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Exhibit 10.132
THIRD AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE
THIS THIRD AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE (this "Third
Amendment") is made and entered into as of the 26th day of April, 2004, by and
between SEMBLER FAMILY PARTNERSHIP #26, LTD., a Florida limited partnership
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Agreement
for Purchase and Sale dated as of April 12, 2004 (the "Original Agreement"), as
amended by that certain First Amendment to Agreement for Purchase and Sale dated
as of April 19, 2004 (the "First Amendment"), and as further amended by that
certain Second Amendment to Agreement for Purchase and Sale dated as of April
23, 2004 (the "Second Amendment"; and together with the Original Agreement and
the First Amendment, the "Agreement") with respect to certain real property and
all improvements thereon commonly known as North Rivers Shopping Center,
Charleston, South Carolina, and more particularly described in the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals
are, by this reference, incorporated into the text of this Third Amendment as
if fully set forth herein. Initially capitalized terms used but not defined in
this Third Amendment, but defined in the Agreement, shall have the meanings
given to them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 5 of the Original Agreement,
as amended by the First Amendment and the Second Amendment, the Inspection
Period is scheduled to expire on April 26, 2004. Seller and Purchaser hereby
agree that the date upon which the Inspection Period shall expire is hereby
extended from April 26, 2004 until April 27, 2004.
3. CLOSING. Pursuant to Section 11.1 of the Agreement (as amended by
the First Amendment and the Second Amendment), the Closing is scheduled to occur
no later than April 26, 2004. Seller and Purchaser hereby agree that, subject to
satisfaction of all conditions to closing contained in the Agreement (as amended
by the Second Amendment and this Third Amendment), the Closing shall occur on
April 27, 2004, and, accordingly, the Closing Date is hereby extended from April
26, 2004 to April 27, 2004.
4. COUNTERPARTS; FACSIMILE SIGNATURES. This Third Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
5. MISCELLANEOUS. Except to the extent amended, and modified herein,
the Agreement is hereby ratified and confirmed and shall remain in full force
and effect as originally
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written. From and after the date of this Third Amendment, this Third Amendment
shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By: /s/ Michael J. Morau
---------------------------------
Name: Michael J. Morau
--------------------------
Its: Authorized Agent
--------------------------
SELLER:
SEMBLER FAMILY PARTNERSHIP #26,
LTD., a Florida limited partnership
By: SEMBLER RETAIL, INC., its Sole General
Partner
By:
------------------------------
Name:
----------------------
Its:
----------------------
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IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:
----------------------------------
Name:
--------------------------
Its:
--------------------------
SELLER
SEMBLER FAMILY PARTNERSHIP #26,
LTD., a Florida limited partnership
BY: SEMBLER RETAIL, INC., its Sole General
Partner
By: /s/ Gregory S. Sembler
------------------------------
Name: GREGORY S. SEMBLER
----------------------
Its: Sr. Vice President
----------------------
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SECOND AMENDMENT TO
AGREEMENT FOR PURCHASER AND SALE
THIS SECOND AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE (this "Second
Amendment") is made and entered into as of the 23rd day of April, 2004, by and
between SEMBLER FAMILY PARTNERSHIP #26, LTD., a Florida limited partnership
("Seller"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation
("Purchaser").
RECITALS:
A. Seller and Purchaser previously entered into that certain Agreement
for Purchase and Sale dated as of April 12, 2004 (the "Original Agreement"), as
amended by that certain First Amendment to Agreement for Purchase and Sale dated
as of April 19, 2004 (the "First Amendment"; and together with the Original
Agreement, the "Agreement") with respect to certain real property and all
improvements thereon commonly known as North Rivers Shopping Center, Charleston,
South Carolina, and more particularly described in the Agreement.
B. Seller and Purchaser desire to amend the Agreement as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises herein contained, and other good and valuable consideration, Seller and
Purchaser hereby amend the Agreement and agree as follows:
1. INCORPORATION OF RECITALS; DEFINED TERMS. The foregoing Recitals
are, by this reference, incorporated, into the text of this Second Amendment as
if fully set forth herein. Initially capitalized terms used but not defined in
this Second Amendment, but defined in the Agreement, shall have the meanings
given to them in the Agreement.
2. INSPECTION PERIOD. Pursuant to Section 5 of the Original Agreement,
as amended by the First Amendment, the Inspection Period is scheduled to expire
on April 23, 2004. Seller and Purchaser hereby agree that the date upon which
the Inspection Period shall expire is hereby extended from April 23, 2004 until
April 26, 2004.
3. CLOSING. Pursuant to Section 11.1 of the Agreement (as amended by
the First Amendment), the Closing is scheduled to occur no later than April 23,
2004. Seller and Purchaser hereby agree that, subject to satisfaction of all
conditions to closing contained in the Agreement (as amended by this Second
Amendment), the Closing shall occur on April 26, 2004, and, accordingly, the
Closing Date is hereby extended from April 23, 2004 to April 26, 2004.
4. COUNTERPARTS; FACSIMILE SIGNATURES. This Second Amendment may be
executed (a) in any number of counterparts, each of which shall be an original,
and each such counterpart shall constitute but one and the same agreement and
(b) by facsimile which shall be considered and constitute an original, executed
and delivered agreement.
5. MISCELLANEOUS. Except to the extent amended and modified herein, the
Agreement is hereby ratified and confirmed and shall remain in full force and
effect as originally written. From and after the date of this Second Amendment,
this Second Amendment shall be deemed to be a part of the Agreement.
[SIGNATURES ON FOLLOWING PAGE]
NORTHRIVERS-SECOND AMENDMENT TO CONTRACT
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IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC, an Illinois corporation
By: [ILLEGIBLE]
----------------------------------
Name:
--------------------------
Its: SR. VP
--------------------------
SELLER:
SEMBLER FAMILY PARTNERSHIP #26,
LTD., A Florida limited partnership
By: SEMBLER RETAIL, INC., its Sole General
Partner
By:
------------------------------
Name:
----------------------
Its:
----------------------
NORTHRIVERS-SECOND AMENDMENT TO CONTRACT
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IN WITNESS WHEREOF, Seller and Purchaser have hereunto set their hands and
seals as of the day and year first above written.
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
By:
----------------------------------
Name:
--------------------------
Its:
--------------------------
SELLER:
SEMBLER FAMILY PARTNERSHIP #26,
LTD., a Florida limited partnership
BY: SEMBLER RETAIL, INC., its Sole General
Partner
By: /s/ Gregory S. Sembler
------------------------------
Name: Gregory S. Sembler
----------------------
Its: Sr. Vice President
----------------------
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AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT, made and entered into as of this 12th of April,
2004 (this "AGREEMENT"), by and between SEMBLER FAMILY PARTNERSHIP #26, LTD., a
Florida limited partnership (the "SELLER") and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation, or its nominee ("PURCHASER").
W I T N E S S E T H:
In consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
Section 1. PURCHASE AND SALE AGREEMENT.
Subject to the terms and provisions hereof, Seller agrees to sell
to Purchaser, and Purchaser agrees to purchase, the following:
1.1 Those certain parcels of land located at 7250 Rivers
Avenue, in the City of North Charleston, Charleston County, South Carolina, as
more particularly described in EXHIBIT A attached hereto (the "LAND"), together
with all rights, privileges, members, licenses, and easements appurtenant to the
Land (the "PROPERTY"); (ii) the buildings and other retail premises containing
approximately 141,167 square feet in the shopping center known as "North Rivers
Town Center", landscaping and other improvements located within or on the Land
(the "IMPROVEMENTS") and all fixtures attached to the Improvements or located on
the Land that are now or hereafter owned by Seller; (iii) all personal property,
inventory, supplies and rights of Seller, if any, used exclusively in the
maintenance or operation of the Property; (iv) all right, title and interest of
Seller, as "landlord" or "lessor," in and to each lease of land and space within
the Improvements (the "LEASES") and any guaranties and/or warranties associated
with the Improvements (the "GUARANTIES"); and (v) all privileges, remedies,
licenses, and appurtenances to the foregoing, now or hereafter existing and all
other property, right, title or interest, tangible or intangible, personal or
real, or otherwise owned by Seller which is located on the Land or within the
Improvements. The Land and Improvements are depicted on the site plan attached
hereto as EXHIBIT A-1. Expressly excluded from this Agreement and the purchase
and sale hereunder are Outparcel A, ground leased to GMRI, Inc. (Smokey Bones),
Outparcel D, ground leased to Rare Hospitality International, Inc. (Longhorn),
Outparcel F, owned in fee by CEC Entertainment, Inc. (Chuck E Cheese), and the
Target Building, owned in fee by the Target Corporation (Target) (collectively,
the "Excluded Outparcels").
Section 2. EFFECTIVE DATE.
For all purposes herein, the "EFFECTIVE DATE" shall be the date
of execution of this Agreement by Purchaser or Seller, whichever party is the
last to sign, as evidenced by the dates next to each party's signature.
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Section 3. EARNEST MONEY/ESCROW AGREEMENT.
3.1 INITIAL EARNEST MONEY. Contemporaneously with the
execution of this contract, Purchaser has deposited with Chicago Title Insurance
Company, whose address is 171 N. Clark Street, Chicago, Illinois, Attn: Nancy
Castro (the "ESCROW AGENT") the sum of ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00) (the "EARNEST MONEY"). Except to the extent expressly provided to
the contrary in this Agreement, upon the expiration of the Inspection Period,
the Earnest Money shall be deemed "at risk" and non-refundable to Purchaser, but
shall be paid to Seller and credited against the Purchase Price at Closing.
3.2 NATURE OF EARNEST MONEY. All deposits made pursuant hereto
and deposited with Escrow Agent shall constitute the Earnest Money and shall be
held, invested, and disbursed pursuant to the respective terms and provisions
hereof. All interest and other income accrued on the Earnest Money shall be the
property of Purchaser.
3.3 EARNEST MONEY DISBURSEMENTS.
3.3.1 The Earnest Money may be held in an interest
bearing account as Purchaser shall direct by instructions to the Escrow Agent.
None of the interest accruing on the Earnest Money, if any, prior to closing
shall be added to the Earnest Money (the Federal Tax Identification number of
Purchaser is 36-3614035 and of Seller is 01-0583391). The Earnest Money shall be
held, and disbursed, by the Escrow Agent in accordance with the terms of this
Agreement. Unless otherwise herein provided, the Earnest Money shall be applied
to the payment of the Purchase Price at the time of "Closing" (as hereinafter
defined).
3.3.2 The Escrow Agent is acting as a stakeholder only
with respect to the Earnest Money. If there is any dispute as to whether the
Escrow Agent is obligated to deliver the Earnest Money or as to whom the Earnest
Money is to be delivered, the Escrow Agent may refuse to make any delivery, and
may continue to hold the Earnest Money until receipt of an authorization in
writing, signed by both Seller and Purchaser, directing the delivery of the
Earnest Money, or, in the absence of authorization, the Escrow Agent may hold
the Earnest Money until a final determination of the rights of the parties in an
appropriate judicial proceeding. If such written authorization is not given or a
proceeding for such determination is not begun within thirty (30) days of the
last day for the date of the Closing hereunder, the Escrow Agent may bring an
appropriate action or proceeding for leave to deposit the Earnest Money in a
court of competent jurisdiction pending such determination. The Escrow Agent
shall be reimbursed for all costs and expenses of such action or proceeding,
including, without limitation, reasonable attorneys' fees and disbursements, by
the party determined not to be entitled to the Earnest Money. Upon delivery of
the Earnest Money in the manner herein provided, the Escrow Agent shall have no
further liability or obligation hereunder.
Section 4 PURCHASE PRICE.
4.1 PURCHASE PRICE.
4.1.1 The purchase price for the Property shall be
TWENTY MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($20,100,000.00) (the
"PURCHASE PRICE").
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4.1.2 At Closing, Purchaser shall pay the Purchase
Price to Seller, subject to such credits, adjustments and prorations as are
provided for herein, by Federal Funds wire transfer or other immediately
available funds.
4.2 PRORATIONS.
4.2.1. The following shall be apportioned with respect
to the Property as of 12:01 a.m. on the day of Closing (the "PRORATION DATA"),
as if Purchaser were vested with title to the Property during the entire day
upon which Closing occurs:
(a) rents, pursuant to the terms of all
tenant leases (the term "rents" as used in this Agreement includes all payments
due and payable by tenants under the Leases);
(b) taxes (including personal property taxes
on the Personal Property) and assessments levied against the Property; provided,
however, that taxes and assessments with respect to portions of the Property
payable or reimbursable by Tenants in arrears (other than pro rata monthly
payments) shall not be apportioned, except to the extent collected and related
to periods of time after the Closing Date;
(c) gas, electricity and other utility charges
for which Seller is liable, if any, such charges to be apportioned at Closing on
the basis of the most recent meter reading occurring prior to Closing;
(d) charges under the Surviving Service
Contracts (as defined in Section 8.3 herein); and
(e) any other operating expenses or other
items pertaining to the Property which are customarily prorated between a
purchaser and a seller in the area in which the Property is located.
4.2.2. Notwithstanding anything contained in the
foregoing provisions:
(a) At Closing, (i) Seller shall, at Seller's
option, either deliver to Purchaser all security deposits held by Seller
pursuant to the Leases or credit to the account of Purchaser the amount of such
security deposits, and (ii) Purchaser shall, subject to its review and approval
during the Inspection Period, credit to the account of Seller all refundable
cash or other deposits posted with utility companies serving the Property, or,
at Seller's option, Seller shall be entitled to receive and retain such
refundable cash and deposits.
(b) Any taxes paid at or prior to Closing
shall be prorated based upon the amounts actually paid. If taxes and assessments
for the current year have not been paid before Closing, Seller shall be charged
at Closing an amount equal to that portion of such taxes and assessments which
relates to the period before the Proration Date and Purchaser shall pay the
taxes and assessments prior to their becoming delinquent. Any such apportionment
made with respect to a tax year for which the tax rate or assessed valuation, or
both, have not yet been fixed shall be based upon the tax rate and/or assessed
valuation last fixed. To the extent that the actual taxes and assessments for
the current year differ from the amount apportioned at
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Closing, the parties shall make all necessary adjustments by appropriate
payments between themselves following Closing.
(c) Charges referred to in Section 4.2.1
above, which are payable by any tenant to a third party, shall not be
apportioned hereunder, and Purchaser shall accept title subject to any of such
unpaid charges and Purchaser shall look solely to the tenant responsible
therefor for the payment of the same. Subject to Purchaser's review and approval
during the Inspection Period, if Seller shall have paid any of such charges on
behalf of any tenant, and shall not have been reimbursed therefor by the time of
Closing, Purchaser shall credit to Seller an amount equal to all such charges so
paid by Seller.
(d) Seller shall receive the entire advantage
of any discounts for any prepayment made by Seller of any taxes, water rates or
sewer rents applicable to all pre-closing periods.
(e) As to gas, electricity and other utility
charges referred to in Section 4.2.l(c) above, Seller may, after notice to
Purchaser, elect to pay one or more or all of said items accrued to the date
hereinabove fixed for apportionment directly to the person or entity entitled
thereto, and to the extent Seller so elects, such item shall not be apportioned
hereunder, and Seller's obligation to pay such item directly in such case shall
survive the Closing.
(f) The Personal Property, if any, is included
in this sale, without further charge, except that Purchaser shall pay to Seller
the amount of any and all sales or similar taxes payable in connection with the
Personal Property and Purchaser shall execute and deliver any tax returns
required of it in connection therewith, said obligations of Purchaser to survive
Closing.
(g) Purchaser shall be responsible for the
payment of all Tenant Inducement Costs (as hereinafter defined) which become due
and payable (whether before or after Closing) (i) as a result of any renewals or
expansions of existing Leases (approved by Purchaser whose approval shall not be
unreasonably withheld) between the Effective Date of this Agreement and the date
of Closing, and (ii) under any new Leases (approved by Purchaser whose approval
shall not be unreasonably withheld) entered into between the Effective Date of
this Agreement and the date of Closing. At Closing, Seller shall be responsible
for the payment of all Tenant Inducement Costs for Leases that were entered into
by Seller before the Effective Date of this Agreement, and that are not the
result of any renewals or expansions of existing Leases. If, as of the date of
Closing, Seller shall have paid any Tenant Inducement Costs for which Purchaser
is responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. For purposes hereof, the term "Tenant Inducement
Costs" shall mean tenant improvement costs, tenant improvement allowances, and
broker commissions, and shall expressly exclude free rent, if any.
(h) Unpaid and delinquent rent collected by
Seller and Purchaser after the date of Closing shall be delivered as follows:
(i) if Seller collects any unpaid or delinquent rent for the Property, Seller
shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser
any such rent which Purchaser is entitled to hereunder relating to the date of
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Closing and any period thereafter, and (ii) if Purchaser collects any unpaid or
delinquent rent from the Property, Purchaser shall, within fifteen (15) days
after the receipt thereof, deliver to Seller any such rent which Seller is
entitled to hereunder relating to the period prior to the date of Closing.
Seller and Purchaser agree that (iii) all rent received by Seller or Purchaser
within the first fifteen (15) day period after the date of Closing shall be
applied first to delinquent rentals, if any, in the order of their maturity, and
then to current rentals, and (iv) all rent received by Seller or Purchaser after
the first fifteen (15) day period after the date of Closing shall be applied
first to current rentals and then to delinquent rentals, if any, in inverse
order of maturity. Purchaser will make a commercially reasonable effort after
Closing to collect all rents in the usual course of Purchaser's operation of the
Property, but Purchaser will not be obligated to institute any lawsuit or other
collection procedures to collect delinquent rents. Seller may elect itself to
collect any unpaid rents which were due as of the date of Closing by instituting
a lawsuit or other collection procedures and Purchaser agrees to cooperate
reasonably with same at no cost or expense to Purchaser; but Seller shall have
no right to terminate any lease on account of such nonpayment or to commence any
eviction, dispossessory or distraint proceedings with respect thereto. In the
event that there shall be any rents or other charges under any Leases which,
although relating to a period prior to Closing, do not become due and payable
until after Closing or are paid prior to Closing but are subject to adjustment
after Closing (such as percentage rental payments, year end common area expense
reimbursements and the like), then any rents or charges of such type received by
Purchaser or its agents or Seller or its agents subsequent to Closing shall, to
the extent applicable to a period prior to and as of the day of Closing, be
prorated between Seller and Purchaser as of the Proration Date and Seller's
portion thereof shall be remitted promptly to Seller by Purchaser and/or
Purchaser's portion thereof shall be remitted promptly to Purchaser by Seller,
as the case may be.
4.2.3 The provisions of this Section 4 shall survive
Closing.
Section 5. PURCHASER'S INSPECTION.
5.1 INSPECTION. Purchaser shall have until April 19, 2004 (the
"INSPECTION PERIOD"), during which Purchaser shall have the right to enter upon
the Land and Improvements for the purpose of conducting such tests, studies,
surveys and research of the Property as Purchaser shall determine; provided,
however, that Purchaser shall not conduct interviews, speak with or meet with
any tenants under the Leases without a representative of Seller being present
and Purchaser shall strictly comply with Seller's right of entry as "Landlord"
under the Leases so as not to disturb any tenant. Seller shall not be liable or
responsible for any activities of Purchaser upon the Land and Improvements.
Should a lien of any kind be filed against the Land or Improvements by reason of
Purchaser's activities, Purchaser shall have the same canceled and discharged of
record within ten (10) days after actual notice thereof. Purchaser shall, and
does hereby agree to, indemnify, defend and hold Seller harmless from and
against any actions, suits, liens, claims, damages, expenses, losses and
liability arising out of the exercise of any such privileges by Purchaser
(including without limitation, any rights or claims of materialmen or mechanics
to liens on the Property), which indemnity, defense and hold harmless agreement
shall survive Closing hereunder and any termination of this Agreement. Purchaser
shall promptly restore the Land and Improvements to their condition on the date
hereof to the extent practicable after all such tests or surveys. Prior to
Purchaser or any of Purchaser's contractors or consultants entry on to the
Property, Purchaser shall deliver to Seller a certificate of commercial
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general liability insurance covering Purchaser's activities on the Property,
which insurance shall be in form, substance and amounts reasonably satisfactory
to Seller, and the certificate shall evidence that Seller has been named as an
additional insured party on such commercial general liability policy.
5.2 INSPECTION OF DOCUMENTS. The right of inspection described
in Section 5.1 above shall extend to, and include, the right to examine, and
Seller agrees to make available, Seller's tenant files (which shall include all
delinquency reports and any correspondence to or from any tenants). Purchaser
acknowledges that Purchaser has received from Seller the majority of the
documents listed on EXHIBIT B hereto (the "DUE DILIGENCE DOCUMENTS").
Notwithstanding anything contained in this Agreement to the contrary, as to all
of the Due Diligence Documents, Seller makes no representation or warranty
whatsoever as to the accuracy or completeness of any such documents. In
addition, notwithstanding the foregoing, Purchaser acknowledges and agrees that
Seller shall have no obligation to provide to Purchaser certain items of a
confidential nature as well as certain items with respect to the Property which
relate to parties which currently do not have any interest in the Property or
which relate to matters which have been concluded, and none of which items or
matters impose any present or future burden or obligation upon the ownership or
operation of the Property (for example, Seller shall not provide to Purchaser
Seller's files with respect to, or agreements entered into with, prior potential
purchasers of the Property or prior space tenants of the Property, nor shall
Seller provide to Purchaser a copy of Seller's legal files relating to the
Property) except to the extent any of such files bear on the physical or
environmental condition of the Property. Prior to the expiration of the
Inspection Period, the parties agree in good faith to cooperate in delivering,
reviewing and/or requesting any remaining Due Diligence Documents.
5.3 TERMINATION. Purchaser may elect not to purchase the
Property by delivering written notice of termination to Seller and the Escrow
Agent on or before the last day of the Inspection Period. Within five (5)
business days of receipt of any such timely notice, the Escrow Agent shall
return the Earnest Money to Purchaser.
5.4 DELIVERY OF REPORTS AND MATERIALS UPON TERMINATION OF
AGREEMENT. In the event of any termination of this Agreement, Purchaser shall
deliver to Seller the originals or photocopies of all items delivered by Seller
to Purchaser pursuant to the provisions of this Section.
Section 6. TITLE TO THE PROPERTY.
6.1 TITLE EXAMINATION. Seller shall convey to Purchaser at
Closing (i) fee simple title to the Property subject to any matters identified
on Schedule B, Section 2 of any owner's title insurance policy delivered to
Purchaser as part of the Due Diligence Documents and any other items reasonably
approved by Purchaser during the Inspection Period (the "PERMITTED TITLE
EXCEPTIONS"). Purchaser, at Purchaser's expense, shall obtain an ALTA title
commitment for the Property (the "TITLE COMMITMENT") issued by a nationally
recognized and reputable title insurance company (the "TITLE INSURER").
Purchaser may object to any item, exception or other matter shown on the Title
Commitment or Survey (hereinafter defined in Section 7) (the "TITLE
OBJECTIONS"). On or before two (2) business days prior to the expiration of the
Inspection Period (the "OBJECTION PERIOD"). Purchaser shall notify Seller of any
Title
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Objection, which notice shall be accompanied by a copy of the Title Commitment
and Survey and any other materials which evidence or disclose such objections to
title. In the event that Purchaser fails to notify Seller of Title Objections
before the expiration of the Objection Period, then notwithstanding any other
provisions set forth herein, such failure to notify Seller timely shall
constitute a waiver of such right to object to any such defects and this
Agreement shall remain in full force and effect in accordance with its terms.
Within two (2) business days following Seller's receipt of Purchaser's timely
Title Objections, Seller shall notify Purchaser in writing whether or not it
shall cure any of such Title Objections "SELLER'S CURE NOTICE"). If Seller
notifies Purchaser that Seller does not intend to cure a Title Objection,
Purchaser shall have the option of (i) accepting the conveyance of the Property
subject to such Title Objection, or (ii) terminating this Agreement by providing
written notice to Purchaser within two (2) business days following receipt of
Seller's Cure Notice. Unless Purchaser shall elect to terminate this Agreement
in accordance with the preceding sentence, such Title Objections shall be deemed
to be Permitted Title Exceptions. Notwithstanding the foregoing, Purchaser may
object to any matters of title which are reflected in any updated Title
Commitment obtained by Purchaser, provided that any such matter was not shown on
the original date of the Title Commitment. Seller shall have until the latter of
the Closing Date or the date which is thirty (30) days after Seller's receipt of
the Title Objections (in which case the Closing Date may be extended by Seller
to accommodate such cure period), to correct any Title Objections which Seller
shall have agreed to cure in Seller's Cure Notice, but Seller shall only be
required to expend such money and take such other actions as may be necessary to
satisfy and cause to be released of record at the Closing any Title Objections
that are in the nature of a lien or other encumbrance to secure the payment of
money, that arose through the actions of Seller (a "MONETARY LIEN"). If Seller
shall have failed to cure any Title Objections that it affirmatively agreed to
cure within the time allowed by this Section 6.1, then Purchaser, at its option
exercised by written notice may:
6.1.1 terminate this Agreement and, if terminated prior
to the expiration of the Inspection Period, receive a refund of its Earnest
Money; or
6.1.2 waive such Title Objections and proceed to close
the purchase and sale of the Property.
6.1.3 Seller shall have no obligation to cure any Title
Objection(s) that are not Monetary Liens. If Seller notifies Purchaser that
Seller does not intend to attempt to cure any Title Objection; or if, having
commenced attempts to cure any Title Objection, Seller later notifies Purchaser
that Seller will be unable to effect a cure thereof, Purchaser shall, within
five (5) days after such notice has been given, notify Seller in writing whether
Purchaser shall elect to accept the conveyance of the Property subject to such
Title Objection or to terminate this Agreement pursuant to Section 6.1.1 above.
If this Agreement is terminated pursuant to Section 6.1.1, both parties shall be
released from all liabilities and obligations under this Agreement and Escrow
Agent shall refund the Earnest Money to Purchaser.
6.2 ADDITIONAL PERMITTED TITLE EXCEPTIONS. Should Purchaser
accept, by written waiver, its interest in the Property subject to matters in
addition to the Permitted Title Exceptions, such additional matters shall be
deemed to be Permitted Title Exceptions (whether or not such matters were
previously raised as Title Objections).
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6.3 TITLE POLICY. Purchaser, at Purchaser's expense, may
purchase an ALTA owner's policy of title insurance pursuant to which fee simple
title to the Property shall be insured. Seller shall execute a standard form
Owner's Affidavit sufficient to allow the Title Insurer to delete the standard
preprinted exceptions (except those related to survey matters) in Purchaser's
title insurance policy.
Section 7. SURVEY.
7.1 AS-BUILT SURVEY. Seller shall deliver to Purchaser an
ALTA/ACSM survey of the Property (the "SURVEY") performed by a land surveyor
duly registered under the laws of the State of South Carolina. Purchaser may, at
Purchaser's sole cost and expense, update the Survey. The legal description of
the Land as set forth in Seller's owner's policy of title insurance (less and
except the Excluded Outparcels), shall be used in the Limited Warranty Deed
executed and delivered at Closing. The Survey shall be certified substantially
in the form of surveyor's certification set forth herein AS EXHIBIT C attached
hereto and made a part hereof.
7.2 SURVEY TITLE EXPECTATIONS. If the Survey reveals any
matters which are not Permitted Title Exceptions, then Purchaser shall have
those rights and remedies with respect hereto as are set forth in Sections 6.1
and 6.2 above.
Section 8. REPRESENTATIONS AND WARRANTIES
Seller hereby warrants and represents, to the best of Seller's
knowledge (as hereinafter defined) but without any independent inquiry or
investigation, as follows:
8.1 RENT ROLL. Attached hereto as EXHIBIT D is a true, correct
and complete rent roll for the Property received by Seller from Seller's
property manager (the "RENT ROLL").
8.2 LEASES - COMPLETE COPIES AND CERTAIN INFORMATION.
8.2.1 The copies of the fully executed Leases delivered
by Seller to Purchaser are complete and accurate copies of all of the Leases
affecting the Property, all of which are in full force and effect except as
disclosed in writing by Seller to Purchaser, there are no written binding
promises, agreements, understandings, or commitments between Seller and any
tenant of any nature whatsoever other than as set forth in such copies of the
Leases.
8.2.2 Except as shown on the Rent Roll, Seller has not
received any written notice of termination or default under any of the Leases.
8.3 SERVICE CONTRACTS. The maintenance or repair contracts, or
other agreements (excluding the Leases, but including any contracts for the
management of the Improvements) that are in force and effect and affect the
Property or the operation, repair, or maintenance thereof (the "SERVICE
CONTRACTS") are the complete copies of those within Seller's files. At Closing,
Seller will terminate any Service Contracts which by their terms may be
terminated except those which Purchaser elects in its discretion to assume in
writing, and which by their terms may be assigned to Purchaser (the "SURVIVING
SERVICE CONTRACTS"); provided that any Seller contract for management of the
Property shall be terminated effective on the Closing Date.
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8.4 NO LITIGATION. Except as disclosed to Purchaser in
writing, Seller has no actual knowledge of any pending or threatened litigation
or proceeding by any organization, person, individual or governmental agency
against Seller with respect to the Property.
8.5 ASSESSMENTS. No assessments have been made against the
Property that are unpaid (except ad valorem taxes for the current year), whether
or not they have become liens.
8.6 ENVIRONMENTAL MATTERS.
8.6.1 Except as disclosed in (i) the Due Diligence
Documents; (ii) any specific reports or other materials delivered to Purchaser
by Seller or otherwise disclosed to Purchaser in writing, Seller has no actual
knowledge that the Property has ever been used and Seller has not used the
Property, for the disposal, release, handling, treatment, or storage of any
Hazardous Material in any quantity or form that would reasonably necessitate any
corrective action under any Hazardous Material Law. Except as disclosed in
writing by Seller to Purchaser, Seller has received no written notice of pending
or threatened claims, actions, suits, or proceedings related to the Property
regarding (a) the disposal or release of solid, liquid, gaseous waste into the
environment, (b) the treatment, storage, disposal, release or other handling of
any Hazardous Material, (c) the placement of structures or materials into waters
of the United States, or (d) any alleged violation of any Hazardous Material
Law. Except as disclosed in writing to Purchaser, to Seller's knowledge, there
are no underground tanks or any other underground storage facilities located on
the Property. Seller shall and hereby agrees to indemnify Purchaser against, and
agrees to hold Purchaser harmless from and against, any and all losses, costs
and expenses (including, without limitation, attorneys' fees and court costs)
that arise out of or are related to, the failure of the representations
contained in this Section to be true, correct and accurate in all material
respects.
8.6.2 "HAZARDOUS MATERIALS" as such term is used in
this Section means any hazardous or toxic substance, material or waste,
regulated or listed pursuant to any federal, state or local environmental law,
including without limitation, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Comprehensive Environmental Response Compensation
and Liability Act, the Resource Conversation and Recovery Act, the Federal
Insecticide, Fungicide, Rodenticide Act, the Safe Drinking Water Act and the
Occupational Safety and Health Act.
8.7 DISCLOSURES. Any disclosure by Seller of a material change
in any of the representations or warranties made by Seller contained in this
Section 8 shall be in writing and shall be delivered in accordance with Section
16 below. Purchaser agrees to notify Seller in writing within ten (10) days of
the date Purchaser becomes aware of any matter which would cause any
representation or warranty to be untrue in any material respect. Failure by
Purchaser to notify Seller within the aforesaid ten (10) day period shall be
deemed an acceptance by Purchaser of such matter. Should there be any material
adverse change in any representation which results in negative consequences to
the operation and/or ownership of the Property and (i) results from an
occurrence or condition that arises after expiration of the Inspection Period;
(ii) for which proper Disclosure is made by Seller; and (iii) which change did
not arise through an affirmative act of the Seller, Purchaser shall have the
right to terminate this Agreement.
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8.8 KNOWLEDGE DEFINED. References to the "knowledge" of Seller
shall refer only to the actual knowledge of the Designated Employees (as
hereinafter defined) of Seller, and shall not be construed, by imputation or
otherwise, to refer to any property manager, or to any other officer, agent,
manager, representative or employee of Seller or any affiliate thereof or to
impose upon such Designated Employees any duty to investigate the matter to
which such actual knowledge, or the absence thereof, pertains. As used herein,
the term "Designated Employees" shall refer to the following persons: Ron
Wheeler.
8.9 SURVIVAL OF SELLER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller set forth in Section 8 as updated by
any certificate delivered to Purchaser at Closing in accordance with Section 11
hereof, shall survive Closing for a period of six (6) months. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable (a) unless it is determined that any of the foregoing representations
and warranties of Seller were not accurate in any material respect as of the
date hereof or as of the date of Closing, and Seller had "knowledge" (as defined
in this Article 8) of such inaccuracy as of the date hereof, (b) if the breach
in question results from or is based on a condition, state of facts or other
matter which was known to Purchaser prior to Closing, (c) unless the valid
claims for all such breaches collectively aggregate more than Twenty Five
Thousand and 00/100 Dollars ($25,000.00), in which event the full amount of such
claims shall be actionable, and (d) unless written notice containing a
description of the specific nature of such breach shall have been given by
Purchaser to Seller prior to the expiration of said six (6) month period and an
action shall have been commenced by Purchaser against Seller within thirty (30)
days after the termination of the survival period provided for above in this
Section 8.9. Purchaser agrees to first seek recovery under any insurance
policies, service contracts and Leases prior to seeking recovery from Seller,
and Seller shall not be liable to Purchaser if Purchaser's claim is satisfied
from such insurance policies, service contracts or Leases. As used herein, the
term "Cap" shall mean the total aggregate amount of Two Hundred Fifty Thousand
and No/100 ($250,000.00). In no event shall Seller's aggregate liability to
Purchaser for breach of any representation or warranty of Seller in this
Agreement or the certificate to be delivered by Seller at Closing pursuant to
Section 11.2 hereof exceed the amount of the Cap.
8.10 PROPERTY CONVEYED "AS IS". EXCEPT AS EXPRESSLY SET FORTH
HEREIN, IT IS UNDERSTOOD AND AGREED THAT SELLER DISCLAIMS ALL WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO
MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE LIMITED
WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR
ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS, PROPERTY
VALUE, OPERATING HISTORY, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR
ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE PROPERTY. BUYER AGREES
THAT WITH RESPECT TO THE PROPERTY, BUYER HAS NOT RELIED UPON AND WILL NOT RELY
UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR
OF SELLER'S BROKERS, AGENTS, OR EMPLOYEES NOT EXPRESSLY STATED HEREIN. PURCHASER
REPRESENTS THAT IT IS A
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KNOWLEDGEABLE BUYER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN
EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS, AND THAT PURCHASER WILL CONDUCT
SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED
TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME,
AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS. 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, AND,
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE ARE NO ORAL AGREEMENTS, WARRANTIES
OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY
THIRD PARTY (EXCEPT THE LIMITED WARRANTY OF TITLE AND AS SPECIFICALLY SET FORTH
HEREIN). THE TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL EXPRESSLY SURVIVE THE
CLOSING AND NOT MERGE THEREIN.
Section 9. LEASES, GUARANTIES AND SERVICE CONTRACTS.
9.1 PRESERVATION OF LEASES AND OTHER AGREEMENTS. Except as set
forth herein, so long as this Agreement shall not have terminated, Seller shall
not enter into, execute, or otherwise commit to the execution of any Lease,
service agreement or any other agreement with respect to the occupancy, sale or
upkeep of the Improvements or the Land from and after the end of the Effective
Date without Purchaser's consent, which shall not be unreasonably withheld,
delayed or conditioned. If Purchaser fails to withhold its consent in writing,
within five (5) days following receipt of a request for execution of a Lease,
then Purchaser's consent to such Lease shall be deemed granted. Seller shall,
from and after the Effective Date of this Agreement to the Closing Date, perform
and discharge all of the material duties and obligations and shall otherwise
comply with every material covenant and agreement of the "landlord" or "lessor"
under the Leases, of the "owner" of the Property under the Service Contract, and
of the "borrower" under any loan documents with respect to the Property.
9.2 TENANT ESTOPPEL CERTIFICATES. No later than three (3)
business days prior to Closing, Seller furnish Purchaser with Conforming
Estoppel Certificates from all tenants under the Leases and parties to
reciprocal and/or operating easement agreements; provided, however, that a
Seller Estoppel Certificate shall be acceptable for up to a total of three (3)
tenants in all of Building B, Building C and Building E (as shown on the Site
Plan). As used in this Agreement, the term "Conforming Estoppel Certificate"
means any estoppel certificate that is delivered to Purchaser in the form of
EXHIBIT E (or such other estoppel certificate complying with the terms of any
particular lease) which does not contain any modification or addition that is
materially adverse to Purchaser and which does not reveal any default under the
affected lease or condition which, with notice or the passage of time, would
constitute a default. As used in this Agreement, the term "Seller Estoppel
Certificate" means a certificate executed and delivered by Seller which contains
the same information with respect to any affected lease as would the requested
Conforming Estoppel Certificate. Any estoppel certificate which is not a
Conforming Estoppel
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Certificate or a Seller Estoppel Certificate, but which is not expressly
disapproved by Purchaser in writing within three (3) business day after
Purchaser's receipt thereof, shall constitute a Conforming Estoppel Certificate.
In the event Seller delivers a Seller Estoppel Certificate and later obtains a
Conforming Estoppel Certificate with respect to the same lease, then upon
delivery of the Conforming Estoppel Certificate to Purchaser (whether before or
after Closing), Seller shall be automatically and fully released and discharged
from any and all liability then or thereafter arising with respect to the Seller
Estoppel Certificate.
9.3 OPERATION AND EASEMENT AGREEMENT ESTOPPEL CERTIFICATES. No
later than three (3) business days following the Effective Date of this
Agreement, Seller shall forward to all parties subject to that certain Operation
and Easement Agreement between Target Corporation and Sembler Family Partnership
#26, Ltd. recorded in Book E426, Page 686 of the RMC Office for Charleston
County, as amended by that certain First Amendment to Operation and Easement
Agreement between Target Corporation and Sembler Family Partnership #26, Ltd, an
OEA Estoppel Certificate in the form attached hereto as EXHIBIT F and request
that said parties forward such forms to Purchaser at their earliest convenience.
Receipt of an executed OEA Estoppel Certificate shall not be a condition to
Closing, nor a required Closing Document.
Section 10. ADDITIONAL COVENANTS.
From and after the Effective Date of this Agreement, through the
time of Closing or earlier termination of this Agreement by Purchaser pursuant
to Section 6, Seller shall (i) cause the Property to be maintained in accordance
with the standards of maintenance currently being applied with respect to the
Property; (ii) keep in full force and effect the existing fire the "all risk"
insurance coverage on the Property and public liability insurance with respect
to damage or injury to persons or property occurring on the Improvements or the
Land in not less than the amounts maintained by Seller as of the Effective Date
of this Agreement; (iii) use commercially reasonable efforts to comply with the
requirements of all laws, orders, ordinances, rules, and regulations of any
governmental authority, or agency having jurisdiction over the Property; and
(iv) except as otherwise set forth in set forth in this Agreement, not enter
into any new conveyance, security document, easement, or other agreement that
would affect the Property subsequent to Closing without Purchaser's prior
written consent, which may not be unreasonably withheld.
Section 11 CLOSING.
11.1 TIME AND PLACE. Provided that all of the conditions to
Purchaser's performance set forth in this Agreement are theretofore fully
satisfied or performed or otherwise waived expressly and in writing by
Purchaser, the closing and consummation of the transactions contemplated herein
(the "CLOSING") shall be held at the offices of Seller's counsel, Sutherland
Asbill & Brennan LLP, at 999 Peachtree Street, N.E., Atlanta, Georgia
30309-3996, or through escrow utilizing the Escrow Agent upon such terms as
Purchaser and Seller may agree, at such time and date as Purchaser shall
designate to Seller in writing, provided, however, the Closing shall be no later
than April 19, 2004 (except as may be extended by Seller to cure the Title
Objections as provided in Section 6) and no earlier than three (3) business days
after written notice from Purchaser establishing such date and time of Closing
(the "CLOSING DATE"). In the event the Purchaser fails to designate the date,
time and place of Closing in accordance with the
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terms of this Agreement, then the Closing shall be held at 10:00 A.M. EST at the
offices of Seller's counsel in Atlanta, Georgia, at the address set forth above
on the last date that Closing can be held pursuant to the terms of this
Agreement.
11.2 CLOSING DOCUMENTS. For and in consideration of, and as a
condition precedent to Purchaser's delivery to Seller of the Purchase Price,
Seller shall deliver at Seller's expense (all of which shall be duly executed
and acknowledged where required and shall survive the Closing), the following
(collectively, the "CLOSING DOCUMENTS"):
11.2.1 A Limited Warranty Deed conveying to Purchaser
good and marketable fee simple title to the Property, subject only to the
Permitted Title Exceptions;
11.2.2 A limited warranty bill of sale, without warranty
or representation, in a form reasonably acceptable to Purchaser, transferring to
Purchaser all of the intangible rights related to the Other Property;
11.2.3 An Assignment of Leases and Guaranties in a form
reasonably acceptable to Purchaser and Seller transferring to Purchaser all
right, title and interest of the "landlord" or "lessor" in and to the Leases and
Guaranties and providing (i) that Seller indemnifies Purchaser against and
agrees to hold Purchaser harmless from and against any and all liabilities,
obligations, losses, costs, and expenses associated with the performance of the
"landlord" or the "lessor" for the period prior to Closing under any Lease, and
providing (ii) that Purchaser indemnifies Seller against and agrees to hold
Seller harmless from and against any and all liabilities, obligations, losses,
costs and expenses associated with the performance of the "landlord" or the
"lessor" under all Leases for the period from and after the Closing;
11.2.4 An Owner's Affidavit in form and content
satisfactory to the Title Insurer to eliminate any standard preprinted
exceptions (except those relating to survey matters) in any policy of title
insurance purchased by Purchaser at the Closing;
11.2.5 The Conforming Estoppel Certificates;
11.2.6 The Seller Estoppel Certificates, if applicable;
11.2.7 Each Lease and Surviving Service Contract in
Seller's files;
11.2.8 All of the keys to any door or lock on the
Property and the original tenant files;
11.2.9 A notice from Seller to each tenant of the sale
of the Property to Purchaser in the form attached hereto as EXHIBIT G;
11.2.10 The Certificate of Representations signed by
Seller and delivered to Purchaser at the Closing which restates and reaffirms
all of the representations and warranties of Seller contained in this Agreement,
subject to such disclosures as may have been made by Seller and approved by
Purchaser pursuant to Section 8 hereof. In no event shall Seller be liable to
Purchaser for, or be deemed to be in default by reason of, any breach of
representation or warranty which results from any change that (i) occurs between
the Effective
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Date and the date of Closing and (ii) is expressly permitted under the terms of
this Agreement or is beyond the reasonable control of Seller to prevent;
PROVIDED, HOWEVER, that the occurrence of a change that is not permitted
hereunder or is beyond the reasonable control of Seller to prevent shall, if
materially adverse to Purchaser, constitute the non-fulfillment of the
conditions set forth in Section 12.1 below; if, despite changes or other matters
described in such Certificate, the Closing occurs, Seller's representations or
warranties set forth in this Agreement, shall be deemed to have been modified by
all statements made in such certificate;
11.2.11 An affidavit given in conjunction with the sale
of real estate pursuant to SC Code Section 12-8-580 (and related Revenue Rulings
and Advisory Bulletins), a form of which affidavit is attached hereto as EXHIBIT
H and made a part hereof. If, pursuant to such affidavit, Seller does not
establish that it is exempt from withholding under SC Code Section 12-8-580 (and
the related Revenue Rulings and Advisory Bulletins), then Purchaser shall
withhold and forward to the South Carolina Department of Revenue a portion of
the Purchaser Price in an amount sufficient to fully satisfy and discharge
Purchaser's withholding obligations under SC Code Section 12-8-580 and SC
Revenue Advisory Bulletin #02-6.
11.2.12 Such documents and certificates as Purchaser or
the Title Insurer may reasonably require to establish the authority of the
parties executing any documents in connection with this transaction;
11.2.13 A settlement statement which shall set forth the
Purchase Price and any adjustments thereto and the various costs, credits
prorations, escrows and other financial aspects of the transaction contemplated
herein or otherwise agreed upon by the parties in connection with this
transaction (the "SETTLEMENT STATEMENT"): and
11.2.14 To the extent assignable and available, an
assignment, at no cost or expense to Purchaser, for applicable HVAC, roof,
parking lot and landscaping warranties for materials and workmanship.
11.2.15 An executed audit cooperation letter and audit
representation letter substantially in the forms attached hereto as EXHIBITS I
and J respectively.
11.3 DELIVERY OF PURCHASE PRICE. Subject to the other terms
hereof, Purchaser shall pay to Seller the full amount of the Purchase Price, as
increased or decreased by prorations and adjustments as herein provided, in
immediately available wire transferred funds pursuant to Section 4.1 above, it
being agreed that at Closing the Earnest Money shall be delivered to Seller and
applied towards payment of the Purchase Price. Purchaser and Seller agree to use
their respective best efforts to consummate the closing of the transaction
contemplated hereby so that Seller's sales proceeds may be confirmed as received
by Seller on the Closing Date. In the event the closing of the transaction and
the disbursal of Seller's sales proceeds shall not have been received by Seller,
which receipt shall be confirmed by a Federal wire transfer reference number, on
the Closing Date, then Seller may, at Seller's discretion, either adjourn the
consummation of the Closing to the next ensuing day and cause the Settlement
Statement and prorations thereon to be updated through the next ensuing day
accordingly, or, alternatively, proceed to cause the Closing Documents to be
executed and delivered by Seller to Purchaser and, cause the Settlement
Statement and prorations reflected thereon to be updated to the next ensuing day
and
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require Purchaser, and Purchaser agrees, to remit additional proceeds to Seller
pursuant to such updated Settlement Statement prorations.
11.4 COSTS.
11.4.1. Seller shall pay only the fees of any counsel
representing it in connection with this transaction.
11.4.2. Purchaser shall pay: (a) the fees of any counsel
representing Purchaser in connection with this transaction; (b) the fees for
recording the Limited Warranty Deed, if any) conveying the Property to
Purchaser; (c) the cost of updating the Survey; (d) the title insurance premium
for Purchaser's owner's policy of title insurance; (e) the title search fee
related to the issuance of the Title Commitment; (f) any fees and expenses
charged by Escrow Agent; (h) any transfer tax, documentary stamp tax or similar
tax which becomes payable by reason of the transfer of the Property; and (g) any
other costs incurred in connection with Closing.
11.4.3. All other costs and expenses incident to this
transaction and the closing thereof shall be paid by the party incurring same.
Section 12. CONDITIONS AND DEFAULT.
12.1 PURCHASER'S CONDITIONS. All of the following shall be
conditions to Purchaser's performance hereunder and must be satisfied, or waived
by Purchaser, at or prior to the Closing:
12.1.1 Any conditions regarding title to the Property
set forth in Sections 6 and 7 above shall have been satisfied.
12.1.2 Subject to any disclosures to which Purchaser has
not objected, the representation and warranties of Seller set forth in Section 8
above shall be true and complete in all material respects.
12.1.3 Seller shall have executed and delivered the
documents and instruments contemplated by Section 11.2 above.
12.1.4 All tenants under the Leases set forth on the
Rent Roll attached hereto as EXHIBIT D shall have accepted possession and
shall be open for business in their premises, paying full rent and
reimbursements, as set forth on EXHIBIT D.
12.2 DEFAULT.
12.2.1 In the event of default by Purchaser under this
Agreement, Seller's sole remedy shall be to retain the Earnest Money as
liquidated damages, in which event this Agreement shall become null and void,
and all parties hereto shall thereupon be released of all further liability
hereunder, except for any liability of Purchaser under any indemnity pursuant to
any Section hereof, that by its terms survives any termination of this
Agreement. It is hereby agreed that, without resale, Seller's damages will be
difficult to ascertain and that the Earnest
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Money constitutes a reasonable liquidation thereof and is intended not as a
penalty, but as full liquidated damages. Seller agrees that, except with respect
to any action to recover under any indemnification/hold harmless agreement
expressly set forth in this Agreement, in the event of a default by Purchaser,
it shall not initiate any proceeding to recover damages from Purchaser in excess
of the Earnest Money, and Purchaser agrees that in the event of its default, it
shall not initiate any proceeding challenging Seller's right to keep the full
amount of the Earnest Money as liquidated damages.
12.2.2 In the event that Seller fails or refuses to
close the transaction contemplated by this Agreement, Purchaser shall be
entitled to terminate this Agreement (except to the extent that any right,
obligation or liability set forth herein expressly survives termination of this
Agreement) by the delivery to Seller of notice of such termination and to
receive from Escrow Agent immediate payment of the Earnest Money, and, if
Purchaser has theretofore complied with all of Purchaser's obligations under
this Agreement, Purchaser shall also be entitled, as its sole and exclusive
additional remedy hereunder, to sue Seller for specific performance of this
Agreement and to seek recovery for the expenses incurred in such suit, not to
exceed $25,000.00. Except with respect to any right, obligation or liability
which survives termination of this Agreement (as to which Purchaser shall be
entitled to exercise any and all rights and remedies at law or in equity),
Purchaser's rights to so terminate this Agreement, receive payment of the
Earnest Money as aforesaid and sue for specific performance as aforesaid are
Purchaser's sole and exclusive remedies in the event of default hereunder by
Seller, and Purchaser hereby waives, relinquishes and releases any and all other
rights and remedies, including, but not limited to: (1) any right to sue Seller
for damages, and (2) any other right or remedy which Purchaser may otherwise
have against Seller either at law, in equity or otherwise.
Section 13. CONDEMNATION OR DESTRUCTION.
If at any time prior to the Closing all or any material portion
of the Property is destroyed or damaged as a result of fire or any other cause
whatsoever, or taken by condemnation or eminent domain or any proceeding in
condemnation or eminent domain or Seller becomes aware of the threat of such
taking, Seller shall promptly give written notice thereof to Purchaser. Seller
shall bear all risk of loss or damage to the Property and Other Property by
fire, other casualty or condemnation prior to the Closing. Any insurance
proceeds or condemnation award, not applied to the restoration of the Property
and the Improvements prior to the Closing will be credited against the Purchase
Price at the Closing. Purchaser's sole remedy in the event of such a casualty or
condemnation prior to the end of the Inspection Period shall be to terminate
this Agreement in accordance with Section 6 above and with respect to a casualty
or condemnation after the end of the Inspection Period shall be to accept an
assignment of any insurance proceeds or condemnation awards made or to be made
in connection therewith.
Section 14. ASSIGNMENT.
Without the prior written consent of Seller, Purchaser shall not,
voluntarily or by operation of law sell, assign, transfer, convey, hypothecate
or otherwise assign to any transferee or transferees all or any part of its
rights under this Agreement and any such attempted assignment shall be void AB
INITIO. Notwithstanding any provisions to the contrary, whether express or
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implied, Purchaser shall have the right to cause Seller to convey the Property
to a nominee of Purchaser, which nominee shall be designated in writing by
Purchaser by the delivery to Seller of a written assignment of this Agreement
pursuant to which Purchaser's obligations hereunder are expressly assumed by
such assignee and by delivery to Seller of evidence reasonably satisfactory to
Seller of the valid legal existence of Purchaser's assignee, its qualification
to do business in the State of South Carolina and of the authority of
Purchaser's designee to execute and deliver any and all documents required of
Purchaser under the terms of this Agreement, which items shall be actually
received by Seller not less than three (3) business days prior to the Closing
Date; notwithstanding the foregoing, the exercise of such right by Purchaser
shall not relieve Purchaser of any of its obligations and liabilities hereunder
including obligations and liabilities which survive the Closing or the
termination of this Agreement. Except as hereinabove provided, Purchaser may not
assign its rights under this Agreement without the prior written approval of
Seller, which approval Seller may withhold in its sole discretion.
Section 15. BROKERAGE COMMISSION.
As long as the transaction contemplated by this Agreement closes,
Seller shall pay a broker's commission to The Sembler Company (the "Broker")
pursuant to the terms of a separate agreement between Seller and Broker. Seller
and Purchaser hereby represent each to the other that, except as set forth in
the immediately preceding sentence, they have not discussed this Agreement or
the subject matter thereof with any real estate broker, agent, or salesman, so
as to create any legal right in any such broker, agent, or salesman to claim a
real estate commission or similar fee with respect to the conveyance of the
Property and the other transactions contemplated by this Agreement. Seller and
Purchaser hereby indemnify each other against and agree to hold each other
harmless from and against any and all claims (including, without limitation,
court costs and attorneys' fees incurred in connection with any such claims) for
any real estate commissions or similar fees arising out of or in any way
connected with any claimed agency relationship with the indemnitor and relating
to the conveyance of the Property and the other transactions contemplated by
this Agreement.
Section 16. NOTICES.
Wherever any notice or other communication is required or
permitted hereunder, such notice or other communication shall be in writing and
shall be sent by (a) overnight courier, (b) hand delivery or (c) facsimile
transmission (with a "hard copy sent by either of the methods provided in (a) or
(b) above), to the addresses set out below or at such other addresses as are
specified by written notice delivered in accordance herewith. The effective date
of any notice shall be the date of actual receipt in the case of a notice which
is hand delivered or sent by overnight courier service, the date of transmission
in the case of a notice which is sent by facsimile (with confirmation sheet) or
the date of receipt or rejection as evidenced by the return receipt if sent by
registered or certified mail:
17
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SELLER: Sembler Family Partnership #26, Ltd.
c/o The Sembler Company
5858 Central Avenue
St. Petersburg, Florida 33707
Attn: Mr. Craig Sher
Telephone: (727) 384-6000
Fax: (727) 343-4272
WITH A COPY TO: Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
Attn: Michael G. Kerman
Telephone: (404) 853-8326
Fax: (404) 853-8806
PURCHASER: Inland Real Estate Acquisitions, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Joseph Cosenza, Vice Chairman
Telephone: (630) 218-8000
Fax: (630) 218-4935
WITH A COPY TO: The Inland Real Estate Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attn: Michael Moran, Esq.
Telephone: (630)645-2085
Fax: (630) 218-4900
Section 17. MISCELLANEOUS.
17.1 RULES OF CONSTRUCTION. This Agreement shall be construed
and interpreted under the laws of the State of South Carolina. The titles of
sections and subsections herein have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions herein. All references herein to the singular
shall include the plural, and vice versa. If any party to this Agreement is made
up of more than one person or entity, then all such persons and entities shall
be included jointly and severally, even though the defined term for such party
is used in the singular in this Agreemen. If any time period under this
Agreement ends on a day other than a Business Day (as hereinafter defined), then
the time period shall be extended until the next business day. The term
"Business Day" shall mean Monday through Friday excluding holidays recognized by
the state government of the State in which the property is located. This
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Agreement to be drafted.
If any words or phrases in this Agreement shall have been stricken out or
otherwise eliminated, whether or not any other words or phrases have been added,
this
18
<Page>
Agreement shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Agreement and no implication or
inference shall be drawn from the fact that said words or phrases were so
stricken out or otherwise eliminated.
17.2 ENFORCEMENT. In the event any claim is asserted by or
against any of the parties hereto with respect to this Agreement or the subject
matter hereof, the party or parties prevailing in any litigation resulting from
such claim shall be entitled to receive attorneys' fees incurred by such
prevailing party or parties in such litigation from the party or parties who
fail so to prevail.
17.3 NO WAIVER. Neither the failure of either party to exercise
any power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, nor any custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
17.4 ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof, and
no representations, inducements, promises, or agreements, oral or otherwise,
between the parties not embodied herein or incorporated herein by reference
shall be of any force or effect.
17.5 BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective personal
representatives, successors and assigns.
17.6 AMENDMENTS. No amendment to this Agreement shall be
binding on any of the parties hereto unless such amendment is in writing and is
executed by the party against whom enforcement of such amendment is sought.
17.7 TIME OF ESSENCE. Time is of the essence of this Agreement.
17.8 POSSESSION. Possession of the Property shall be granted as
of the date of Closing, subject to the Permitted Title Exceptions.
17.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
17.10 NO RELIANCE ON DOCUMENTS. Except as expressly stated
herein, Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information delivered by Seller to
Purchaser in connection with the transaction contemplated hereby except with
respect to materials, data or information which are created by Seller. Except as
otherwise provided in the preceding sentence, Purchaser acknowledges and agrees
that all materials, data and information delivered by Seller to Purchaser in
connection with the transaction contemplated hereby are provided to Purchaser as
a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser, except as
otherwise expressly stated herein. Without limiting the generality of the
foregoing provisions, Purchaser acknowledges and agrees that (a) any
environmental or other report with respect to the Property which is delivered by
Seller to Purchaser shall be for general
19
<Page>
informational purposes only, (b) Purchaser shall not have any right to rely on
any such report delivered by Seller to Purchaser, but rather will rely on its
own inspections and investigations of the Property and any reports commissioned
by Purchaser with respect thereto, and (c) neither Seller, any affiliate of
Seller nor the person or entity which prepared any such report delivered by
Seller to Purchaser shall have any liability to Purchaser for any inaccuracy in
or omission from any such report.
17.11 CONFIDENTIALITY. Purchaser agrees that the terms and
conditions of this Agreement and all other matters related thereto are
confidential and that Purchaser shall not, without the prior written consent of
Seller, disclose the terms and conditions of this Agreement to any parties
except (a) parties owning an interest in the Property and whose interest will be
affected by the transfer of the Property to Purchaser, (b) Purchaser's lawyers,
accountants, and other professionals engaged by Purchaser to assist in the
transfer of the Property, and (c) disclosure as required by applicable law. In
the event of any such communication permitted by the preceding sentence,
Purchaser agrees to obligate the parties to such communication to be bound by
the same confidentiality requirements set forth herein. This provision shall not
survive Closing.
17.12 PARTIAL INVALIDITY. If all or any portion of any of the
provisions of this Agreement shall be declared invalid by laws applicable
thereto, then the performance of said offending provision shall be excused by
the parties hereto; provided, however, that, if the performance of such excused
provision materially affects any aspect of this transaction, then the party
hereto for whose benefit such excused provision was inserted in this Agreement
shall have the right, exercisable by written notice given to the other party
within ten days after such provision is so declared invalid, to terminate this
Agreement.
17.13 MEMORANDUM OF AGREEMENT. In no event shall this Agreement
or any memorandum hereof be recorded in the public records of the place in which
the Property is situated, and any such recordation or attempted recordation
shall constitute a breach of this Agreement by the party responsible for such
recordation or attempted recordation.
17.14 EXHIBITS. The exhibits referred to in and attached to this
Agreement are incorporated herein in full by reference.
17.15 TAX FREE EXCHANGE. Each party hereby agrees to take any
and all actions at Closing as are reasonably necessary to help the other to
effectuate a like-kind exchange of the Property pursuant to Section 1031 of the
Code, including, but not limited to (i) entering into a like-kind exchange trust
agreement authorized by a "qualified intermediary" acceptable to Purchaser and
Seller to effectuate a like-kind exchange of the Property, which agreement shall
be in the form and substance sufficient to allow such party's exchange of the
Property to qualify as a tax-free exchange under Section 1031 of the Code, and
(ii} paying to the qualified intermediary the cash at Closing for the Property
in accordance with the instructions of the intermediary; provided, however, that
in no event shall the non-requesting party be required to take title to any
other real property or to incur any additional expenses or liability in order to
effectuate the like-kind exchange or to enter into any other agreement to
effectuate such exchange. The requesting party, whether Seller or Purchaser,
agrees to indemnify, defend and hold the other party harmless from and against
any and all costs, expenses, claims and other liabilities of any kind arising
with
20
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regard to the effectuation of a tax free exchange as described herein.
Notwithstanding anything to the contrary provided herein, the non-requesting
party makes no representations or warranties as to the tax treatment for the
transaction contemplated hereby or the ability of the transaction contemplated
to qualify for like-kind exchange treatment pursuant to Section 1031 of the
Code. In the event both parties desire to effectuate a like-kind exchange as
described herein, each party shall pay any and all costs associated with their
respective transactions.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
<Page>
IN WITNESS WHEREOF, each of the parties hereto have caused their duly
authorized officer or agent to sign and seal this Agreement, effective as of the
day and year first above written.
SELLER:
SEMBLER FAMILY PARTNERSHIP #26, LTD., a
Florida limited partnership
By: Sembler Retail, Inc., a Florida corporation, its
general partner
By:
----------------------------
Name:
---------------------------------
Title:
--------------------------------
Date of Execution:
---------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
an Illinois corporation
By: /s/ [ILLEGIBLE]
---------------------------------
Name:
-------------------------------
Title: SR V.P.
------------------------------
Date of Execution: 4/12/04
---------------------
<Page>
IN WITNESS WHEREOF, each of the parties hereto have caused their duly
authorized officer or agent to sign and seal this Agreement, effective as of the
day and year first above written.
SELLER:
SEMBLER FAMILY PARTNERSHIP #26, LTD., a
Florida limited partnership
By: Sembler Retail Inc., a Florida corporation, its
general partner
By: /s/ Craig Sher
----------------------------
Name: Craig Sher
---------------------------------
Title: President
--------------------------------
Date of Execution: 4/12/04
---------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.
an Illinois corporation
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Date of Execution:
---------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
22
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Escrow Agent has executed this Agreement for the sole purpose of
acknowledging and agreeing to the terms of Section 3.
CHICAGO TITLE INSURANCE COMPANY
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Date of Execution:
------------------
23
<Page>
SCHEDULE OF EXHIBITS
Exhibit A - Legal Description of Property
Exhibit B - Due Diligence Checklist
Exhibit C - Form of Surveyor's Certificate/Survey Requirements
Exhibit D - Rent Roll
Exhibit E - Conforming Estoppel Certificate
Exhibit F - OEA Estoppel Certificate
Exhibit G - Tenant Letter
Exhibit H - South Carolina Seller's Affidavit
Exhibit I - Audit Cooperation Letter
Exhibit J - Audit Representation Letter
<Page>
EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
[TO BE INSERTED]
<Page>
EXHIBIT "B"
DUE DILIGENCE DOCUMENTS
To the extent such information is available:
A. FINANCIAL INFORMATION
1. Copy of leases and any guarantees
2. Current Rent Roll
3. Standard Lease Form
4. Latest Leasing Report
5. Summary of Recent Lease Transactions Including Rate and Tenant
Improvement Allowances
6. List of Current Tenants on % Rent only or % Rent in lieu basis
7. List of Specialty License Agreements
8. 2003 operating statement (new center) and preliminary year-to-date
9. Prior Year's Limited General Ledger Statement and Year-to-Date
Statement
10. Last year's bills for:
a. Real estate taxes
b. Insurance
1) Liability
2) Property
c. Reconciliations for CAM/taxes/insurance
d. Statement of Currently Monthly Amounts paid by tenants for
CAM/taxes/insurance plus a year-to-date balance of amounts paid
by each tenant
11. Information related to any recent CAM or Tax Audits
12. Base rent collected in previous calendar year period by tenant
14. Physical occupancy for last 5 years prior to purchase
15. Aging report
16. Tenant sales reports for last year
<Page>
17. Tenant Financial Statements in Seller's possession, if any
18. Lease Expirations next three years - status of expirations, with
kick-outs
19. Description and Breakdown of Promotional Income and Marketing Fund
20. Leasing Plan
B. EXPENSE INFORMATION
1. Report for past 12 mos. showing proof of payments for utility bills
for:
a. Water
b. Gas
c. Electric
d. Telephone & dedicated lines
2. Copies of all service agreements or contracts that encumber the
property
a. Fire/Burglar Alarm
b. Antenna Cable/Satellite Dish
c. Cleaning - Parking/Sweeping/Waste Removal
d. Exterminating
e. Landscaping
f. Scavenger
g. Security Service
h. Snow Removal
i. Towing
j. Union Contracts
k. Elevator
l. Uniform Rental
m. Water Softeners
n. Leasing
o. Management
p. Advertising
2
<Page>
q. Tax Reduction Legal Fees
r. Any other service contracts or leases not cancelable in 90 days
3. Capital Improvements
c. ENVIRONMENTAL SOILS REPORTS
1. Phase I Environmental Assessment prepared by _________________ dated
_________________
2. Limited Phase II Environmental Assessment prepared by ________________
dated _________________
3. Geotechnical Exploration prepared by _________________ dated
_________________
4. Additional Soil and Groundwater prepared by _________________ dated
_________________
D. STAFFING
E. SITE INSPECTIONS
1. Inspection Report
2. Photo attached
F. MISCELLANEOUS
1. Code violations
2. Easement/encumbrances; restrictive easement agreements/operating
easement agreements
3. Warranties
4. Current Tenant Contact List
5. Certificates of insurance from tenants
6. Current Insurance Policies (Building and Common Area)
a. Property
b. Liability
c. Umbrella
d. Environmental
7. Copy of Management Agreement
3
<Page>
8. Recent 3rd Party Appraisal
9. Marketing/Leasing Brochures
10. Survey
11. Site Plan
12. Building Photographs and Aerials
13. Certificates of Occupancy
14. Zoning Letter
15. Building Plans and Specifications
16. Seller's existing title insurance policy for the Property
4
<Page>
EXHIBIT "C"
Form of Surveyor's Certificate/Survey Requirements
SURVEYOR'S CERTIFICATION
I/We hereby certify to INLAND REAL ESTATE ACQUISITIONS, INC., ____________,
______________________________ (Lender) and __________________________ (Name of
Title Insurance Company) that (a) this survey was prepared by me or under my
supervision, (b) the legal description of the property as set forth herein, and
the location of all improvements, encroachments, fences, easements, roadways,
rights of way and setback lines which are either visible or of record in
____________________ County, __________________________
(according to Commitment for Title Insurance Number ________________ , dated
__________________,
2004, issued ________________________________), are accurately reflected hereon,
(c) this survey accurately depicts the state of facts as they appear on the
ground, (d) except as shown hereon, there are no improvements, encroachments,
fences or roadways on any portion of the property reflected hereon, (e) the
property shown hereon has access to a publicly dedicated roadway, (f) the
property described hereon {does} {does not} lie in a 100 year flood plain
identified by the Secretary of Housing and Urban Development or any other
governmental authority under the National Flood Insurance Act of 1968 (24 CFR
Section 1909.1), as amended (such determination having been made from a personal
review of flood map number _____________, which is the latest available flood
map for the property), (g) the title lines and lines of actual possession are
the same, (h) all utility services required for the operation of the property
either enter the property through adjoining public streets or this survey shows
the point of entry and location of any utilities which pass through or are
located on adjoining private land, (i) this survey shows the location and
direction of all storm drainage systems for the collection and disposal of all
surface drainage, (j) the property surveyed contains ___________ acres and
_____________ parking spaces, (k) any discharge into streams, rivers, or other
conveyance systems is shown on the survey. This survey has been made in
accordance with "MINIMUM STANDARD DETAIL REQUIREMENTS FOR ALTA/ACSM LAND TITLE
SURVEYS" jointly established and adopted by American Land Title Association
("ALTA") and American Congress on Surveying and Mapping ("ACSM") in 1999 and
meets the accuracy requirements of an Urban Survey, as defined therein and
includes items 1, 3, 4, 6, 7(a-c), 8-11 and 13 of Table A thereof.
Dated: ______________, 2004 (NAME OF SURVEYOR AND QUALIFICATION)
________________________________
Registration No. ___________
<Page>
EXHIBIT "D"
Rent Roll
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XORTH RIVERS TOWN CENTER
XENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT. SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
XXX Bed Bath & Beyond 11/14/03 28,00X.00 0.00 303,8XX.04 0.00
64010 Bed Bath & Beyond, Inc. 01/31/14 25,316.67 0.00
10.X5 0.00
TYPE DATE NOTES
Options 06/01/13 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 07/31/13; contact tenant regarding renewal.
Rent Increase 02/01/14 Minimum Rent 27,650.00 Fixed Increase
Options 06/01/18 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 07/31/18; contact tenant regarding renewal.
Rent Increase 02/01/19 Minimum Rent 29,983.33 Fixed Increase
Options 06/01/23 0.00 Third five-year Option to renew lease. Lease terminates if not
exercised by 07/31/23; contact tenant regarding renewal.
Rent Increase 02/01/24 Minimum Rent 32,316.67 Fixed Increase
Renewals 08/01/28 0.03 Lease expires 01/31/29.
X100 Ross Dress for Less 02/13/04 30,187.40 0.0X 332,457.04 0.00
X6001X Ross Stores, Inc. 01/31/15 27,671.42 0.00
TYPE DATE NOTES
Options 06/01/14 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 07/31/14; contact tenant regarding renewal.
Rent Increase 02/01/15 Minimum Rent 30,187.00 Fixed Increase
Options 06/01/19 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 07/31/19; contact tenant regarding renewal.
Rent Increase 02/01/20 Minimum Rent 32,702.58 Fixed Increase
Options 06/01/24 0.00 Third five-year Option to renew lease. Lease terminates if not
exercised by 07/31/24; contact tenant regarding renewal.
Rent Increase 02/01/25 Minimum Rent 35,218.17 Fixed Increase
Options 06/01/24 0.00 Fourth five-year Option to renew lease. Lease terminates if not
exercised by 07/31/29; contact tenant regarding renewal.
Rent Increase 02/01/30 Minimum Rent 37,733.75 Fixed Increase
Renewals 08/01/34 0.00 Lease expires 01/31/35.
X200 Office Depot 02/01/04 16,000.00 0.00 183,999.96 0.00
260015 Office Depot, Inc. 01/31/14 15,333.3X 0.00
11.50 0.00
TYPE DATE NOTES
Options 05/01/14 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 06/3X/14; contact tenant regarding renewal.
Rent Increase 01/01/15 Minimum Rent 16,666.67 Fixed Increase
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAKPOINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
XXX Bed Bath & Beyond 0.40 14,481.60 4,200.00 0.00 322,481.64 0.0X
64010 Bed Bath & Beyond, Inc. 0.40 1,206.80 350.00 0.00 26,873.47
0.XX 0.52 0.15 0.00 11.52
X100 Ross Dress for Less 0.00 15,423.24 0.00 0.00 347,480.28 0.00
X6001X Ross Stores, Inc. 0.00 1,255.27 0.00 0.00 28,956.67
0.00 0.51 0.00 0.00 11.51
X200 Office Depot 0.00 24,000.00 0.01 0.00 207,999.96 0.04
260015 Office Depot, Inc. 0.00 2,000.00 0.01 0.00 17,333.33
0.00 1.50 0.00 0.00 13.00
</Table>
Thursday, March 18, 2004
<Page>
XORTH RIVERS TOWN CENTER
XENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
Rent Increase 01/01/16 Minimum Rent 18,000.04 Fixed Increase
Options 05/01/19 0.00 Secured five-year Option to renew lease. Lease terminates if not
exercised by 06/30/19; contact tenant regarding renewal.
Options 03/01/24 0.00 Third five-year Option to renew lease. Lease terminates if not
exercised by 06/30/24; contact tenant regarding renewal.
Rent Increase 01/01/25 Minimum Rent 19,333.33 Fixed Increase
Options 05/01/29 0.00 Fourth five-year Option to renew lease. Lease terminates if not
exercised by 06/30/29; contact tenant regarding renewal.
Rent Increase 01/01/30 Minimum Rent 20,666.67 Fixed Increase
Renewals 07/01/24 0.00 Lease expires 12/31/2034.
1340 David's Bridal 10/27/03 10,000.00 0.00 155,000.04 0.00
164011 David's Bridal, Inc. 10/31/13 12,916.67 0.00
15.50 0.00
TYPE DATE NOTES
Rent Increase 11/01/08 Minimum Rent 13,333.33 Fixed Increase
Options 03/01/13 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 04/30/13; contact tenant regarding renewal.
Rent Increase 11/01/13 Minimum Rent 14,666.67 Fixed Increase
Options 03/01/18 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 04/30/13; contact tenant regarding renewal.
Rent Increase 11/01/18 Minimum Rent 16,133.33 Fixed Increase
Renewals 05/01/23 0.00 Lease expires 10/31/23.
2001 America's Mattress 10/11/03 2,400.00 4,400.00 52,800.00 0.00
260005 The Mattress Gallery, Inc 10/31/08 4,400.00 0.00
22.00 0.00
TYPE DATE NOTES
Options 03/01/08 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 04/30/08; contact tenant regarding renewal.
Rent Increase 11/01/08 Minimum Rent 4,800.00 Fixed Increase
Options 03/01/13 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 04/30/13; contact tenant regarding renewal.
Rent Increase 11/01/13 Minimum Rent 5,200.00 Fixed Increase
Renewals 05/01/18 0.00 Lease expires 10/31/18.
2003 Firehouse Subs 02/09/04 1,804.00 3,462.00 36,000.00 0.00
260016 2nd Alanta Resturant 02/28/09 3,800.00 0.00
Group, I. 20.00 0.00
TYPE DATE NOTES
Rent Increase 03/01/06 Minimum Rent 3,150.00 Fixed Increase
Options 07/01/08 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 08/31/08; contact tenant regarding renewal.
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAKPOINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
1340 David's Bridal 4,499.96 20,494.46 0.00 0.00 135,499.96 0.00
164011 David's Bridal, Inc. 833.33 1,708.33 0.00 0.00 15,458.33
1.00 2.05 0.00 0.00 18.55
2001 America's Mattress 2,760.00 4,632.06 0.00 0.00 40,192.00 4.00 1,320,000.00
260005 The Mattress Gallery, Inc 230.00 386.00 0.00 0.00 5,816.00
1.15 1.93 0.00 0.00 25.08
2003 Firehouse Subs 2,070.00 3,474.00 0.00 0.00 41,544.03 0.00 0.00
260016 2nd Alanta Resturant 172.50 189.50 0.00 0.00 3,462.00
Group, I.
1.15 1.93 0.00 0.00 23.08
</Table>
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
Rent Increase 03/XX/09 Minimum Rent 3,450.00 Fixed Increase
Options 07/01/13 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 08/31/13; contact tenant regarding renewal.
Rent Increase 03/01/14 Minimum Rent 3,750.00 Fixed Increase
Renewals 09/01/19 0.00 Lease expires 02/28/2019.
005 All About Callotar 01/15/04 1,400.00 0.00 27,300.00 0.00
60006 CaraXXX Cellular 01/31/07 2,275.00 0.00
Sales, Inc.
TYPE DATE NOTES
Rent Increase 02/01/05 Minimum Rent 2,333.33 Fixed Increase
Rent Increase 02/01/06 Minimum Rent 2,391.67 Fixed Increase
Options 06/01/06 0.00 One three-year Option to renew lease. Lease terminates if not
exercised by 07/31/06; contact tenant regarding renewal.
Rent Increase 02/01/07 Minimum Rent 2,508.33 Fixed Increase
Rent Increase 02/01/08 Minimum Rent 2,566.67 Fixed Increase
Rent Increase 02/01/09 Minimum Rent 2,625.00 Fixed Increase
Renewals 08/01/09 0.00 Lease expires 01/31/2010.
X3007 Super Nail 11/28/03 1,400.00 2,333.33 27,999.96 0.00
X60002 AlXX T Nhuyen 11/30/0X 2,333.33 0.00
20.00 0.00
TYPE DATE NOTES
Rent Increase 12/01/05 Minimum Rent 2,566.67 Fixed Increase
Options 04/01/08 0.00 One three-year Option to renew lease. Lease terminates if not
exercised by 05/31/08; contact tenant regarding renewal.
Rent Increase 12/01/08 Minimum Rent 2,XXX.00 Fixed Increase
Renewals 06/01/11 0.00 Lease expires 11/30/11.
X001 Just Fresh 02/10/04 4,800.00 8,400.00 100,800.00 0.00
Bakery Cafe & Marke
260007 PaXXX Feed Group
Charleston 02/28/14 8,400.00 0.00
21.00 0.00
TYPE DATE NOTES
Rent Increase 03/01/09 Minimum Rent 9,200.00 Fixed Increase
Options 07/01/13 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 08/31/08; contact tenant regarding renewal.
Rent Increase 03/01/14 Minimum Rent 10,000.00 Fixed Increase
Options 07/01/13 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 08/31/18; contact tenant regarding renewal.
Rent Increase 03/01/19 Minimum Rent 10,800.00 Fixed Increase
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
005 All About Callotar 1,400.xx 2,912.01 0.00 0.00 31,612.08 0.00
60006 Carolina Cellular 116.67 242.67 0.00 0.00 2,634.34
Sales, Inc.
1.00 2.08 0.00 0.00 22.53
X3007 Super Nail 1,400.04 2,912.04 0.00 0.00 32,312.04 0.00 0.00
X60002 AlXX T Nhuyen 116.67 242.67 0.00 0.00 2,692.67
1.00 2.88 0.00 0.00 23.08
X001 Just Fresh 4,800.00 9,934.00 0.00 0.00 115,584.00 5.00 2,016,000.0X
Bakery Cafe & Marke
260007 PaXXX Feed Group
Charleston 400.00 832.00 0.00 0.00 9,612.00
1.00 2.08 0.00 0.00 24.08
</Table>
Thursday, March 18, 2004
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
Renewals 09/01/23 0.00 Lease Expires 02/29/24.
X003 Cold Stone Creamery 01/16/04 1,50X.00 2,562.50 30,000.X0 0.00
X600XX Cold Stone Creamery
Leasing Co. 01/31/14 2,500.X0 0.00
20.00 0.00
TYPE DATE NOTES
Options 06/01/0X 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 07/31/08; contact tenant regarding renewal.
Rent Increase 02/01/09 Minimum Rent 2,750.00 Fixed Increase
Options 06/01/13 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 07/31/1X; contact tenant regarding renewal.
Rent Increase 02/01/14 Minimum Rent 3,X00.00 Fixed Increase
Options 06/01/18 0.00 Third five-year Option to renew lease. Lease terminates if not
exercised by 07/31/1X; contact tenant regarding renewal.
Rent Increase 02/01/19 Minimum Rent 3,250.00 Fixed Increase
Renewals 08/01/23 0.X0 Lease expires 01/31/24.
X001 Great Clips for Hair 01/09/04 1,250.00 2,187.00 26,250.00 0.00
X68005 Southern Clipper, Inc. 01/31/09 2,187.50 0.00
TYPE DATE NOTES
Rent Increase 02/01/07 Minimum Rent 2,395.84 Fixed Increase
Options 06/01/08 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 07/31/08; contact tenant regarding renewal.
Rent Increase 02/01/09 Minimum Rent 2,604.X7 Fixed Increase
Options 06/01/13 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 07/31/1X; contact tenant regarding renewal.
Rent Increase 02/01/14 Minimum Rent 2,812.50 Fixed Increase
Renewals 08/01/18 0.00 Lease expires 07/31/14.
X003 GameStep 11/22/03 1,750.0X 0.00 35.000.0X 0.00
260015 GameStep, Inc. 11/30/08 2,91X.X7 0.00
20.00 0.00
TYPE DATE NOTES
Rent Increase 12/01/05 Minimum Rent 3,2XX.33 Fixed Increase
Options 04/01/08 0.00 First five-year Options to renew lease. Lease terminates if not
exercised by 05/31/08; contact tenant regarding renewal.
Rent Increase 12/01/08 Minimum Rent 3,500.00 Fixed Increase
Options 04/01/13 0.00 Second five-year Options to renew lease. Lease terminates if
not exercised by 05/31/13; contact tenant regarding renewal.
Rent Increase 12/01/13 Minimum Rent 3,791.X7 Fixed Increase
Renewals 06/01/18 0.00 Lease expires 11/30/18.
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
X003 Cold Stone Creamery 1,725.00 2,895.00 0.00 0.00 34,620.00 0.00 0.00
X600XX Cold Stone Creamery 143.75 241.25 0.00 0.00 2,885.00
1.15 1.93 0.00 0.00 23.0X
X001 Great Clips for Hair 1,250.04 2,600.04 0.00 0.00 30,100.08 0.00 0.00
X68005 Southern Clipper, Inc. 104.17 216.67 0.00 0.00 2,X08.14
1.0X 2.X5 0.00 0.00 24.0X
X003 GameStep 2,012.52 3,377.52 0.00 0.00 40,390.08 0.00
260015 GameStep, Inc. 167.71 281.46 0.00 0.00 3,365.84
1.15 1.93 0.00 0.00 23.08
</Table>
Thursday, March 18, 2004
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
X007 Pearle Vision 03/01/04 3,000.00 5,770.00 60,000.00 0.00
160017 Carolina Eyes, Inc. 02/25/14 5,600.00 0.00
d/b/a Pearle
20.00 0.00
TYPE DATE NOTES
Rent Increase 03/01/09 Minimum Rent 5,500.00 Fixed Increase
Options 07/01/13 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 08/31/18; contact tenant regarding renewal.
Rent Increase 03/01/14 Minimum Rent 6,050.00 Fixed Increase
Options 07/01/18 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 08/31/18; contact tenant regarding renewal.
Rent Increase 03/01/19 Minimum Rent 6,450.00 Fixed Increase
Renewals 09/01/23 0.00 Lease expires 02/29/24.
X001 Pro Golf of Charleston 4,800.00 6,400.00 76,800.00 0.00
260018 Leanard Golf, Inc. 6,400.00 0.00
16.00 0.00
TYPE DATE NOTES
Rent Increase 04/01/06 Minimum Rent 6,800.00 Fixed Increase
Rent Increase 02/01/20 Minimum Rent 7,200.00 Fixed Increase
Rent Increase 02/01/25 Minimum Rent 7,600.00 Fixed Increase
Rent Increase 02/01/30 Minimum Rent 8,000.00 Fixed Increase
7007 TXXX Center Tobacco 1,608.00 2,677.31 26,400.00 0.00
& Gifts
260019 JCD, Inc. 2,200.00 X.00
16.XX 0.00
TYPE DATE NOTES
Rent Increase 05/01/06 Minimum Rent 2,466.67 Fixed Increase
Rent Increase 05/01/09 Minimum Rent 2,733.33 Fixed Increase
Rent Increase 05/01/14 Minimum Rent 3,000.00 Fixed Increase
X400 Babies "R" US 11/24/03 31,28X.00 0.00 0.00 160,776.00
XXX003 Toys "R" Us-Delaware, 01/31/14 0.00 13.398.00
Inc.
0.00 5.14
TYPE DATE NOTES
Options 06/01/13 0.00 First three-year Option to renew lease. Lease terminates if not
exercised by 07/31/13; contact tenant regarding renewal.
Rent Increase 02/01/14 Ground Rent 14,335.86 Fixed Increase
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
X007 Pearle Vision 3,450.00 5,790.00 0.00 0.00 69,248.X0 0.00 0.00
160017 Carolina Eyes, Inc. 287.50 482.50 0.00 0.00 5,770.00
d/b/a Pearle 1.15 0.43 0.00 0.00 23.08
X001 Pro Golf of Charleston 5,520.00 9,264.00 0.00 0.00 91,584.00 0.00
260018 Leanard Golf, Inc. 460.00 772.00 0.00 0.40 7,632.00
1.15 1.93 0.00 0.40 19.08
7007 TXXX Center Tobacco 1,839.96 3,087.96 0.00 0.00 31,327.92 0.0X
& Gifts
260019 JCD, Inc. 153.33 257.33 0.00 0.00 2,610.66
1.15 1.43 0.00 0.00 19.58
X400 Babies "R" US 0.00 16,464.00 0.00 0.00 177,240.00 0.XX
XXX003 Toys "R" Us-Delaware,
Inc. 0.00 1,372.00 0.00 0.00 14,770.00
0.00 0.53 0.00 0.00 5.67
</Table>
Thursday, March 18, 2004
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- -----------------------------------------------------------------------------------------------------------------------------
Options 06/01/18 0.00 Second three-year Options to renew lease. Lease terminates if
not exercised by 07/31/18; contact tenant regarding renewal.
Rent Increase 02/01/19 Ground Rent 15,XXX.37 Fixed Increase
Options 06/01/23 0.00 Third three-year Option to renew lease. Lease terminates if
not exercised by 07/31/23; contact tenant regarding renewal.
Rent Increase 02/01/24 Ground Rent 16,413.13 Fixed Increase
Options 06/01/28 0.00 Fourth three-year Option to renew lease. Lease terminates if
not exercised by 07/31/28; contact tenant regarding renewal.
Rent Increase 02/01/29 Ground Rent 17,562.05 Fixed Increase
Options 06/01/33 0.00 Fifth three-year Option to renew lease. Lease terminates if
not exercised by 07/31/33; contact tenant regarding renewal.
Rent Increase 02/01/34 Ground Rent 18,791.39 Fixed Increase
Options 06/01/38 0.00 Sixth three-year Option to renew lease. Lease terminates if
not exercised by 07/31/38; contact tenant regarding renewal.
Rent Increase 02/01/39 Ground Rent 20,106.79 Fixed Increase
Renewals 06/01/43 0.00 Lease expires 01/31/44.
<Caption>
GROUP TOTALS: SQ.FT DEPOSITS MIN RENT GROUND RENT
- -----------------------------------------------------------------------------------------------------------------------------
XURRENT ACCRUAL 141,167.0X 38,192.16 1,474,207.0X 160,776.00
XCENT ACCRUAL 0.00 0.00 0.00 0.00
---------------------------------------------------------------
TOTALS 141,167.00 18,192.16 1,474,207.0X 160,776.00
<Caption>
GROUP TOTALS: RE TAXES CAC/CAM INSURANCE OTHER TOTAL
- -----------------------------------------------------------------------------------------------------------------------------
XURRENT ACCRUAL 38,227.56 141,797.40 4,200.00 0.00 1,819,20X.04
XCENT ACCRUAL 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------
TOTALS 38,227.56 141,797.40 4,200.00 0.00 1,819,20X.04
</Table>
Thursday, March 18, 2004
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
OUTPARCEL
X108 Smokey Bones 11/15/03 6,894.00 0.00 0.00 124,647.72
X60014 GMRI, Inc. 11/20/13 0.00 10,387.31
10.X5 18.08
TYPE DATE NOTES
Rent Increase 12/01/08 Ground Rent 11,416.24 Fixed Increase
Rent Increase 12/01/13 Ground Rent 12,546.60 Fixed Increase
Rent Increase 12/01/18 Ground Rent 13,778.30 Fixed Increase
Rent Increase 12/01/23 Ground Rent 15,152,26 Fixed Increase
Rent Increase 12/01/28 Ground Rent 16,650.32 Fixed Increase
X000 Longhorn Steakhouse 09/28/03 5,300.00 0.00 0.00 99,999.96
X6001X Rare Hospitality
International, In 09/30/13 0.00 8,333.33
0.00 18.87
TYPE DATE NOTES
Rent Increase 10/01/08 Ground Rent 9,166.66 Fixed Increase
Options 02/01/13 0.00 First five-year Option to renew lease. Lease terminates if not
exercised by 03/31/13; contact tenant regarding renewal.
Rent Increase 10/01/13 Ground Rent 10.0X3.33 Fixed Increase
Options 02/01/18 0.00 Second five-year Option to renew lease. Lease terminates if not
exercised by 03/31/18; contact tenant regarding renewal.
Rent Increase 10/01/18 Ground Rent 11,091.66 Fixed Increase
Options 02/01/23 0.00 Third five-year Option to renew lease. Lease terminates if not
exercised by 03/31/23; contact tenant regarding renewal.
Rent Increase 10/01/23 Ground Rent 12,200.X3 Fixed Increase
Options 02/01/2X 0.00 Fourth five-year Option to renew lease. Lease terminates if not
exercised by 03/31/28; contact tenant regarding renewal.
Rent Increase 1X/01/28 Ground Rent 13,420,92 Fixed Increase
Renewals 04/01/33 0.00 Lease expires 09/30/2033.
XX00 Target 124,965.00 0.00 0.00 0.00
260015 Target Corp.,
Property Develop. 0.00 0.00
0.00 0.00
TYPE DATE NOTES
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
XXX TENANT NAME
- ----------------------------------------------------------------------------------------------------------------------------
OUTPARCEL
X108 Smokey Bones 0.00 2,341.79 0.00 0.00 126,989.51 0.00
X60014 GMRI, Inc. 0.00 2,341.79 0.00 0.00 12,729.10
0.00 0.34 0.00 0.00 18.42
X000 Longhorn Steakhouse 0.00 2,000.0X 0.00 0.X0 101,999.96 0.00
X6001X Rare Hospitality
International, In 0.00 2,000.0X 0.00 0.X0 10,333.33
0.00 0.XX 0.00 0.X0 19.25
XX00 Target 0.00 56,684.60 0.00 0.00 56,604.60 0.00
260015 Target Corp.,
Property Develop. 0.00 4,717.05 0.00 0.00 4,717.05
0.00 0.X5 0.00 0.00 0.45
</Table>
Thursday, March 18, 2004
<Page>
NORTH RIVERS TOWN CENTER
RENT ROLL WITH FUTURE EVENTS
<Table>
<Caption>
XXX DBA NAME COMMDATE SQ.FT SECURITY MIN RENT GROUND RENT
XXX TENANT NAME EXP. DATE DEPOSITS
- ----------------------------------------------------------------------------------------------------------------------------
X900 Chuck E. Cheese 09/26/03 10,632.00 0.00 0.00 0.00
X60920 CKC Entertainment, Inc. 0.00 0.00
0.00 0.00
TYPE DATE NOTES
XXX Totals: SQ.FT DEPOSITS MIN RENT GROUND RENT
------------------------------------------------------------
XXX Annual 147,791.00 0.00 0.00 224,647.68
XXX Annual 0.00 0.00 0.00 0.00
------------------------------------------------------------
Totals 147,791.00 0.00 0.00 224,647.68
XXX Totals: SQ.FT DEPOSITS MIN RENT GROUND RENT
------------------------------------------------------------
XXX Annual 28X,958.0X 38,192.16 1,474,207.08 385,423.68
XXX Annual 0.00 0.00 0.00 0.00
------------------------------------------------------------
Totals 288.958.00 38,192.16 1,474,207.08 385,423.68
<Caption>
XXX DBA NAME RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
XXX TENANT NAME
- -----------------------------------------------------------------------------------------------------------------------
X900 Chuck E. Cheese 0.00 3,946.34 0.00 0.00 3,946.54 4.00
X60920 CKC Entertainment, Inc. 0.00 3,946.54 0.00 0.00 3,946.54
0.00 0.37 0.00 0.00 0.37
XXX Totals: RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
--------------------------------------------------------------------------------------
XXX Annual 0.00 64,892.93 0.00 0.00 289,540.61
XXX Annual 0.00 64,892.43 0.00 0.00 289,540.61
------------------------------------------------------------
Totals 0.00 64,892.43 0.00 0.00 289,540.61
XXX Totals RE TAXES CAC/CAM INSURANCE OTHER TOTAL PERCENT BREAK POINT
--------------------------------------------------------------------------------------
XXX Annual 38,227.56 206,690.33 4,200.00 0.00 2,108,748.65
XXX Annual 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------
Totals 38,227.56 206,690.33 4,200.00 0.00 2,108,748.65
</Table>
Thursday, March 18, 2004
<Page>
EXHIBIT "E"
Conforming Estoppel Certificate
To:
Inland Real Estate Acquisitions, Inc., and
its lenders, successors and assigns ("Purchaser")
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Robert Brinkman
Re: Lease Agreement dated ______________ and amended ________________
("Lease"), between ____________ as "Landlord", and
______________________________, as "Tenant", guaranteed by
______________________________ ("Guarantor") for leased premises known as
7250 Rivers Avenue, Building _______, North Charleston, South Carolina
29406 (the "Premises") of the property commonly known as North Rivers Town
Center (the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter
agreements, modifications and waivers
related to the Lease
b. Commencement Date
c. Expiration Date
d. Current Annual Base Rent
<Table>
<Caption>
Adjustment Date Rental Amount
--------------- -------------
e. Fixed or CPI Rent Increases ______________ ___________
f. Square Footage of Premises
g. Security Deposit Paid to
Landlord
h. Renewal Options _____ Additional Terms for
_________ years at $_________ per year
i. Termination Options Termination Date ______________
Fees Payable_________________
</Table>
2. Tenant further certifies to Purchaser that:
<Page>
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been sublet
by Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or
abatements required to be given by Landlord to Tenant have been given;
d. Tenant is open for business or is operating its business at the
Premises;
e. no installment of rent or other charges under the Lease other than
current monthly rent has been paid more than 30 days in advance and
Tenant is not in arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to pay
interest thereon;
g. Landlord is not in default under the Lease and no event has occurred
which, with the giving of notice or passage of time, or both, could
result in a default by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits
against the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the
Lease earlier than the Expiration Date (except as stated in paragraph
1(i));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state,
county or municipal laws, regulations, ordinances, orders or
directives relating to the use or condition of the Premises or the
Property;
l. no hazardous wastes or toxic substances, as defined by all applicable
federal, state or local statutes, rules or regulations have been
disposed, stored or treated on or about the Premises or the Property
by Tenant;
m. Tenant has not received any notice of a prior sale, transfer,
assignment, pledge or other hypothecation of the Premises or the Lease
or of the rents provided for therein;
n. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any
applicable bankruptcy or creditors rights laws;
o. the Lease does not give the Tenant any operating exclusives for the
Property; and
p. Rent has been paid through _________ ___, 2004.
3. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured
by a deed of trust (or mortgage), security agreement and assignment of
rents, leases and contracts upon the property. Tenant acknowledges that
Purchaser's interest in the Lease (as landlord) will be assigned to a
lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease
until Tenant is notified otherwise in writing by Buyer's lender or its
successors and assigns. In the event that a lender succeeds to landlord's
interest under the Lease, Tenant agrees to attorn to the lender at lender's
request, so long as the lender agrees that unless Tenant is in default
under the Lease, the Lease will remain in full force and effect. Tenant
further acknowledges and agrees that Purchaser (including its lender),
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
<Page>
[TENANT]
By:
Its:
-------------------------
Date: , 2004
---------
<Page>
GUARANTOR ESTOPPEL CERTIFICATE
Date: ______________, 2004
To: _______________
Inland Real Estate Acquisitions, Inc., and
and its lenders, successors and assigns ("Purchaser")
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Robert Brinkman
Re: Guaranty Agreement dated _____________ ("Guaranty of Lease") pertaining to
that certain Lease Agreement dated _________ and amended
________________ ("Lease"), between _______________ as "Landlord", and
__________________, as "Tenant", guaranteed by __________________________
("Guarantor") for leased premises known as 7250 Rivers Avenue, Building
_________, North Charleston, South Carolina 29406 (the "Premises") of the
property commonly known as North Rivers Town Center (the "Property").
1. Guarantor certifies to Lender and Purchaser that: (a) the Guaranty of Lease
has been properly executed by Guarantor and is presently in full force and
effect without amendment or modification except as noted above; (b)
Guarantor has no existing defenses, offsets, lines, claims or credits
against the obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and a lender is about to provide Landlord
with financing which shall be secured by a deed of trust (or mortgage),
security agreement and assignment of rents, leases and contracts upon the
Property. Guarantor further acknowledges and agrees that Purchaser and its
lender and their respective successors and assigns shall have the right to
rely on the information contained in this Certificate.
3. The undersigned is authorized to execute this Guarantor Estoppel
Certificate on behalf of Guarantor.
[GUARANTOR]
By:
<Page>
EXHIBIT "F"
OEA Estoppel Certificate
TO: (Inland Entity)
2901 Butterfield Road
Oak Brook, Illinois 60523
RE: Operation and Easement Agreement between Target Corporation and Sembler
Family Partnership #26, Ltd. recorded in Book E426, Page 686 of the RMC
Office for Charleston County, as amended by that certain First Amendment
to Operating and Easement Agreement between Target Corporation and
Sembler Family Partnership #26, Ltd. (the "OEA").
Ladies and Gentlemen:
The following statements are made with the knowledge that (Inland Entity),
and their respective successors and assigns (individually and collectively, as
applicable, "Purchaser"), and their respective lenders and/or investors, are
relying on them in connection with the acquisition and financing of the certain
property encumbered by the OEA by Purchaser and Purchaser and its respective
lenders, successors, assigns and successor owners of such property may rely on
such statements for that purpose.
The undersigned hereby certifies, represents, warrants, covenants and
agrees as follows:
1. The undersigned is a party to (or owns certain property benefited
and/or burdened by) the OEA. There have been no amendments, modifications,
revisions or supplements to the OEA other than as noted above.
2. The OEA is in good standing and in full force and effect.
3. No parties to the OEA (or properties benefited and/or burdened by the
OEA) are in default under the OEA beyond any applicable cure period, and no
event has occurred which, with the giving of notice or passage of time, or both,
could result in such default. As of the date of this estoppel certificate, there
is no dispute or litigation between or among any of the parties to the OEA or
properties benefited and/or burdened by the OEA.
EXECUTED as of the ___ day of ____________, 2004.
_______________, a ____________
_______________________________
By:
----------------------------
Name:
--------------------
Its:
---------------------
2
<Page>
EXHIBIT "G"
Tenant Letter
(Landlord Letterhead)
_________ _____,2004
Insert Tenant Name
Insert Tenant Address
Re: The lease dated _______________ (collectively, with any and all
amendments thereto, the "Lease") between ______________ as tenant
("Tenant") and _________ as landlord ("Landlord") for property located
at North Rivers Town Center (the "Property")
Dear Tenant;
Please be advised that the Property, subject to the above-referenced Lease,
has been sold as of _________ ____, 2004 to (Inland Entity) . (Inland
Entity) has hired Inland Northwest Management Corp, as its managing agent for
the Property. Effective immediately, all rent payments pursuant to the Lease
should be made payable to (Inland Entity) and sent to the following address:
Inland Northwest Management Corp
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: JoAnn Armenta
Telephone: (630) 218-4928
Facsimile: (630) 645-3788
In addition, all notices and other communications provided by Tenant under
the Lease should be sent to (Inland Entity) at the address set forth above.
In addition, please contact your insurance agent to have a certificate
forwarded, naming as additional insured: (i) Inland Northwest Management Corp,
and (ii) (Inland Entity). Thank you for your time and attention to this matter.
Very truly yours,
Sembler Family Partnership #26, Ltd.
By:
--------------------------------
3
<Page>
cc: (Inland Entity)
4
<Page>
EXHIBIT "H"
Seller's Affidavit
South Carolina Withholding Tax
S.C. Code Section 12-8-10 through 12-8-2040 et.seq.
THIS IS AN AFFIDAVIT OF FACTS. WHETHER OR NOT THIS AFFIDAVIT IS SUFFICIENT
TO RELIEVE THE BUYER OF THE RESPONSIBILITIES TO WITHHOLD IS GOVERNED BY SC
REVENUE RULING 90-3. PLEASE READ THIS AFFIDAVIT CAREFULLY IN CONJUNCTION
WITH THIS RULING.
The undersigned on oath, being first duly sworn, hereby certifies as follows:
This affidavit is being given in connection with a sale of real estate pursuant
to SC Revenue Ruling #90-3.
I have attached to this affidavit a description of real property and any
tangible personal property being sold as part of this sale. The real
property is located in the County of Charleston and its tax map number(s)
is ______________.
The undersigned is the seller of the property described in the attached
description.
The closing date of this sale is _____________, 2004.
The Seller's name _____________________________________________________________.
The Seller's address is _____________________________________________________.
The Seller's social security number or taxpayer identification number ________.
1. ____ CORPORATIONS. The Seller is a corporation or an association or
trust that is taxed as a corporation and is subject to withholding
at 5%.
2. ____ GAIN. I affirm pursuant to section 12-9-510(B) that the amount of
gain I am required to recognize on this transaction and on which Buyer
is to make the requisite withholding will not exceed:
a. $____________________
3. ____ INSTALLMENT SALE. The Seller will report this sale on the
installment for South Carolina income tax purposes, and has attached an
amortization schedule correctly designating the principal and interest
portions of the payments.
4. ____ RESIDENT. The Seller is a resident of South Carolina, as that term
is defined in the South Carolina tax laws (S.C. Code Section 12-1-10 et.
seq. as amended) and in SC
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Revenue Ruling #90-3.
5. ____ DEEMED RESIDENT. Pursuant to SC Revenue Ruling #90-3 the seller is
deemed to be a resident of South Carolina because:
a. The Seller:
i. has filed at least one South Carolina income tax return,
ii. is not delinquent with respect to fling any South Carolina
income tax return and
iii. has been in business in the State during the Seller's last
two taxable years (including the year of the sale); and
b. The Seller is in business in South Carolina and will continue
substantially the same business in South Carolina after the sale;
and
c. The Seller will report the sale on a South Carolina income tax
return for the current year and file it by its due date; and
d. If the Seller is a corporation or a limited partnership, it is
registered to do business in South Carolina,
6. ____ EMPLOYEE RELOCATION. The transaction involves the sale of an
employee's property which is being sold by an employee or relocation
company in connection with the employee's transfer. For income tax
purposes the sale is treated as a sale by the employer or relocation
company.
7. ____ NONRECOGNITION OF GAIN. The sale of the property will not be
subject to taxes because of Section 1033, 1034 or 121 of the Internal
Revenue Code. The Seller acknowledges his obligation to file South
Carolina income tax return for the year of the sale. If the Seller
fails to comply with Section 1033 or 1034, the Seller acknowledges an
obligation to file an amended South Carolina income tax return for the
year of the sale.
8. ____ TAX-EXEMPTION ORGANIZATIONS. The Seller is an organization exempt
from income taxes under Internal Revenue Code Section 501(a) or is an
insurance company exempt from South Carolina taxes on income.
9. ____ WITHHOLDING AMOUNT EQUALS ENTIRE NET PROCEEDS. If the withholding
amount is limited to the entire net proceeds, any lien, mortgage or
credit line advance which was made within one year prior to the closing
was not made in contemplation of the sale as that phrase is defined in
SC Revenue Ruling #90-3.
10. ____ LIKE KIND EXCHANGE. The entire gain is deferred under Section 1031
of the Internal Revenue Code. For deferred exchanges where replacement
property has not been identified at the time of sale, tax must be
withheld.
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The undersigned understands that this affidavit may be disclosed to the South
Carolina Tax Commission 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 Affidavit and to
the best of my knowledge and belief, it is true, correct and complete.
Area Commission for Berkeley-Charleston-Dorchester
Technical Education Center
BY: (SEAL)
------------------------
Its:
---------------------------
SUBSCRIBED AND SWORN to
before me this_____day of April 2004.
- ----------------------------
Notary Public
My commission expires:
----------------------------
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EXHIBIT "I"
[DATE]
[Name of Purchaser]
2901 Butterfield Road
Oak Brook, Illinois 60523
KPMG LLP
KPMG Plaza
303 East Wacker Drive
Chicago, Illinois 60601
Re: Name of Property (the "Property")
Ladies and Gentlemen:
This will confirm that following the closing, the undersigned will (1)
reasonably cooperate with you, at your sole cost and expense, with respect to
your audit of the financial information of the Property, including providing
additional financial or other information, if any, in our possession or control,
relating to the Property; and (2) provide an update of the audit letter we are
providing on the same date hereof to KPMG certifying that to the best of our
knowledge, no changes have occurred since the date of such letter that would
make any of the representations and certifications therein inaccurate in any
material respect.
Very truly yours,
NAME OF SELLER
By:
-------------------------------
Name:
----------------------
Its:
-----------------------
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EXHIBIT "J"
Audit Representation Letter
DATE
KPMG LLP
KPMG Plaza
303 East Wacker Drive
Chicago, IL 60601
Ladies and Gentlemen:
We are writing you, as the owners of THE PROPERTY'S NAME (the "Property") at
your request, to confirm our understanding that your audit of the Historical
Summary of Gross Income and Direct Operating Expenses ("Historical Summary") of
THE PROPERTY'S NAME for (a) the year ended December 31, 2003, and (b) the period
of time commencing as of January 1, 2004 and ending on (and including) the
closing date, was made for the purpose of expressing an opinion as to whether
the Historical Summary presents fairly, in all material respects, the gross
income and direct operating expenses in conformity with the CASH OR ACCRUAL
basis of accounting. In connection with your audit, we confirm, to the best of
our knowledge and belief, the following representations made to you during the
audit:
1. We have made available to you:
a) All financial records and related data requested by you.
b) All minutes of the meetings of the board of directors, or summaries of
actions of recent meetings for which minutes have not yet been
prepared.
2. There have been no:
a) Instances of fraud involving any member of management or employees who
have significant roles in internal control.
b) Instances of fraud involving others that could have a material effect
on the Historical Summary.
c) Other instances of fraud perpetuated on or within the Property.
d) Communications from regulatory agencies concerning non-compliance
with, or deficiencies in, financial reporting practices that could
have a material effect on the Historical Summary.
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e) Violations or possible violations of laws or regulations, the effects
of which should be considered for disclosure in the Historical Summary
or as a basis for recording the loss contingency.
3. There are no:
a) Unasserted claims or assessments that out lawyer has advised us are
probable of assertion and must be disclosed in accordance with the
Statement of Financial Accounting Standards (SFAS) No. 5, Accounting
for Contingencies.
b) Material liabilities or gain or loss contingencies (including oral and
written guarantees) that are required to be accrued or disclosed by
SFAS No. 5.
c) Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
d) Events that have occurred subsequent to the balance sheet date and
through the date of this letter that would require adjustment to or
disclosure in the Historical Summary.
4. The property has complied with all aspects of 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.
Further, we confirm that we are responsible for the fair presentation in the
Historical Summary of Gross Income and Direct Operating Expenses for the year
ended December 31, 2003, and for the period of time commencing on January 1,
2004 and ending on (and including) the Closing Date, in conformity with the CASH
OR ACCRUAL basis of accounting.
Very Truly Yours,
- ----------------------------
NAME, Owner
- ----------------------------
NAME, Property Accountant
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