no further rights or obligations,
other than those that by their terms survive the termination of this Agreement,
or (b) proceed under this Agreement, in which event Seller shall, at the
Closing, assign to Purchaser its entire right, title and interest in and to any
condemnation award, and Purchaser shall have the sole right after the Closing to
negotiate and otherwise deal with the condemning authority in respect of such
matter. If Purchaser does not give Seller written notice of its election within
the time required above, then Purchaser shall be deemed to have elected option
(b) above.
ARTICLE 7
CLOSING
7.1 CLOSING. The consummation of the transaction contemplated herein
("CLOSING") shall occur on the Closing Date at the offices of Escrow Agent (or
such other location as may be mutually agreed upon by Seller and Purchaser).
Funds shall be deposited into and held by Escrow Agent in a closing escrow
account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or
completion of all closing conditions and deliveries, the parties shall direct
Escrow Agent to immediately record and deliver the closing documents to the
appropriate parties and make disbursements according to the closing statements
executed by Seller and Purchaser.
7.2 CONDITIONS TO PARTIES' OBLIGATION TO CLOSE. In addition to all
other conditions set forth herein, the obligation of Seller, on the one hand,
and Purchaser, on the other hand, to consummate the transactions contemplated
hereunder are conditioned upon the following:
7.2.1 REPRESENTATIONS AND WARRANTIES. The other party's
representations and warranties contained herein shall be true and correct in all
material respects as of the Effective Date and the Closing Date, except for
representations and warranties made as of, or limited by, a
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specific date, which will be true and correct in all material respects as of the
specified date or as limited by the specified date;
7.2.2 DELIVERIES. As of the Closing Date, the other party shall
have tendered all deliveries to be made at Closing; and
7.2.3 ACTIONS, SUITS, ETC. There shall exist no pending or
threatened actions, suits, arbitrations, claims, attachments, proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization
or other proceedings, against the other party that would materially and
adversely affect the operation or value of the Property or the other party's
ability to perform its obligations under this Agreement.
So long as a party is not in default hereunder, if any condition to such
party's obligation to proceed with the Closing hereunder has not been satisfied
as of the Closing Date (or such earlier date as is provided herein), subject to
any applicable notice and cure periods provided in SECTIONS 10.1 and 10.2, such
party may, in its sole discretion, terminate this Agreement by delivering
written notice to the other party on or before the Closing Date (or such earlier
date as is provided herein), or elect to close (or to permit any such earlier
termination deadline to pass) notwithstanding the non-satisfaction of such
condition, in which event such party shall be deemed to have waived any such
condition. In the event such party elects to close (or to permit any such
earlier termination deadline to pass), notwithstanding the non-satisfaction of
such condition, said party shall be deemed to have waived said condition, and
there shall be no liability on the part of any other party hereto for breaches
of representations and warranties of which the party electing to close had
knowledge at the Closing.
7.3 SELLER'S DELIVERIES IN ESCROW. As of or prior to the Closing Date,
Seller shall deliver in escrow to Escrow Agent the following:
7.3.1 DEED. A special warranty deed in the form of EXHIBIT B
hereto (or other limited warranty deed, as Seller's local counsel or Title
Company shall advise, warranting title only against any party claiming by,
through or under Seller) in form acceptable for recordation under the law of the
state where the Property is located and restating the provisions of ARTICLE 11
hereof and including a list of Permitted Exceptions to which the conveyance
shall be subject, executed and acknowledged by Seller, conveying to Purchaser
Seller's interest in the Real Property (the "DEED");
7.3.2 BILL OF SALE, ASSIGNMENT AND ASSUMPTION. A Bill of Sale,
Assignment and Assumption of Contracts and an Assignment and Assumption of
Leases in the form of EXHIBIT C-1 and EXHIBIT C-2, respectively, attached hereto
(collectively, the "ASSIGNMENT"), executed and acknowledged by Seller, vesting
in Purchaser, without warranty other than as set forth herein, Seller's right,
title and interest in and to the property described therein free of any claims,
except for the Permitted Exceptions to the extent applicable;
7.3.3 CONVEYANCING OR TRANSFER TAX FORMS OR RETURNS. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Seller by applicable state and local law in connection
with the conveyance of the Real Property;
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7.3.4 FIRPTA. A Foreign Investment in Real Property Tax Act
affidavit in the form of EXHIBIT D hereto executed by Seller;
7.3.5 AUTHORITY. Evidence of the existence, organization and
authority of Seller and of the authority of the persons executing documents on
behalf of Seller reasonably satisfactory to the underwriter for the Title
Policy;
7.3.6 ADDITIONAL DOCUMENTS. Any additional documents that Escrow
Agent or the Title Company may reasonably require for the proper consummation of
the transaction contemplated by this Agreement (provided, however, no such
additional document shall expand any obligation, covenant, representation or
warranty of Seller or result in any new or additional obligation, covenant,
representation or warranty of Seller under this Agreement beyond those expressly
set forth in this Agreement); and
7.3.7 TENANT ESTOPPEL CERTIFICATES. Tenant Estoppel Certificates
substantially in the form of EXHIBIT G-1 (or, if a tenant's Lease specifies or
contemplates another form of tenant estoppel certificate, then such other
specified or contemplated form) executed by tenants occupying not less than 90%
of the square feet in the Improvements leased to tenants. Seller shall not be
obligated to expend any funds in connection with obtaining any such tenant
estoppel certificates, and the failure of Seller to obtain any such tenant
estoppel certificates shall not be a breach or default hereunder. Seller shall
use commercially reasonable efforts to reconcile factual discrepancies between
the Tenant Estoppel Certificates and the Lease Files and Rent Roll so long as
Seller is not obligated to incur costs to do so. If Seller is unable to deliver
the tenant estoppel certificates referred to in this SECTION 7.3.7 in the manner
and time frames required hereby, including reconciliation of the same in the
manner described above, then Purchaser's sole remedies and recourses shall be
limited to either (a) waiving the requirement for the tenant estoppel
certificate(s) in question and proceeding to Closing without reduction of the
Purchase Price or (b) terminating this Agreement by immediate notification to
Seller, in which event this Agreement shall be terminated as provided for in
SECTION 10.2 even if it is determined that the Tenant Estoppel Certificates
cannot be obtained following the expiration of the Inspection Period. Either
decision must be made within three(3) business days of receipt of the Tenant
Estoppel Certificates or Purchaser will be deemed to have elected to proceed
under (a) above. The parties further agree that Seller may extend the Closing
for a period of up to but not in excess of fifteen (15) days in order to permit
Seller additional time to secure the requested Tenant Estoppel Certificates and
in such instance Purchaser cannot terminate until the expiration of the
aforesaid fifteen (15) day period.
7.3.8 DECLARATION ESTOPPEL CERTIFICATES. Declaration Estoppel
Certificates substantially in the form of EXHIBIT G-2 executed by The Vons
Companies, Inc. and World Savings Bank, FSB. Seller shall not be obligated to
expend any funds in connection with obtaining any such Declaration Estoppel
Certificates, and the failure of Seller to obtain any such Declaration Estoppel
Certificates shall not be a breach or default hereunder. If Seller is unable to
deliver the Declaration Estoppel Certificates referred to in this SECTION 7.3.8,
then Purchaser's sole remedies and recourses shall be limited to either (a)
waiving the requirement for the Declaration Estoppel Certificates in question
and proceeding to Closing without reduction of the Purchase Price or (b)
terminating this Agreement by immediate notification to Seller, in which event
this Agreement shall be terminated as provided for in SECTION 10.2. Either
decision must
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be made within three (3) business days of receipt of the Declaration Estoppel
Certificates or Purchaser will be deemed to have elected to proceed under (a)
above. The parties further agree that Seller may extend the Closing for a period
of up to but not in excess of fifteen (15) days in order to permit Seller
additional time to secure the requested Declaration Estoppel Certificates.
7.4 PURCHASER'S DELIVERIES IN ESCROW. As of or prior to the Closing
Date, Purchaser shall deliver in escrow to Escrow Agent the following:
7.4.1 BILL OF SALE, ASSIGNMENT AND ASSUMPTION. The Assignment,
executed and acknowledged by Purchaser;
7.4.2 ERISA LETTER. A letter to Seller in the form of EXHIBIT E
attached hereto duly executed by Purchaser, confirming that Purchaser is not
acquiring the Property with the assets of an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 ("ERISA")
and, in the event Purchaser is unable or unwilling to make such a
representation, Purchaser shall be deemed to be in default hereunder, and Seller
shall have the right to terminate this Agreement and to receive and retain the
Earnest Money;
7.4.3 CONVEYANCING OR TRANSFER TAX FORMS OR RETURNS. Such
conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Purchaser by applicable state and local law in connection
with the conveyance of Real Property;
7.4.4 AUTHORITY. Evidence of the existence, organization and
authority of Purchaser and of the authority of the persons executing documents
on behalf of Purchaser reasonably satisfactory to the underwriter for the Title
Policy; and
7.4.5 ADDITIONAL DOCUMENTS. Any additional documents that
Seller, Escrow Agent or the Title Company may reasonably require for the proper
consummation of the transaction contemplated by this Agreement (provided,
however, no such additional document shall expand any obligation, covenant,
representation or warranty of Purchaser or result in any new or additional
obligation, covenant, representation or warranty of Purchaser under this
Agreement beyond those expressly set forth in this Agreement).
7.5 CLOSING STATEMENTS. As of or prior to the Closing Date, Seller and
Purchaser shall deposit with Escrow Agent executed closing statements consistent
with this Agreement in the form required by Escrow Agent.
7.6 PURCHASE PRICE. At or before 1:00 p.m. local time on the Closing
Date, Purchaser shall deliver to Escrow Agent the Purchase Price, less the
Earnest Money that is applied to the Purchase Price, plus or minus applicable
prorations, in immediate, same-day U.S. federal funds wired for credit into
Escrow Agent's escrow account, which funds must be delivered in a manner to
permit Escrow Agent to deliver good funds to Seller or its designee on the
Closing Date (and, if requested by Seller, by wire transfer); in the event that
Escrow Agent is unable to deliver good funds to Seller or its designee on the
Closing Date, then the closing statements and related prorations will be revised
as necessary.
7.7 POSSESSION. Seller shall deliver possession of the Property to
Purchaser at the Closing subject only to the Permitted Exceptions.
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7.8 DELIVERY OF BOOKS AND RECORDS. After the Closing, Seller shall
deliver to the offices of Purchaser's property manager or to the Real Property
to the extent in Seller's or its property manager's possession or control: Lease
Files; License Agreements; maintenance records and warranties; plans and
specifications; licenses, permits and certificates of occupancy; copies or
originals of all books and records of account, contracts, and copies of
correspondence with tenants and suppliers; all advertising materials; booklets;
and keys.
7.9 NOTICE TO TENANTS. Seller and Purchaser shall each execute, and
Purchaser shall deliver to each tenant immediately after the Closing, a notice
regarding the sale in substantially the form of EXHIBIT F attached hereto, or
such other form as may be required by applicable state law. This obligation on
the part of Purchaser shall survive the Closing.
ARTICLE 8
PRORATIONS, DEPOSITS, COMMISSIONS
8.1 PRORATIONS. At Closing, the following items shall be prorated as
of the date of Closing with all items of income and expense for the Property
being borne by Purchaser from and after (and including) the date of Closing:
"Tenant Receivables" and "Credits" (as each is defined below) and other income
and rents that have been collected by Seller as of Closing; fees and
assessments; prepaid expenses and obligations under Service Contracts; accrued
operating expenses; real and personal ad valorem taxes ("TAXES"); and any
assessments by private covenant for the then-current calendar year of Closing.
Specifically, the following shall apply to such prorations and to post-Closing
collections of Tenant Receivables:
8.1.1 TAXES. If Taxes for the year of Closing are not known or
cannot be reasonably estimated, Taxes shall be prorated based on Taxes for the
year prior to Closing.
8.1.2 UTILITIES. Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the Closing Date, and
where necessary, post deposits with the utility companies. Seller shall ensure
that all utility meters are read as of the Closing Date. Seller shall be
entitled to recover any and all deposits held by any utility company as of the
Closing Date.
8.1.3 TENANT RECEIVABLES AND CREDITS. Rents due from tenants
under Leases and from tenants or licensees under License Agreements and
operating expenses and/or taxes payable by tenants under Leases (collectively,
"TENANT RECEIVABLES") and not collected by Seller as of Closing shall not be
prorated between Seller and Purchaser at Closing but shall be apportioned on the
basis of the period for which the same is payable and if, as and when collected,
as follows:
(a) Tenant Receivables and other income received from
tenants under Leases and/or tenants or licensees under License Agreements
after Closing shall be applied in the following order of priority; (A)
first, to payment of the current Tenant Receivables then due for the
month in which the Closing Date occurs, which amount shall be apportioned
between Purchaser and Seller as of the Closing Date as set forth in
SECTION 8.1 hereof (with Seller's portion thereof to be delivered to
Seller); (B) second, to payment of Tenant Receivables first coming due
after Closing but applicable to the period
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of time before Closing, including, without limitation, the Tenant
Receivables described in SECTION 8.1.3(c) (collectively, "UNBILLED TENANT
RECEIVABLES"), which amount shall be delivered to Seller; (C) third, to
Tenant Receivables first coming due after Closing and applicable to the
period of time after Closing, which amount shall be retained by
Purchaser; and (D) thereafter, to delinquent Tenant Receivables which
were due and payable as of Closing but not collected by Seller as of
Closing (collectively, "UNCOLLECTED DELINQUENT TENANT RECEIVABLES"),
which amount shall be delivered to Seller. Notwithstanding the foregoing,
Seller shall have the right to pursue the collection of Uncollected
Delinquent Tenant Receivables for a period of one year after Closing
without prejudice to Seller's rights or Purchaser's obligations
hereunder, provided, however, Seller shall have no right to cause any
such tenant or licensee to be evicted or to exercise any other "landlord"
remedy (as set forth in such tenant's Lease or licensee's License
Agreement) against such tenant other than to sue for collection. Any sums
received by Purchaser to which Seller is entitled shall be held in trust
for Seller on account of such past due rents payable to Seller, and
Purchaser shall remit to Seller any such sums received by Purchaser to
which Seller is entitled within ten business days after receipt thereof
less reasonable, actual costs and expenses of collection, including
reasonable attorneys' fees, court costs and disbursements, if any. Seller
expressly agrees that if Seller receives any amounts after the Closing
Date which are attributable, in whole or in part, to any period after the
Closing Date, Seller shall remit to Purchaser that portion of the monies
so received by Seller to which Purchaser is entitled within ten business
days after receipt thereof. With respect to Unbilled Tenant Receivables,
Purchaser covenants and agrees to (A) bill the same when billable and (B)
cooperate with Seller to determine the correct amount of operating
expenses and/or taxes due. The provisions of this SECTION 8.1.3(a) shall
survive the Closing.
(b) Purchaser and Seller further agree that Purchaser
accepts the loss of rent for those portions of the space currently
vacant. Seller agrees that at Closing, Purchaser shall be entitled to a
credit (i) in an amount equal to $225.01 per day from the Closing through
January 31, 2004, the date on which Savvy Enterprises, LLC ("SAVVY") is
scheduled to commence payment of full rent, (ii) in an amount equal to
$99.57 per day from the date of Closing through January 9, 2004, the date
on which Kristine Skeate and Yanire Bentato (Pilates) is scheduled to
commence payment of full rent, and (iii) in an amount equal to $143.50
per day from the date of Closing through March 1, 2004, the date on which
Exotic Thai, Inc. is scheduled to commence payment of full rent
(collectively, the "CREDITS"). Further, any costs incurred in causing
such tenants to finalize leases and commence occupancy including leasing
commissions and tenant improvement costs of its space paying full rent
from the Closing until such time as each such tenant has commenced full
rental payment shall be borne by Seller. The parties agree that if Savvy
does not commence full payment of rent on February 1, 2004, then $225.01
per day shall be remitted from Seller to Purchaser for each day from
February 1, 2004, through (x) the earlier of the date that Savvy does
commence full rental payment or (y) the "CUT OFF DATE" (herein so
called). The parties agree that if Kristine Skeate and Yanire Bentato
(Pilates) do not commence full payment of rent on January 9, 2004, then
$99.57 per day shall be remitted from Seller to Purchaser for each day
from January 9, 2004 through (x) the earlier of the date on which such
tenant commences full rental payment or (y) the Cut Off Date. The parties
further agree that if Exotic Thai. Inc. does
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not commence full payment of rent on March 1, 2004, then $143.50 per day
shall be remitted (i) from Seller to Purchaser for each day from March 1,
2004 through (x) the earlier of the date on which such tenant commences
full rental payment or (y) the Cut Off Date, and (ii) from Purchaser to
Seller for each day after such tenant commences full payment of rent
subsequent to Closing but prior to March 1, 2004. If any of the aforesaid
tenants commences to pay full rental following the Closing but prior to
the date for which a Credit was calculated as a closing proration,
Purchaser shall pay to Seller the portion of the Credit(s) from the
earlier date the tenant commenced paying full rental and the date used to
calculate the Credit. For purposes of this Section 8.1.3(b), the term
"Cut Off Date" shall mean six (6) months from the date that the payment
of full rent was scheduled to commence for each applicable lease as
recited above. The obligations of each party pursuant to this SECTION
8.1.3(b) shall expressly survive a Closing hereunder, and such
obligations shall be fulfilled on or prior to the final adjustment after
closing referenced in SECTION 8.4 below.
(c) Without limiting the generality of the requirements
of SECTION 8.1.3(a)(B) above, if the final reconciliation or
determination of operating expenses and/or taxes due under the Leases
shows that a net amount is owed by Seller to Purchaser, said amount shall
be paid by Seller to Purchaser within ten business days of such final
determination under the Leases. If the final determination of operating
expenses and/or taxes due under the Leases shows that a net amount is
owed by Purchaser to Seller, Purchaser shall, within ten business days of
such final determination, remit said amount to Seller to the extent
monies have been received by Purchaser from the tenant(s) in question.
Purchaser agrees to receive and hold any monies received on account of
such past due expenses and/or taxes in trust for Seller and to pay same
promptly to Seller as aforesaid. The provisions of this SECTION 8.1.3(c)
shall survive the Closing.
8.2 LEASING COSTS. Seller agrees to pay or discharge at or prior to
Closing all leasing commissions, costs for tenant improvements, lease buyout
costs, moving allowances, design allowances, legal fees and other costs,
expenses and allowances incurred or accrued in order to induce a tenant to enter
into a Lease or Lease renewal or extension or to induce a licensee to enter into
a License Agreement (collectively, "LEASING COSTS") that are due and payable
prior to Closing with respect to Leases and License Agreements in force as of or
prior to the Effective Date; provided, however, that Seller shall have no
obligation to pay, and as of Closing Purchaser shall assume the obligation to
pay, all Leasing Costs payable with respect to any option to renew or option to
expand that has not been exercised prior to the Effective Date, which obligation
shall survive the Closing. Additionally, as of Closing, Purchaser shall assume
Seller's obligations for (a) Leasing Costs that are due and payable after
Closing with respect to Leases and License Agreements in force as of or prior to
the Effective Date, and (b) Leasing Costs incurred with respect to Leases and
Lease renewals and extensions and License Agreements and License Agreement
renewals and extensions executed subsequent to the Effective Date.
8.3 CLOSING COSTS. Closing costs shall be allocated between Seller and
Purchaser in accordance with SECTION 1.2.
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8.4 FINAL ADJUSTMENT AFTER CLOSING. If final bills are not available
or cannot be issued prior to Closing for any item being prorated under SECTION
8.1, then Purchaser and Seller agree to allocate such items on a fair and
equitable basis as soon as such bills are available, final adjustment to be made
as soon as reasonably possible after the Closing. Payments in connection with
the final adjustment shall be due within 30 days of written notice. All such
rights and obligations shall survive the Closing.
8.5 TENANT DEPOSITS. All tenant and licensee security deposits
collected and not applied by Seller (and interest thereon if required by law or
contract) shall be transferred or credited to Purchaser at Closing. As of the
Closing, Purchaser shall assume Seller's obligations related to tenant and
licensee security deposits, but only to the extent they are credited or
transferred to Purchaser.
8.6 COMMISSIONS. Seller shall be responsible to Broker for a real
estate sales commission at Closing (but only in the event of a Closing in strict
accordance with this Agreement) in accordance with a separate agreement between
Seller and Broker. Broker may share its commission with any other licensed
broker involved in this transaction, but the payment of the commission by Seller
to Broker shall fully satisfy any obligations of Seller to pay a commission
hereunder. Under no circumstances shall Seller owe a commission or other
compensation directly to any other broker, agent or person. Any cooperating
broker shall not be an affiliate, subsidiary or related in any way to Purchaser.
Other than as stated above in this SECTION 8.6, Seller and Purchaser each
represent and warrant to the other that no real estate brokerage commission is
payable to any person or entity in connection with the transaction contemplated
hereby, and each agrees to and does hereby indemnify and hold the other harmless
against the payment of any commission to any other person or entity claiming by,
through or under Seller or Purchaser, as applicable. This indemnification shall
extend to any and all claims, liabilities, costs and expenses (including
reasonable attorneys' fees and litigation costs) arising as a result of such
claims and shall survive the Closing.
8.7 PCR/PROPERTY REPAIRS CREDIT. Purchaser acknowledges its receipt
and acceptance of the terms and conditions of the certain Property Condition
Report prepared by National Planning & Zoning Consulting Service updated April
18, 2002 with respect to the Property, PZR Site number 10808, and acknowledges
that it shall receive at Closing Credits of $8,000.00 for wood replacement,
$220,150.00 for roof replacement and $9,850.00 for sealing and striping the
parking lot in consideration for its acceptance of the aforesaid Report and its
waiver of rights to terminate this Agreement as a result of any additional
physical inspections of the Property.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser that:
9.1.1 ORGANIZATION AND AUTHORITY. Seller has been duly
organized, is validly existing, and is in good standing in the state in which it
was formed. Seller has the full right and authority and has obtained any and all
consents required to enter into this Agreement and to
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consummate or cause to be consummated the transactions contemplated hereby. This
Agreement has been, and all of the documents to be delivered by Seller at the
Closing will be, authorized and executed and constitute, or will constitute, as
appropriate, the valid and binding obligation of Seller, enforceable in
accordance with their terms.
9.1.2 CONFLICTS AND PENDING ACTIONS. There is no agreement to
which Seller is a party or, to Seller's knowledge, that is binding on Seller
which is in conflict with this Agreement. To Seller's knowledge, there is no
action or proceeding pending or threatened against Seller or relating to the
Property, which challenges or impairs Seller's ability to execute or perform its
obligations under this Agreement.
9.1.3 TENANT LEASES. As of the Effective Date, EXHIBIT H lists
all tenants of the Property and the Lease Files include leases and amendments.
The Lease Files are true, correct, and complete as to the matters in Seller's
possession. To Seller's knowledge, except as disclosed on the Lease Files, no
tenant is in default, except as reflected therein, all tenants are in possession
and paying rent, and no concessions are required to be paid to tenants following
Closing. Seller has received no written notice from any tenant claiming default
by Seller or requesting rent concessions, offset, or abatement.
9.1.4 SERVICE CONTRACTS AND LICENSE AGREEMENTS. To Seller's
knowledge, the list of Service Contracts and License Agreements to be delivered
to Purchaser pursuant to this Agreement will be correct and complete as of the
date of its delivery.
9.1.5 NOTICES FROM GOVERNMENTAL AUTHORITIES. To Seller's
knowledge, Seller has not received from any governmental authority written
notice of any material violation of any laws applicable (or alleged to be
applicable) to the Real Property, or any part thereof, that has not been
corrected, except as may be reflected by the Property Documents or otherwise
disclosed in writing to Purchaser nor has Seller received notice from any
governmental authority stating that the Real Property would be subject to a
special assessment except as may be included in the Property Documents or Title
Commitment.
9.1.6 CONDEMNATION. To Seller's knowledge, no condemnation or
similar proceedings have been instituted or threatened against the Land or any
part thereof, and Seller has not received notice of any such proceedings.
9.1.7 FINANCIAL COVENANT. For a period of not less than six
months following closing, Seller will maintain a net worth of not less than
$250,000.00.
9.1.8 NOTICES OF ENVIRONMENTAL LIENS OR VIOLATIONS. To Seller's
knowledge, Seller has not received from any governmental authority written
notice of any violation of any applicable environmental laws (or alleged to be
applicable) or environmental liens relating to the Real Property, or any part
thereof, except as may be reflected by the Property Documents or otherwise
disclosed in writing to Purchaser.
9.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants to Seller that:
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9.2.1 ORGANIZATION AND AUTHORITY. Purchaser has been duly
organized and is validly existing as a corporation in good standing in the State
of Illinois and is qualified to do business in the state in which the Real
Property is located. Purchaser has the full right and authority and has obtained
any and all consents required to enter into this Agreement and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement has
been, and all of the documents to be delivered by Purchaser at the Closing will
be, authorized and properly executed and constitute, or will constitute, as
appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
9.2.2 CONFLICTS AND PENDING ACTION. There is no agreement to
which Purchaser is a party or to Purchaser's knowledge binding on Purchaser
which is in conflict with this Agreement. There is no action or proceeding
pending or, to Purchaser's knowledge, threatened against Purchaser which
challenges or impairs Purchaser's ability to execute or perform its obligations
under this Agreement.
9.2.3 ERISA. Purchaser is not an employee benefit plan (a
"PLAN") subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "CODE"), assets of a Plan are not being used to acquire the
Property, Purchaser is not a "party in interest" (as that term is defined in
Section 3(14) of ERISA) with respect to any Plan that is an investor in Seller,
and Purchaser's acquisition of the Property will not constitute or result in a
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
9.2.4 PROHIBITED PERSONS AND TRANSACTIONS. Neither Purchaser nor
any of its affiliates, nor any of their respective partners, members,
shareholders or other equity owners, and none of their respective employees,
officers, directors, representatives or agents is, nor will they become, a
person or entity with whom U.S. persons or entities are restricted from doing
business under regulations of the Office of Foreign Asset Control ("OFAC") of
the Department of the Treasury (including those named on OFAC's Specially
Designated and Blocked Persons List) or under any statute, executive order
(including the September 24, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action and is not and will not engage in any
dealings or transactions or be otherwise associated with such persons or
entities.
9.2.5 NO FINANCING CONTINGENCY. Purchaser represents and
warrants, and confirms, to Seller that its obligations hereunder are expressly
not contingent upon the securing of financing in order to consummate the
transaction contemplated hereby within the time frames specified herein.
Purchaser further warrants that it has cash sufficient to consummate the
transaction contemplated hereby. Therefore, Purchaser has no rights to either
terminate this Agreement as a result of financing contingency or to extend the
date of Closing as a result of its need to comply with the requirements of a
loan or equity source.
9.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in this Agreement are made as of the Effective Date and
are remade as of the Closing Date and shall not be deemed to be merged into or
waived by the instruments of Closing, but shall survive the Closing for a period
of nine months (the "SURVIVAL PERIOD"). Terms such as "TO SELLER'S KNOWLEDGE,"
"TO THE BEST OF SELLER'S KNOWLEDGE" or like phrases mean the actual
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present and conscious awareness or knowledge of Michael Wenaas ("SELLER'S
REPRESENTATIVES"), without any duty of inquiry or investigation; provided that
so qualifying Seller's knowledge shall in no event give rise to any personal
liability on the part of Seller's Representatives, or any of them, or any other
officer or employee of Seller, on account of any breach of any representation or
warranty made by Seller herein. Said terms do not include constructive
knowledge, imputed knowledge, or knowledge Seller or such persons do not have
but could have obtained through further investigation or inquiry. No broker,
agent, or party other than Seller is authorized to make any representation or
warranty for or on behalf of Seller. Each party shall have the right to bring an
action against the other on the breach of a representation or warranty
hereunder, but only on the following conditions: (a) the party bringing the
action for breach first learns of the breach after Closing, and (b) neither
party shall have the right to bring a cause of action for a breach of a
representation or warranty unless the damage to such party on account of such
breach (individually or when combined with damages from other breaches) equals
or exceeds $10,000.00. Neither party shall have any liability after Closing for
the breach of a representation or warranty hereunder of which the other party
hereto had knowledge as of Closing. Notwithstanding any other provision of this
Agreement, any agreement contemplated by this Agreement, or any rights which
Purchaser might otherwise have at law, equity, or by statute, whether based on
contract or some other claim, Purchaser agrees that any liability of Seller to
Purchaser will be limited to $500,000.00. The provisions of this SECTION 9.3
shall survive the Closing. Any breach of a representation or warranty that
occurs prior to Closing shall be governed by ARTICLE 10.
ARTICLE 10
DEFAULT AND REMEDIES
10.1 SELLER'S REMEDIES. If Purchaser fails to consummate the purchase
of the Property pursuant to this Agreement as a result of Purchaser's default
hereunder, Seller shall be entitled, as its sole remedy, to terminate this
Agreement and recover the Earnest Money as liquidated damages and not as
penalty, in full satisfaction of claims against Purchaser hereunder. Seller and
Purchaser agree that Seller's damages resulting from Purchaser's failure to
consummate the purchase of the Property are difficult, if not impossible, to
determine and the Earnest Money is a fair estimate of those damages, which has
been agreed to in an effort to cause the amount of such damages to be certain.
If Purchaser defaults on its obligations hereunder at or prior to Closing other
than failing to consummate the purchase of the Property pursuant to this
Agreement, or if prior to Closing any one or more of Purchaser's representations
or warranties are breached in any material respect, and such default or breach
is not cured by the earlier of the third (3rd) business day after written notice
thereof from Seller or the Closing Date (except no notice or cure period shall
apply if Purchaser fails to consummate the purchase of the Property hereunder),
then INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation, shall be
liable to Seller for any and all claims, demands, liabilities (including strict
liability), losses, damages (including consequential damages), causes of action,
judgments, penalties, fines, costs and expenses (including fees, costs and
expenses of attorneys, consultants, contractors, experts and laboratories), of
any and every kind of character, contingent or otherwise, matured or unmatured,
known or unknown, forseeable or unforeseeable, whether or not ultimately
defeated, and the settlement of any claim or judgment including all value paid
or given in settlement as a result of such default. Notwithstanding anything in
this SECTION 10.1 or in EXHIBIT I to the contrary, in the event of Purchaser's
default or a termination of this Agreement, Seller shall have all remedies
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available at law or in equity in the event Purchaser or any party related to or
affiliated with Purchaser is asserting any claims or right to the Property that
would otherwise delay or prevent Seller from having clear, indefeasible and
marketable title to the Property, and in said event Seller shall not be required
to submit such matter to arbitration as contemplated by EXHIBIT I. If Closing is
consummated, Seller shall have all remedies available at law or in equity in the
event Purchaser fails to perform any obligation of Purchaser under this
Agreement not cured by Purchaser within three (3) business days after written
notice from Seller to Purchaser of the breach of the Obligation. The obligations
of Inland Real Estate Acquisitions, Inc. set forth in this SECTION 10.1 shall be
an obligation of Inland Real Estate Acquisitions, Inc., which expressly survive
Closing hereunder.
10.2 PURCHASER'S REMEDIES. If Seller fails to consummate the sale of
the Property pursuant to this Agreement or otherwise defaults on its obligations
hereunder at or prior to Closing for any reason except failure by Purchaser to
perform hereunder, or if prior to Closing any one or more of Seller's
representations or warranties are breached in any material respect, and such
default or breach is not cured by the earlier of the third (3rd) business day
after written notice thereof from Purchaser or the Closing Date (Purchaser
hereby agreeing to give such written notice to Seller within five business days
after Purchaser first learns of any such default or breach by Seller, except no
notice or cure period shall apply if Seller fails to consummate the sale of the
Property hereunder), Purchaser shall elect, as its sole remedy, either to (a)
terminate this Agreement by giving Seller timely written notice of such election
prior to or at Closing and recover the Earnest Money, (b) enforce specific
performance to consummate the sale of the Property hereunder, or (c) waive said
failure or breach and proceed to Closing without any reduction in the Purchase
Price. Notwithstanding anything herein to the contrary, Purchaser shall be
deemed to have elected to terminate this Agreement if Purchaser fails to deliver
to Seller written notice of its intent to file a claim or assert a cause of
action for specific performance against Seller on or before thirty business days
following the scheduled Closing Date or, having given such notice, fails to
commence an arbitration resolution of the dispute in accordance with the
requirements hereof following the scheduled Closing Date. Purchaser's remedies
shall be limited to those described in this SECTION 10.2 and SECTIONS 10.3 and
10.4 hereof. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS,
SHAREHOLDERS, OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF
THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE ANY LIABILITY
FOR ANY CLAIM, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE,
EQUITY OR OTHERWISE.
10.3 ATTORNEYS' FEES. In the event either party hereto employs an
attorney in connection with claims by one party against the other arising from
the operation of this Agreement, the non-prevailing party shall pay the
prevailing party all reasonable fees and expenses, including attorneys' fees,
incurred in connection with such claims.
10.4 OTHER EXPENSES. If this Agreement is terminated due to the default
of a party, then the defaulting party shall pay any fees or charges due to
Escrow Agent for holding the Earnest Money as well as any escrow cancellation
fees or charges and any fees or charges due to the Title Company for preparation
and/or cancellation of the Title Commitment.
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ARTICLE 11
DISCLAIMERS. RELEASE AND INDEMNITY
11.1 DISCLAIMERS BY SELLER. Except as expressly set forth in this
Agreement, it is understood and agreed that Seller and Seller's agents or
employees have not at any time made and are not now making, and they
specifically disclaim, any warranties, representations or guaranties of any kind
or character, express or implied, with respect to the Property, including, but
not limited to, warranties, representations or guaranties as to (a) matters of
title (other than Seller's special warranty of title to be contained in the
Deed), (b) environmental matters relating to the Property or any portion
thereof, including, without limitation, the presence of Hazardous Materials in,
on, under or in the vicinity of the Property, (c) geological conditions,
including, without limitation, subsidence, subsurface conditions, water table,
underground water reservoirs, limitations regarding the withdrawal of water, and
geologic faults and the resulting damage of past and/or future faulting, (d)
whether, and to the extent to which the Property or any portion thereof is
affected by any stream (surface or underground), body of water, wetlands, flood
prone area, flood plain, floodway or special flood hazard, (e) drainage, (f)
soil conditions, including the existence of instability, past soil repairs, soil
additions or conditions of soil fill, or susceptibility to landslides, or the
sufficiency of any undershoring, (g) the presence of endangered species or any
environmentally sensitive or protected areas, (h) zoning or building
entitlements to which the Property or any portion thereof may be subject, (i)
the availability of any utilities to the Property or any portion thereof
including, without limitation, water, sewage, gas and electric, (j) usages of
adjoining property, (k) access to the Property or any portion thereof, (l) the
value, compliance with the plans and specifications, size, location, age, use,
design, quality, description, suitability, structural integrity, operation,
title to, or physical or financial condition of the Property or any portion
thereof, or any income, expenses, charges, liens, encumbrances, rights or claims
on or affecting or pertaining to the Property or any part thereof, (m) the
condition or use of the Property or compliance of the Property with any or all
past, present or future federal, state or local ordinances, rules, regulations
or laws, building, fire or zoning ordinances, codes or other similar laws, (n)
the existence or non-existence of underground storage tanks, surface
impoundments, or landfills, (o) any other matter affecting the stability and
integrity of the Property, (p) the potential for further development of the
Property, (q) the merchantability of the Property or fitness of the Property for
any particular purpose, (r) the truth, accuracy or completeness of the Property
Documents, (s) tax consequences, or (t) any other matter or thing with respect
to the Property.
11.2 SALE "AS IS, WHERE IS". Purchaser acknowledges and agrees that
upon Closing, Seller shall sell and convey to Purchaser and Purchaser shall
accept the Property "AS IS, WHERE IS, WITH ALL FAULTS," except to the extent
expressly provided otherwise in this Agreement and any document executed by
Seller and delivered to Purchaser at Closing. Except as expressly set forth in
this Agreement, Purchaser has not relied and will not rely on, and Seller has
not made and is not liable for or bound by, any express or implied warranties,
guarantees, statements, representations or information pertaining to the
Property or relating thereto (including specifically, without limitation,
Property information packages distributed with respect to the Property) made or
furnished by Seller, or any property manager, real estate broker, agent or third
party representing or purporting to represent Seller, to whomever made or given,
directly or indirectly, orally or in writing. Purchaser represents that it is a
knowledgeable, experienced and sophisticated purchaser of real estate and that,
except as expressly set forth in
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this Agreement, it is relying solely on its own expertise and that of
Purchaser's consultants in purchasing the Property and shall make an independent
verification of the accuracy of any documents and information provided by
Seller. Purchaser will conduct such inspections and investigations of the
Property as Purchaser deems necessary, including, but not limited to, the
physical and environmental conditions thereof, and shall rely upon same. By
failing to terminate this Agreement prior to the expiration of the Inspection
Period, Purchaser acknowledges that Seller has afforded Purchaser a full
opportunity to conduct such investigations of the Property as Purchaser deemed
necessary to satisfy itself as to the condition of the Property and the
existence or non-existence or curative action to be taken with respect to any
Hazardous Materials on or discharged from the Property, 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.
Upon Closing, Purchaser shall assume the risk that adverse matters, including,
but not limited to, adverse physical or construction defects or adverse
environmental, health or safety conditions, may not have been revealed by
Purchaser's inspections and investigations. Purchaser hereby represents and
warrants to Seller that: (a) Purchaser is represented by legal counsel in
connection with the transaction contemplated by this Agreement; and (b)
Purchaser is purchasing the Property for business, commercial, investment or
other similar purpose and not for use as Purchaser's residence. Purchaser waives
any and all rights or remedies it may have or be entitled to, deriving from
disparity in size or from any significant disparate bargaining position in
relation to Seller.
11.3 SELLER RELEASED FROM LIABILITY. Purchaser acknowledges that it
will have the opportunity to inspect the Property during the Inspection Period,
and during such period, observe its physical characteristics and existing
conditions and the opportunity to conduct such investigation and study on and of
the Property and adjacent areas as Purchaser deems necessary, and Purchaser
hereby FOREVER RELEASES AND DISCHARGES Seller from all responsibility and
liability, including without limitation, liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C.
Sections 9601 et seq.), as amended ("CERCLA"), regarding the condition,
valuation, salability or utility of the Property, or its suitability for any
purpose whatsoever (including, but not limited to, with respect to the presence
in the soil, air, structures and surface and subsurface waters, of Hazardous
Materials or other materials or substances that have been or may in the future
be determined to be toxic, hazardous, undesirable or subject to regulation and
that may need to be specially treated, handled and/or removed from the Property
under current or future federal, state and local laws, regulations or
guidelines, and any structural and geologic conditions, subsurface soil and
water conditions and solid and hazardous waste and Hazardous Materials on,
under, adjacent to or otherwise affecting the Property). Purchaser further
hereby WAIVES (and by Closing this transaction will be deemed to have WAIVED)
any and all objections and complaints (including, but not limited to, federal,
state and local statutory and common law based actions, and any private right of
action under any federal, state or local laws, regulations or guidelines to
which the Property is or may be subject, including, but not limited to, CERCLA)
concerning the physical characteristics and any existing conditions of the
Property. Purchaser further hereby assumes the risk of changes in applicable
laws and regulations relating to past, present and future environmental
conditions on the Property and the risk that adverse physical characteristics
and conditions, including, without limitation, the presence of Hazardous
Materials or other contaminants, may not have been revealed by its
investigation. Notwithstanding the foregoing,
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Purchaser is not assuming responsibility for any environmental condition which
occurred during the term of Seller's ownership of which Seller had actual
knowledge and failed to disclose to Purchaser either through the terms and
provisions of this Agreement or through the Environmental Reports which
Purchaser was provided and/or obtained in the course of its due diligence.
11.4 "HAZARDOUS MATERIALS" DEFINED. For purposes hereof, "HAZARDOUS
MATERIALS" means "Hazardous Material," "Hazardous Substance," "Pollutant or
Contaminant," and "Petroleum" and "Natural Gas Liquids," as those terms are
defined or used in Section 101 of CERCLA, and any other substances regulated
because of their effect or potential effect on public health and the
environment, including, without limitation, PCBs, lead paint, asbestos, urea
formaldehyde, radioactive materials, putrescible materials, and infectious
materials.
11.5 INDEMNITY. Purchaser agrees to indemnify, defend and hold Seller
harmless of and from any and all liabilities, claims, demands, and expenses of
any kind or nature which arise or accrue after Closing and which are in any way
related to the ownership, maintenance, or operation of the Property by Purchaser
and its successors and assigns, including, without limitation, in connection
with Hazardous Materials.
11.6 SURVIVAL. The terms and conditions of this ARTICLE 11 shall
expressly survive the Closing, not merge with the provisions of any closing
documents and shall be incorporated into the Deed.
Purchaser acknowledges and agrees that the disclaimers and other
agreements set forth herein are an integral part of this Agreement and that
Seller would not have agreed to sell the Property to Purchaser for the Purchase
Price without the disclaimers and other agreements set forth above.
ARTICLE 12
MISCELLANEOUS
12.1 PARTIES BOUND: ASSIGNMENT. This Agreement, and the terms,
covenants, and conditions herein contained, shall inure to the benefit of and be
binding upon the heirs, personal representatives, successors, and assigns of
each of the parties hereto. Purchaser may assign its rights under this Agreement
upon the following conditions: (a) the assignee of Purchaser must be an entity
controlling, controlled by, or under common control with Purchaser, (b) all of
the Earnest Money must have been delivered in accordance herewith, (c) the
Inspection Period shall be deemed to have ended, (d) the assignee of Purchaser
shall assume all obligations of Purchaser hereunder, but Purchaser shall remain
primarily liable for the performance of Purchaser's obligations, including,
without limitation, all matters under SECTION 10.1 above, (e) a copy of the
fully executed written assignment and assumption agreement shall be delivered to
Seller at least ten days prior to Closing, and (f) the requirements in SECTION
12.17 are satisfied.
12.2 HEADINGS. The article, section, subsection, paragraph and/or other
headings of this Agreement are for convenience only and in no way limit or
enlarge the scope or meaning of the language hereof.
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12.3 INVALIDITY AND WAIVER. If any portion of this Agreement is held
invalid or inoperative, then so far as is reasonable and possible the remainder
of this Agreement shall be deemed valid and operative, and, to the greatest
extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce
against the other any term or provision of this Agreement shall not be deemed to
be a waiver of such party's right to enforce against the other party the same or
any other such term or provision in the future.
12.4 GOVERNING LAW. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the law of the state in
which the Real Property is located.
12.5 SURVIVAL. The provisions of this Agreement that contemplate
performance after the Closing and the obligations of the parties not fully
performed at the Closing (other than any unfulfilled closing conditions which
have been waived or deemed waived by the other party) shall survive the Closing
and shall not be deemed to be merged into or waived by the instruments of
Closing.
12.6 ENTIRETY AND AMENDMENTS. This Agreement embodies the entire
agreement between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought. All Exhibits attached hereto are incorporated herein by
this reference for all purposes.
12.7 TIME. Time is of the essence in the performance of this Agreement.
12.8 CONFIDENTIALITY. Purchaser shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before or after the Closing, without the prior written specific
consent of Seller; provided, however, that Purchaser may, subject to the
provisions of SECTION 4.7, make disclosure of this Agreement to its Permitted
Outside Parties as necessary to perform its obligations hereunder and as may be
required under laws or regulations applicable to Purchaser. Following the
Closing, Purchaser may make a public announcement or disclosure so long as such
public announcement or disclosure to parties other than the Permitted Outside
Parties does not disclose the Purchase Price paid or other financial terms.
12.9 NO ELECTRONIC TRANSACTIONS. The parties hereby acknowledge and
agree this Agreement shall not be executed, entered into, altered, amended or
modified by electronic means. Without limiting the generality of the foregoing,
the parties hereby agree the transactions contemplated by this Agreement shall
not be conducted by electronic means, except as specifically set forth in the
"Notices" section of this Agreement.
12.10 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the addresses set forth in SECTION
1.3. Any such notices shall, unless otherwise provided herein, be given or
served (a) by depositing the same in the United States mail, postage paid,
certified and addressed to the party to be notified, with return receipt
requested, (b) by overnight delivery using a nationally recognized overnight
courier, (c) by
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personal delivery, (d) by facsimile transmission during normal business hours
with a confirmation copy delivered by another method permitted under this
SECTION 12.10, or (e) by electronic mail addressed to the electronic mail
address set forth in SECTION 1.3 for the party to be notified with a
confirmation copy delivered by another method permitted under this SECTION
12.10. Notice given in accordance herewith for all permitted forms of notice
other than by electronic mail, shall be effective upon the earlier to occur of
actual delivery to the address of the addressee or refusal of receipt by the
addressee. Notice given by electronic mail in accordance herewith shall be
effective upon the entrance of such electronic mail into the information
processing system designated by the recipient's electronic mail address. Except
for facsimile and electronic mail notices as described above, no notice
hereunder shall be effective if sent or delivered by electronic means. In no
event shall this Agreement be altered, amended or modified by electronic mail or
electronic record. A party's address may be changed by written notice to the
other party; provided, however, that no notice of a change of address shall be
effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. Notices given by counsel to
the Purchaser shall be deemed given by Purchaser and notices given by counsel to
the Seller shall be deemed given by Seller.
12.11 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and agree that the normal rule
of construction - to the effect that any ambiguities are to be resolved against
the drafting party - shall not be employed in the interpretation of this
Agreement or any exhibits or amendments hereto.
12.12 CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the
Property is located, in which event the period shall run until the end of the
next day which is neither a Saturday, Sunday, or legal holiday. The last day of
any period of time described herein shall be deemed to end at 5:00 p.m. local
time in the state in which the Real Property is located.
12.13 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of such counterparts shall constitute one Agreement. To facilitate execution of
this Agreement, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages, provided that executed originals thereof
are forwarded to the other party on the same day by any of the delivery methods
set forth in SECTION 12.9 other than facsimile.
12.14 NO RECORDATION. Without the prior written consent of Seller, there
shall be no recordation of either this Agreement or any memorandum hereof, or
any affidavit pertaining hereto, and any such recordation of this Agreement or
memorandum or affidavit by Purchaser without the prior written consent of Seller
shall constitute a default hereunder by Purchaser, whereupon Seller shall have
the remedies set forth in SECTION 10.1 hereof. In addition to any such remedies,
Purchaser shall be obligated to execute an instrument in recordable form
releasing this Agreement or memorandum or affidavit, and Purchaser's obligations
pursuant to this SECTION 12.14 shall survive any termination of this Agreement
as a surviving obligation.
PURCHASE AND SALE AGREEMENT -North Ranch Pavilions, Thousand Oaks, California -
Page 29
<Page>
12.15 FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by either
party at Closing, each party agrees to perform, execute and deliver, but without
any obligation to incur any additional liability or expense, on or after the
Closing any further deliveries and assurances as may be reasonably necessary to
consummate the transactions contemplated hereby or to further perfect the
conveyance, transfer and assignment of the Property to Purchaser.
12.16 DISCHARGE OF OBLIGATIONS. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
12.17 ERISA. Under no circumstances shall Purchaser have the right to
assign this Agreement to any person or entity owned or controlled by an employee
benefit plan if Seller's sale of the Property to such person or entity would, in
the reasonable opinion of Seller's ERISA advisors or consultants, create or
otherwise cause a "prohibited transaction" under ERISA. In the event Purchaser
assigns this Agreement or transfers any ownership interest in Purchaser, and
such assignment or transfer would make the consummation of the transaction
hereunder a "prohibited transaction" under ERISA and necessitate the termination
of this Agreement then, notwithstanding any contrary provision which may be
contained herein, Seller shall have the right to terminate this Agreement.
12.18 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing, except that a tenant of the Property may enforce Purchaser's indemnity
obligation under SECTION 4.10 hereof.
12.19 REPORTING PERSON. Purchaser and Seller hereby designate the Title
Company as the "reporting person" pursuant to the provisions of Section 6045(e)
of the Internal Revenue Code of 1986, as amended.
12.20 MANDATORY ARBITRATION. The parties have agreed to submit disputes
to mandatory arbitration in accordance with the provisions of EXHIBIT I attached
hereto and made a part hereof for all purposes. Each of Seller and Purchaser
waives the right to commence an action in connection with this Agreement in any
court and expressly agrees to be bound by the decision of the arbitrators
determined in EXHIBIT I attached hereto. The waiver of this SECTION 12.20 will
not prevent Seller or Purchaser from commencing an action in any court for the
sole purposes of enforcing the obligation of the other party to submit to
binding arbitration or the enforcement of an award granted by arbitration herein
or as expressly permitted by SECTION 10.1 hereof.
12.21 LIKE-KIND EXCHANGE. Purchaser may consummate the purchase of the
Property as part of a so-called like-kind exchange (the "EXCHANGE") pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended, provided that (a)
Purchaser shall notify Seller in writing no
PURCHASE AND SALE AGREEMENT -North Ranch Pavilions, Thousand Oaks, California -
Page 30
<Page>
later than ten days before Closing that it intends to consummate this
transaction as part of an Exchange, and shall provide with such notice all
material information relating to the parties and properties to the Exchange; (b)
all costs, fees, and expenses attendant to the Exchange shall be the sole
responsibility of Purchaser, and Purchaser shall indemnify and hold harmless
Seller from and against any such costs, fees, and expenses; (c) the Closing
shall not be delayed or affected by reason of the Exchange nor shall the
consummation or accomplishment of the Exchange be a condition precedent or
condition subsequent to Purchaser's obligations and covenants under this
Agreement; and (d) Seller shall not be required to acquire or hold title to any
real property other than the Property for purposes of consummating the Exchange.
Purchaser agrees to defend, indemnify and hold Seller harmless from any
liability, damages, or costs, including (without limitation) reasonable
attorneys' fees, that may result from Seller's acquiescence to the Exchange.
Seller shall not, by this Agreement or acquiescence to the Exchange, (1) have
its rights under this Agreement, including (without limitation) those that
survive Closing, affected or diminished in any manner or (2) be responsible for
compliance with or be deemed to have warranted to Purchaser that the Exchange in
fact complies with Section 1031 of the Internal Revenue Code of 1986, as
amended. The terms of this Section shall survive Closing.
12.22 POST-CLOSING AUDIT. Seller acknowledges that subsequent to
Closing, Purchaser desires to conduct an audit of operating records for the
Property for the calendar year ended on December 31 immediately prior to the
Closing or if Closing occurs in calendar year 2003 for the portion of calendar
2002 that the Seller owned the Property. Seller agrees to reasonably cooperate
with Purchaser, without incurring additional costs, and make available for
review such Property Information not previously provided to Purchaser that is
necessary for such audit, to the extent such Property Information in the
possession of Seller or its property management company. Prior to Closing,
Purchaser shall provide to Seller the list of information Purchaser will need in
order to accomplish such audit.
[SIGNATURE PAGES AND EXHIBITS TO FOLLOW]
PURCHASE AND SALE AGREEMENT -North Ranch Pavilions, Thousand Oaks, California -
Page 31
<Page>
SIGNATURE PAGE TO AGREEMENT OF
PURCHASE AND SALE
BY AND BETWEEN
CH REALTY II/NORTH RANCH, L.P.
AND
INLAND REAL ESTATE ACQUISITIONS, INC.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written below.
SELLER:
CH REALTY II/NORTH RANCH, L.P.,
a Delaware limited partnership
By: CH Realty II/Retail GP, L.L.C.,
a Delaware limited liability company,
its General Partner
By: Crow Holdings Managers, L.L.C.,
a Texas limited liability company,
its Manager
Date executed by Seller By: /s/ Robert A. McClain
-----------------------------
12-17-03 Name: Robert A. McClain
- ----------------------- ---------------------------
Title: Vice President
--------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
Date executed by Purchaser By: /s/ Joseph Cosenza
----------------------------------------
Dec 16, 2003 Name: JOSEPH COSENZA
- ------------- --------------------------------------
Title: PRESIDENT
-------------------------------------
PURCHASE AND SALE AGREEMENT -North Ranch Pavilions, Thousand Oaks, California -
Page 32
<Page>
LIST OF EXHIBITS
A - Legal Description of Real Property
B - Special Warranty Deed
C-1 - Bill of Sale, Assignment and Assumption of Contracts
C-2 - Assignment and Assumption of Leases
D - FIRPTA Certificate
E - ERISA Letter
F - Notice to Tenants
G-1 - Tenant Estoppel Certificate
G-2 - Declaration Estoppel
H - List of Tenants
I - Mandatory Arbitration
J - Required Endorsements
PURCHASE AND SALE AGREEMENT -North Ranch Pavilions, Thousand Oaks, California -
Page 33
<Page>
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A
Parcels 3 through 6, inclusive, as shown on a Parcel Map LD-591, in the City of
Thousand Oaks, County of Ventura, State of California, filed May 21, 1990 in
Book 50, Pages 1 and 2 of Parcel Maps in the Office of the county Recorder of
said county.
Except all oil, gas and other hydrocarbon substances lying within and under that
portion of said land lying below a dept of 500 feet measured vertically from the
surface of said land, without, however, any right to enter upon the surface of
said land nor into that portion of the subsurface thereof lying above a depth of
500 feet measured vertically from said surface.
PARCEL B
Lot 162 of Tract 3507-3 in the City of Thousand Oaks, County of Ventura, State
of California, as per map recorded in Book 96, Pages 77 to 85 inclusive of maps,
in the Office of the County Recorder of said county.
Except all oil, gas and other hydrocarbon substances lying within and under that
portion of said land lying below a dept of 500 feet measured vertically from the
surface of said land, without, however, any right to enter upon the surface of
said land nor into that portion of the subsurface thereof lying above a depth of
500 feet measured vertically from said surface.
PARCEL C
Those interests retained for ingress and egress and specifically described as
Strips "A", "B" and "C" as contained in that certain map filed May 21, 1990 in
Book 50, Pages 1 and 2 of Parcel Maps in the Office of the County Recorder of
said county.
EXHIBIT A, Legal Description - Page 1
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT B
SPECIAL WARRANTY DEED
THE STATE OF _________ Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ___________ Section
________________________, a _____________________ ("GRANTOR"), for and in
consideration of the sum of $10.00 and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, has GRANTED,
BARGAINED, SOLD, and CONVEYED and by these presents does GRANT, BARGAIN, SELL,
and CONVEY unto __________________, a __________________ ("GRANTEE") the tract
or parcel of land in __________ County, ____________, described in EXHIBIT A,
together with all rights, titles, and interests appurtenant thereto including,
without limitation, Grantor's interest, if any, in any and all adjacent streets,
alleys, rights of way and any adjacent strips and gores (such land and interests
are hereinafter collectively referred to as the "PROPERTY").
This Special Warranty Deed and the conveyance hereinabove set forth is
executed by Grantor and accepted by Grantee subject to all easements,
restrictions, reservations and covenants now of record and further subject to
all matters that a current, accurate survey of the Property would show [WILL ADD
SPECIFIC REFERENCE ONCE SURVEY IS IDENTIFIED], together with the matters
described in EXHIBIT B attached hereto and incorporated herein by this
reference, to the extent the same are validly existing and applicable to the
Property (hereinafter referred to collectively as the "PERMITTED EXCEPTIONS").
Grantee acknowledges that Grantee has independently and personally
inspected the Property. The Property is hereby conveyed to and accepted by
Grantee in its present condition, "AS IS, WITH ALL FAULTS, AND WITHOUT ANY
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED." Notwithstanding anything contained
herein to the contrary, it is understood and agreed that Grantor and Grantor's
agents or employees have never made and are not now making, and they
specifically disclaim, any warranties, representations or guaranties of any kind
or character, express or implied, oral or written, with respect to the Property,
including, but not limited to, warranties, representations or guaranties as to
(a) matters of title (other than Grantor's warranty of title set forth herein),
(b) environmental matters relating to the Property or any portion thereof,
including, without limitation, the presence of Hazardous Materials (as defined
in the purchase and sale agreement, the "SALE AGREEMENT" between Grantor and
Grantee) in, on, under or in the vicinity of the Property, (c) geological
conditions, including, without limitation, subsidence, subsurface conditions,
water table, underground water reservoirs, limitations regarding the withdrawal
of water, and geologic faults and the resulting damage of past and/or future
faulting, (d) whether, and to the extent to which the Property or any portion
thereof is affected by any stream (surface or underground), body of water,
wetlands, flood prone area, flood plain, floodway or special flood hazard, (e)
drainage, (f) soil conditions, including the
EXHIBIT B, Special Warranty Deed - Page 1
<Page>
existence of instability, past soil repairs, soil additions or conditions of
soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (g) the presence of endangered species or any environmentally
sensitive or protected areas, (h) zoning or building entitlements to which the
Property or any portion thereof may be subject, (i) the availability of any
utilities to the Property or any portion thereof including, without limitation,
water, sewage, gas and electric, (j) usages of adjoining property, (k) access to
the Property or any portion thereof, (l) the value, compliance with the plans
and specifications, size, location, age, use, design, quality, description,
suitability, structural integrity, operation, title to, or physical or financial
condition of the Property or any portion thereof, or any income, expenses,
charges, liens, encumbrances, rights or claims on or affecting or pertaining to
the Property or any part thereof, (m) the condition or use of the Property or
compliance of the Property with any or all Regulation federal, state or local
ordinances, rules, regulations or laws, building, fire or zoning ordinances,
codes or other similar laws, (n) the existence or non-existence of underground
storage tanks, surface impoundments, or landfills, (o) any other matter
affecting the stability and integrity of the Property, (p) the potential for
further development of the Property, (q) the merchantability of the Property or
fitness of the Property for any particular purpose, (r) the truth, accuracy or
completeness of the Property Documents, (s) tax consequences, or (t) any other
matter or thing with respect to the Property other than as set forth in the Sale
Agreement and subject to the limitations set forth therein. EXCEPT AS EXPRESSLY
SET FORTH HEREIN OR IN THE SALE AGREEMENT, GRANTOR MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND TO GRANTEE, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL
CONDITION OF THE PROPERTY, OR THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE OR OF
MERCHANTABILITY. GRANTEE IS RELYING ON ITS INVESTIGATIONS OF THE PROPERTY IN
DETERMINING WHETHER TO ACQUIRE IT. THE PROVISIONS OF THIS PARAGRAPH ARE A
MATERIAL PART OF THE CONSIDERATION FOR GRANTOR EXECUTING THIS SPECIAL WARRANTY
DEED, AND SHALL SURVIVE CLOSING.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereunto in anywise belonging, unto Grantee, its
successors and assigns forever, and Grantor does hereby bind itself, its
successors and assigns, to WARRANT AND FOREVER DEFEND all and singular the title
to the Property unto the said Grantee, its successors and assigns against every
person whomsoever lawfully claiming or to claim the same or any part thereof by,
through, or under Grantor but not otherwise, subject to the Permitted
Exceptions.
Grantee's address is: ________________________.
EXECUTED as of ________________________, 200__.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT B, Special Warranty Deed - Page 2
<Page>
THE STATE OF ____________ Section
Section
COUNTY OF _________________ Section
This instrument was acknowledged before me on _______________, 200___, by
__________________, ______________ of __________________, a ___________________,
on behalf of said _____________________.
Notary Public, State of __________________
EXHIBIT B, Special Warranty Deed - Page 3
<Page>
EXHIBIT A
[Description of the Property]
EXHIBIT B, Special Warranty Deed - Page 4
<Page>
EXHIBIT B
[Permitted Exceptions]
EXHIBIT B, Special Warranty Deed - Page 5
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT C-1
BILL OF SALE, ASSIGNMENT AND ASSUMPTION OF CONTRACTS
North Ranch Pavilions, Thousand Oaks, California
THIS BILL OF SALE, ASSIGNMENT AND ASSUMPTION OF CONTRACTS is made as of
the _______ day of ___________________, _________, by and between
_________________________, a ____________________ ("ASSIGNOR"), and
_______________________, a _______________________ ("ASSIGNEE").
W I T N E S S E T H:
For good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
Assignor hereby sells, transfers, assigns and conveys to Assignee the
following:
(a) All right, title and interest of Assignor in and to all
tangible personal property ("PERSONALTY") set forth in the inventory on EXHIBIT
A attached hereto and made a part hereof, and located on, and used in connection
with the management, maintenance or operation of that certain land and
improvements located in the County of __________, State of ___________, as more
particularly described in EXHIBIT B attached hereto and made a part hereof
("REAL PROPERTY"), but excluding tangible personal property owned or leased by
Assignor's contractors under the Contracts (as defined below).
(b) To the extent assignable, all right, title and interest of
Assignor in and to those certain contracts set forth on EXHIBIT C attached
hereto and made a part hereof, and all warranties, guaranties, indemnities and
claims (including, without limitation, for workmanship, materials and
performance) and which exist or may hereafter exist against any contractor,
subcontractor, manufacturer or supplier or laborer or other services relating
thereto (collectively, the "CONTRACTS").
(c) All right, title and interest of Assignor in and to those
agreements set forth on EXHIBIT D attached hereto and made a part hereof (the
"LICENSE AGREEMENTS").
2. This Bill of Sale, Assignment and Assumption of Contracts is given
pursuant to that certain Agreement of Purchase and Sale (as amended, the
"PURCHASE AGREEMENT") dated as of __________________________, between Assignor
and Assignee, providing for, among other things, the conveyance of the
Personalty and the Contracts.
3. As set forth in ARTICLE 11 of the Purchase Agreement, which is
hereby incorporated by reference as if herein set out in full and
except as set forth herein, the property
EXHIBIT C-1, Bill of Sale, Assignment and Assumption of Contracts - Page 1
<Page>
conveyed hereunder is conveyed by Assignor and accepted by Assignee AS IS, WHERE
IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, EXCEPT
AS EXPRESSLY SET FORTH IN THE PURCHASE AGREEMENT, IT BEING THE INTENTION OF
ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE
OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR
MODEL THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY
THE __________ UNIFORM COMMERCIAL CODE.
4. Assignee hereby accepts the assignment of the Personalty, the
Contracts and the License Agreements and agrees to assume and discharge, in
accordance with the terms thereof, all of the obligations thereunder from and
after the date hereof. Additionally, but without limiting the generality of the
foregoing, Assignee agrees to assume and discharge all legal fees and other
costs and expenses incurred with respect to Contracts and Contract renewals and
extensions and License Agreements and License Agreement renewals and extensions
executed subsequent to the Effective Date of the Agreement and those set forth
on EXHIBIT E attached hereto.
5. Assignee agrees to indemnify and hold harmless Assignor from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
6. Assignor agrees to indemnify and hold harmless Assignee from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Contracts or License Agreements, to the extent accruing prior to the
date hereof. Assignor shall be responsible for all reconciliations with
contractors prior to 2003.
7. This Bill of Sale, Assignment and Assumption of Contracts may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Bill of Sale,
Assignment and Assumption of Contracts as of the date first above written.
ASSIGNOR:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT C-1, Bill of Sale, Assignment and Assumption of Contracts - Page 2
<Page>
ASSIGNEE:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
Exhibit A Personalty
Exhibit B Real Property
Exhibit C Contracts
Exhibit D License Agreements
Exhibit E Contract Costs and Expenses
EXHIBIT C-1, Bill of Sale, Assignment and Assumption of Contracts - Page 3
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT C-2
ASSIGNMENT AND ASSUMPTION OF LEASES
North Ranch Pavilions, Thousand Oaks, California
THIS ASSIGNMENT AND ASSUMPTION OF LEASES is made as of the ____ day of
____________, __________, by and between _________________________, a
___________________ ("ASSIGNOR"), and _______________________, a
______________________ ("ASSIGNEE").
W I T N E S S E T H:
For good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby sells, transfers, assigns and conveys to Assignee
all right, title and interest of Assignor in and to those certain leases
described on Exhibit C attached hereto and made a part hereof (the "Tenant
Leases"), relating to the leasing of space in the Real Property and all of the
rights, interests, benefits and privileges of the lessor thereunder, and to the
extent Assignee has not received a credit therefor under the Purchase Agreement
(as defined below), all prepaid rents and security and other deposits held by
Assignor under the Tenant Leases and not credited or returned to tenants, but
subject to all terms, conditions, reservations and limitations set forth in the
Tenant Leases.
2. This Assignment and Assumption of Leases is given pursuant to that
certain Agreement of Purchase and Sale (as amended, the "PURCHASE AGREEMENT")
dated as of _____________________, between Assignor and Assignee, providing
for, among other things, the conveyance of the Personalty and the Tenant Leases.
3. As set forth in ARTICLE 11 of the Purchase Agreement, which is
hereby incorporated by reference as if herein set out in full and except as set
forth herein, the property conveyed hereunder is conveyed by Assignor and
accepted by Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER
NATURE, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE PURCHASE
AGREEMENT, IT BEING THE INTENTION OF ASSIGNOR AND ASSIGNEE EXPRESSLY TO NEGATE
AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES
CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE
PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER
WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE __________ UNIFORM
COMMERCIAL CODE.
EXHIBIT C-2, Assignment and Assumption of Leases - Page 1
<Page>
4. Assignee hereby accepts the assignment of the Personalty and the
Tenant Leases and agrees to assume and discharge, in accordance with the terms
thereof, all of the obligations thereunder from and after the date hereof.
Additionally, but without limiting the generality of the foregoing, Assignee
agrees to assume and discharge all leasing commissions, costs for tenant
improvements, legal fees and other costs and expenses incurred with respect to
Leases and Lease renewals and extensions executed subsequent to the Effective
Date of the Agreement and those set forth on EXHIBIT D attached hereto.
5. Assignee agrees to indemnify and hold harmless Assignor from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the foregoing obligations
arising from and accruing on or after the date hereof.
6. Assignor agrees to indemnify and hold harmless Assignee from any
cost, liability, damage or expense (including attorneys' fees) arising out of or
relating to Assignor's failure to perform any of the obligations of Assignor
under the Tenant Leases to the extent accruing prior to the date hereof.
Assignor shall be responsible for all reconciliations with Tenants prior to
2003.
7. This Assignment and Assumption of Leases may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption of Leases as of the date first above written.
ASSIGNOR:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASSIGNEE:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[INSERT APPROPRIATE ACKNOWLEDGMENTS FOR THE STATE]
EXHIBIT C-2, Assignment and Assumption of Leases - Page 2
<Page>
Exhibit A Personalty
Exhibit B Real Property
Exhibit C Tenant Leases
Exhibit D Lease Costs and Expenses
EXHIBIT C-2, Assignment and Assumption of Leases - Page 3
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT D
FIRPTA CERTIFICATE
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform ________________ ("TRANSFEREE") that withholding of tax is not
required upon the disposition of a U.S. real property interest by _____________
("TRANSFEROR"), the undersigned, in their capacity as ____________ of
___________, but not individually, hereby certifies to Transferee 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 Internal
Revenue Code and Income Tax Regulations);
2. Transferor's U.S. employer identification number is _____________;
and
3. Transferor's office 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 penalties 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 __________, 20___.
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
EXHIBIT D, FIRPTA Certificate - Solo Page
<Page>
THE STATE OF ___________ Section
Section
COUNTY OF _____________ Section
This instrument was acknowledged before me on __________, 200_____, by
__________, _______________ of ________________________, a _____________, on
behalf of said _________________.
Notary Public, State of ___________
SWORN TO AND SUBSCRIBED BEFORE ME by __________________ on
_______________________, 200 _____.
_______________________________________
Notary Public, State of ____________
EXHIBIT D, FIRPTA Certificate - Solo Page
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT E
ERISA LETTER
_____________________, ________
______________________
______________________
______________________
______________________
RE: Acquisition of North Ranch Pavilions in Thousand Oaks, California
Ladies and Gentlemen:
The undersigned represents to you that [PURCHASER], or any affiliates
thereof, or any firm, person or entity providing financing for the purchase of
the entire interest of ____________ in the above-described property (the
"PROPERTY") are not using the assets of an employee benefit plan as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") and covered under Title I, Part 4 of the ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended, in the performance or discharge of
its obligations under that certain Agreement of Purchase and Sale dated
_______________, __________, with respect to the Property by and between
___________________, as Seller, and the undersigned, as Purchaser, including the
acquisition of the Property.
Very truly yours,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT E, ERISA Letter - Solo Page
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT F
NOTICE TO TENANTS
__________________, ________
______________________
______________________
______________________
______________________
Dear Tenant:
You are hereby notified that ____________________ ("SELLER"), the current
owner of North Ranch Pavilions in Thousand Oaks, California (the "PROPERTY") and
the current owner of the landlord's interest in your lease in the Property, has
sold the Property to [PURCHASER] ("NEW OWNER"), as of the above date. In
connection with such sale, Seller has assigned and transferred its interest in
your lease and your security deposit thereunder in the amount of $__________
(the "SECURITY DEPOSIT") to New Owner, and New Owner has assumed and agreed to
perform all of the landlord's obligations under your lease (including any
obligations set forth in your lease or under applicable law to repay or account
for the Security Deposit) from and after such date. New Owner acknowledges that
New Owner has received and is responsible for the Security Deposit.
Accordingly, (a) all your obligations under the lease from and after the
date hereof, including your obligation to pay rent, shall be performable to and
for the benefit of New Owner, its successors and assigns, and (b) all the
obligations of the landlord under the lease, including any obligations
thereunder or under applicable law to repay or account for the Security Deposit,
shall be the binding obligation of New Owner and its successors and assigns.
Unless and until you are otherwise notified in writing by New Owner, the address
of New Owner for all purposes under your lease is:
EXHIBIT F, Notice of Tenants - Page 1
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______________________
______________________
______________________
______________________
Very truly yours,
SELLER:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NEW OWNER:
______________________________________,
a _____________________________________
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F, Notice of Tenants - Page 2
<Page>
[THIS FORM WOULD BE TAILORED TO CALIFORNIA BUT IS REPRESENTATIVE OF FORM]
EXHIBIT G-1
TENANT ESTOPPEL CERTIFICATE
To: _____________, its Successors and Assigns ("Purchaser")
2901 Butterfield Road
Oak Brook, Illinois 60523
___________________________("Lender")
Re: ______________________
______________________
______________________ (the "Property")
Gentlemen:
The following statements are made with the knowledge that you, as
purchaser ("Purchaser"), are relying on them in connection with your purchase of
the Property and the assignment to you of the lease referred to below in
connection therewith, and you and your successors and assigns and successor
owners of the Property, as well as Lender and any other mortgage lender on the
Property and the current Landlord (as hereafter defined) may rely on them for
all purposes.
The undersigned ("Tenant"), being the Tenant under the lease referred to
in Paragraph 1 below and attached hereto as Schedule 1, covering certain
premises ("Leased Premises") at the Property, hereby certifies to you that the
following statements are true, correct and complete as of the date hereof:
1. Tenant is the tenant under a lease (the "Lease") currently with
__________, as landlord ("Landlord"), dated __________, 20___, demising to
Tenant approximately __________ (_________) square feet at the Property, a true,
correct and complete copy of which is attached hereto as Schedule 1. The term
Lease includes all amendments and modifications to the Lease and other
agreements with respect thereto. There have been no amendments, modifications or
other agreements relating to the Lease except as attached hereto on Schedule 1.
Possession of the Leased Premises was delivered to Tenant on ______, ___, 20__.
The initial term of the Lease commenced on ___________, 20 ____, and will expire
on ______, 20 ___, exclusive of unexercised renewal options and extension
options contained in the Lease. There have been no amendments, modifications or
revisions to the Lease, and there are no agreements of any kind between Landlord
and Tenant regarding the Leased Premises, except as provided in
EXHIBIT G, Tenant Estoppel Certificate - Page 1
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the Lease or except as follows: (if none, write "none"): ________________. The
net rentable square footage of the entire shopping center on the Property is
_________ square feet.
2. The Lease has been duly authorized and executed by Tenant and is
in good standing and in full force and effect.
3. Tenant has accepted and is presently occupying the Leased
Premises. Neither the Lease nor any interest in it has been assigned,
transferred, or mortgaged by Tenant, and no sublease, concession agreement or
license covering the Leased Premises, or any portion of the Leased Premises, has
been entered into by Tenant, except as follows: (if none, write "none"):
_______________________
4. Tenant is currently obligated to pay fixed or base rent under the
Lease in the annual amount of _____________________ Dollars ($______), payable
in monthly installments of ___________ Dollars ($_______). Rent has been paid
under the Lease through __________, 20___ and no sums have been prepaid to
Landlord, either as the last month's rent or otherwise, except as follows: (if
none, write "none"): _________________. No sums have been deposited with
Landlord other than _________________ Dollars ($___________) deposited as
security under the Lease. Except as specifically stated in the Lease, Tenant is
entitled to no rent concessions, free rent, allowances or other similar
compensation in connection with renting the Leased Premises. Tenant is currently
paying monthly installments of $_____________ as common area maintenance, tax
and other expense pass-through rentals due under the Lease in addition to the
base rent described above.
5. To Tenant's knowledge, neither Landlord nor Tenant is in default
under the Lease beyond any applicable cure period and, to Tenant's knowledge, no
event has occurred which, with the giving of notice or passage of time, or both,
could result in such a default. Tenant has no knowledge of any setoffs, claims
or defenses to enforcement of the Lease in accordance with its terms.
6. Without limiting the generality of the statement made in
Paragraph 1 above, except as specifically stated in the Lease, Tenant has not
been granted (a) any option to extend the term of the Lease, (b) any option to
expand the Leased Premises or to lease additional space within the Property, (c)
any right of first refusal on any space at the Property, (d) any option or right
of first refusal to purchase the Leased Premises or the Property or any part
thereof, or (e) any option to terminate the Lease prior to its stated
expiration.
7. Neither Tenant nor any guarantor of Tenant is the subject of any
bankruptcy, reorganization, insolvency, readjustment of deft, dissolution or
liquidation proceeding, and to the best knowledge of Tenant no such proceeding
is contemplated or threatened.
EXHIBIT G, Tenant Estoppel Certificate - Page 2
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Executed this _________ day of ___________, 2003.
TENANT
By:
Print Name:
Title:
EXHIBIT G, Tenant Estoppel Certificate - Page 3
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By execution of this Tenant Estoppel Certificate, the undersigned
confirms that it is the guarantor ("Guarantor") of the Lease pursuant to that
certain guaranty ("Guaranty") dated _________, 20__. The Guaranty has not been
amended, modified or released. Neither the Tenant nor the Landlord is in default
of the Lease or the Guaranty, Guarantor, as of the date hereof, has no defenses
to enforcement of the Guaranty and the Guaranty remains in full force and effect
in accordance with its terms.
GUARANTOR:
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
Date:
----------------------------------
EXHIBIT G-1, Tenant Estoppel Certificate - Page 4
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Exhibit A to Tenant Estoppel Certificate
[Lease Agreement and Amendments Thereto, If Any]
EXHIBIT G-1, Tenant Estoppel Certificate - Page 5
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EXHIBIT G-2
DECLARATION ESTOPPEL CERTIFICATE
To: ___________________________, its Successors and Assigns ("Purchaser")
2901 Butterfield Road
Oak Brook, Illinois 60523
_____________________________________("Lender")
Re: _____________________________
_____________________________
_____________________________ (the "Property")
Gentlemen:
Reference is hereby made to that certain Declaration of Establishment of
Protective Covenants, Conditions and Restrictions and Grants of Easements for
the North Ranch Pavilions Shopping Center dated May 8, 1990, executed by EI
Paseo Associates, a California general partnership, predecessor in interest to
WMP IV Real Estate Limited Partnership ("DEVELOPER") and The Vons Companies,
Inc., a Michigan corporation ("VONS"), recorded on May 21, 1990, as Document No.
90-075999, Official Records of Ventura County, California, as amended by that
certain Consent Letter Agreement (for Tempura House Restaurant) dated February
1, 2002 (collectively, the "DECLARATION").
The undersigned does hereby certify that as of the date hereof:
1. The Declaration is in full force and effect and has not been
amended, modified or supplemented.
2. To the best knowledge and belief of the undersigned, there is
neither any default nor any event which, with the passage of time or the giving
of note, or both, would constitute a default by Developer in the performance of
its obligations under the Declaration, and, as of the date hereof, the
undersigned has no claims or disputes against Developer under the Declaration.
3. To the best knowledge and belief of the undersigned, there are no
current default-related credits, offsets or deductions to which it is entitled
under the Declaration.
Executed this ________ day of ___________________, 2003.
______________________________________,
a _____________________________________
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
EXHIBIT G-2, Declaration Estoppel Certificate - Page 1
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EXHIBIT H
LIST OF TENANTS
1. Kristine Skeate and Yanire Brancato, dba Sudore Pilates
2. Lawrence I. Stern and Ilene Stern, dba Ilene's Boutique
3. North Ranch Pizza, LLC, dba Lamppost Pizza
4. Savvy Enterprises, LLC
5. Rustico Food, Inc.
6. Exotic Thai, Inc.
7. Izabele Sagatauskaite, dba North Ranch Dentistry
8. Timithy C. Walton and Debra S. Walton, dba Walton's Portrait Studio
9. Girishkumar C. & Jyotiben, & Nathaniel & Juliet Bautista, dba Clubhouse
Cleaners
10. Rahim Lavi, dba Dance Trends
11. Ferraris Corporation, dba Andi's Hallmark
12. Malibu Gymnastics, Inc.
13. Garabet Balejian and Seta Balejian, dba Seta's Shoes
14. Nazaret Dinkjian and Kelly Dinkjian, dba Two for One Photo
15. Shabbar Hussain and Samina Shabbar Hussain, dba Postal Club
16. Total Body Fitness, Inc.
17. Treasured Memories Scrapbook Store, Inc.
18. Tae Kwon Do Academy, Inc.
19. Craig Camp, dba State Farm
20. Daryle Michael Case and Nhien Thai Case, dba Kay's Nails
21. Roy K. Hollingdrake, dba We Frame It Too
22. Mitsuji Nakamori and Misako Nakamori, dba Sushi-Tei
23. G.E.M.M.M., dba The Prudential California Realty
24. Bank of America, N.A.
25. Kathleen Hendrickson and Wayne Hendrickson, dba Cookies by Design
26. The Vons Companies, Inc.
27. World Savings Bank
EXHIBIT H, List of Tenants - Solo Page
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EXHIBIT I
MANDATORY ARBITRATION
The parties have agreed to submit disputes to mandatory arbitration in
accordance with the following provisions:
1. ARBITRATION.
(a) GENERAL. Any dispute among Seller and Purchaser as to the
interpretation of any provision of this Agreement or the rights and obligations
of any party hereunder shall be resolved through binding arbitration as
hereinafter provided in Los Angeles.
(b) SELECTION OF ARBITRATOR. Any controversy or claim arising
out of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its commercial rules and judgment on the award of the arbitration panel may
be entered in any court having jurisdiction thereof.
Within fifteen (15) days after the commencement of arbitration, each
party shall select one party to act as arbitrator and the two selected shall
select a third arbitrator within ten (10) days of their appointment. If the
arbitrators selected by the parties are unable or fail to agree on a third
arbitrator, the third arbitrator shall be selected by the American Arbitration
Association.
(c) RULES OF ARBITRATION. The arbitrators selected pursuant to
SECTION 1(b) above will establish the rules for proceeding with the arbitration
of the dispute, which will be binding upon all parties to the arbitration
proceeding. The arbitrators may use the rules of AAA for commercial arbitration
but is encouraged to adopt the rules the arbitrators deems appropriate to
accomplish the arbitration in the quickest and least expensive manner possible.
Accordingly, the arbitrators may (1) dispense with any formal rules of evidence
and allow hearsay testimony so as to limit the number of witnesses required, (2)
accept evidence of property values without formal appraisals and upon such
information provided by Seller and Purchaser or other persons and otherwise
minimize discovery procedures as the arbitrators deem appropriate, (3) act upon
their understanding or interpretation of the law on any issue without the
obligation to research the issue or accept or act upon briefs of the issue
prepared by any party, (4) limit the time for presentation of any party's case
as well as the amount of information or number of witnesses to be presented in
connection with any hearing, and (5) impose any other rules which the
arbitrators believe appropriate to effect a resolution of the dispute as quickly
and inexpensively as possible. In any event, the arbitrators (A) shall permit
each side no more than two depositions (including any deposition of experts),
which depositions may not exceed four hours each, one set of ten interrogatories
(inclusive of sub-parts) and one set of five document requests (inclusive of
sub-parts), (B) shall not permit any requests for admissions, (C) shall limit
the hearing, if any, to two days, and (D) shall render his or her decision
within 60 days of the filing of the arbitration.
(d) COSTS OF ARBITRATION. The arbitrators will have the
exclusive authority to determine and award costs of arbitration and the costs
incurred by any party for its attorneys, advisors and consultants.
EXHIBIT I, Mandatory Arbitration - Page 1
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(e) AWARD OF ARBITRATOR. Any award made by the arbitrators
shall be binding on Seller, Purchaser and all parties to the arbitration and
shall be enforceable to the fullest extent of the law.
(f) GOVERNING LAW; ACTUAL DAMAGES; ETC. In reaching any
determination or award, the arbitrators will apply the laws of the state in
which the Property is located. Except as permitted under SECTION 1(d) above, the
arbitrators' award will be limited to actual damages and will not include
punitive or exemplary damages. Nothing contained in this Agreement will be
deemed to give the arbitrators any authority, power or right to alter, change,
amend, modify, add to or subtract from any of the provisions of this Agreement.
All privileges under state and federal law, including, without limitation,
attorney-client, work product and party communication privileges, shall be
preserved and protected. All experts engaged by a party must be disclosed to the
other party within 14 days after the date of notice and demand for arbitration
is given.
EXHIBIT I, Mandatory Arbitration - Page 2
<Page>
EXHIBIT J
REQUIRED ENDORSEMENTS
1) 3.1 zoning (Long Form) and including parking and loading docks
2) Extended Coverage over all of the general exceptions
3) Comprehensive Endorsement including encroachments, setback line
violations and covenants and restrictions
4) Subdivision Endorsement
5) Survey Endorsement (insured property is same as surveyed property)
6) Access Endorsement to publicly dedicated roads
7) Utility Facility Endorsement
8) P.I.N-Single Tax Lot Endorsement
9) Contiguity Endorsement
10) Removal of Creditors Rights Exception Endorsement
11) Removal of Arbitration Clause Endorsement
12) Environmental Lien Endorsement
13) Encroachment Endorsement for any encroachments identified on the survey.
DALLAS_1\3880653\14
21478.50 12/16/2003
EXHIBIT J, Required Endorsements - Page 1