<Page>
Exhibit 10.333
Paradise Shoppes of Dallas
Dallas, Georgia
Seventh Amendment to Agreement
SEVENTH AMENDMENT TO AGREEMENT
THIS SEVENTH AMENDMENT TO AGREEMENT (the "Seventh Amendment") is made and
entered into as of the 29th of June, 2004, by and between PARADISE SHOPPES OF
DALLAS, LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended by Amendment to
Agreement dated June 7, 2004 and by Second Amendment to Agreement dated June 11,
2004 and by Third Amendment to Agreement dated June 18, 2004, by Fourth
Amendment to Agreement dated June 21, 2004, by Fifth Amendment to Agreement
dated June 24, 2004 and by Sixth Amendment to Agreement dated June 25, 2004
(collectively, "the Agreement"), for the sale and purchase of the property
commonly known as Paradise Shoppes of Dallas shopping center located in Dallas,
Georgia, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the Agreement
is hereby further amended by extending the date from "8:00 p.m. Chicago
Time on June 29, 2004" to "8:00 p.m. Chicago Time on June 30, 2004" for
the limited purpose of approval of the environmental condition of the
property.
2. The "Closing", as defined in Section 2(a) of the Agreement, is hereby
amended to provide that the closing shall occur on or before July 1,
2004.
3. This Seventh Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Amendment. Each person executing this
Seventh Amendment represents that such person has full authority and
legal power to do so and bind the party on whose behalf he or she has
executed this Seventh Amendment. Any counterpart to this Seventh
Amendment may be executed by facsimile copy and shall be binding on
the parties.
Except as modified herein and as previously amended, the Agreement and the
Amendment to Agreement and the Second Amendment to Agreement and the Third
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Seventh Amendment to Agreement
Amendment to Agreement and the Fourth Amendment to Agreement and the Fifth
Amendment to Agreement and the Sixth Amendment to Agreement and the Seventh
Amendment to Agreement shall remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Seventh Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Steven D. Sanders
-----------------------------
Name:
---------------------------
Title: SR VP
--------------------------
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Name: Michael T. Wagner
---------------------------
Title: Vice President
--------------------------
3
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Sixth Amendment to Agreement
SIXTH AMENDMENT TO AGREEMENT
THIS SIXTH AMENDMENT TO AGREEMENT (the "Sixth Amendment") is made and
entered into as of the 25th of June, 2004, by and between PARADISE SHOPPES OF
DALLAS, LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended by Amendment to
Agreement dated June 7, 2004 and by Second Amendment to Agreement dated June 11,
2004 and by Third Amendment to Agreement dated June 18, 2004, by Fourth
Amendment to Agreement dated June 21, 2004 and by Fifth Amendment to Agreement
dated June 24, 2004 (collectively, "the Agreement"), for the sale and purchase
of the property commonly known as Paradise Shoppes of Dallas shopping center
located in Dallas, Georgia, as legally described by the Agreement (the
"Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the Agreement
is hereby further amended by extending the date from "8:00 p.m. Chicago
Time on June 25, 2004" to "8:00 p.m. Chicago Time on June 29, 2004" for
the limited purpose of approval of the environmental condition of the
property.
2. This Sixth Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Sixth
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Sixth Amendment. Any counterpart to this Sixth Amendment
may be executed by facsimile copy and shall be binding on the parties.
Except as modified herein and as previously amended, the Agreement and the
Amendment to Agreement and the Second Amendment to Agreement and the Third
Amendment to Agreement and the Fourth Amendment to Agreement and the Fifth
Amendment to Agreement and the Sixth Amendment to Agreement shall remain
unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Sixth Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Name: Michael T. Wagner
---------------------------
Title: Vice President
--------------------------
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Fifth Amendment to Agreement
FIFTH AMENDMENT TO AGREEMENT
THIS FIFTH AMENDMENT TO AGREEMENT (the "Fifth Amendment") is made and
entered into as of the 24th of June 2004, by and between PARADISE SHOPPES OF
DALLAS, LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC., an Illinois corporation ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended by Amendment to
Agreement dated June 7, 2004 and by Second Amendment to Agreement dated June 11,
2004 and by Third Amendment to Agreement dated June 18, 2004 and by Fourth
Amendment to Agreement dated June 21, 2004 (collectively, "the Agreement"), for
the sale and purchase of the property commonly known as Paradise Shoppes of
Dallas shopping center located in Dallas, Georgia, as legally described by the
Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the
Agreement is hereby further amended by extending the date from "June
24, 2004," to "8:00 p.m. Chicago Time on June 25, 2004" for the
limited purpose of approval of the environmental condition of the
property.
2. This Fifth Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Fifth
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Fifth Amendment. Any counterpart to this Fifth Amendment
may be executed by facsimile copy and shall be binding on the parties.
Except as modified herein and as previously amended, the Agreement and the
Amendment to Agreement and the Second Amendment to Agreement and the Third
Amendment to Agreement and the Fourth Amendment to Agreement and the Fifth
Amendment to Agreement shall remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Fifth Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ G. Joseph Cosenza
-----------------------------
Name: G. Joseph Cosenza
---------------------------
Title: President
--------------------------
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Name: Michael T. Wagner
---------------------------
Title: Vice President
--------------------------
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Fourth Amendment to Agreement
FOURTH AMENDMENT TO AGREEMENT
THIS FOURTH AMENDMENT TO AGREEMENT (the "Fourth Amendment") is made and
entered into as of the 21st of June 2004, by and between PARADISE SHOPPES OF
DALLAS, LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC., AN ILLINOIS CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended by Amendment to
Agreement dated June 7, 2004 and by Second Amendment to Agreement dated June 11,
2004 and by Third Amendment to Agreement dated June 18, 2004 (collectively, "the
Agreement"), for the sale and purchase of the property commonly known as
Paradise Shoppes of Dallas shopping center located in Dallas, Georgia, as
legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the
Agreement is hereby further amended by extending the date from "June
21, 2004," to "June 24, 2004" for the limited purpose of approval of
the environmental condition of the property.
2. This Fourth Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Fourth
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Fourth Amendment. Any counterpart to this Fourth
Amendment may be executed by facsimile copy and shall be binding on the
parties.
Except as modified herein and as previously amended, the Agreement and the
Amendment to Agreement and the Second Amendment to Agreement and the Third
Amendment to Agreement and the Fourth Amendment to Agreement shall remain
unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Fourth Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Steven D. Sanders
-----------------------------
Name:
---------------------------
Title: SR VP
--------------------------
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Name: MICHAEL T. WAGNER
---------------------------
Title: VICE PRESIDENT
--------------------------
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Third Amendment to Agreement
THIRD AMENDMENT TO AGREEMENT
THIS THIRD AMENDMENT TO AGREEMENT (the "Third Amendment") is made and
entered into as of the 18th of June 2004, by and between PARADISE SHOPPES OF
DALLAS, LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS, INC., AN ILLINOIS CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended by Amendment to
Agreement dated June 7, 2004 and by Second Amendment to Agreement dated June 11,
2004 (collectively, "the Agreement"), for the sale and purchase of the property
commonly known as Paradise Shoppes of Dallas shopping center located in Dallas,
Georgia, as legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the
Agreement is hereby further amended by extending the date from "June
18, 2004," to "June 21, 2004" for the limited purpose of approval of
the environmental condition of the property.
2. This Third Amendment may be executed in one or more counterparts, each
of which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Third
Amendment represents that such person has full authority and legal
power to do so and bind the party on whose behalf he or she has
executed this Third Amendment. Any counterpart to this Third Amendment
may be executed by facsimile copy and shall be binding on the parties.
Except as modified herein and as previously amended, the Agreement and the
Amendment to Agreement and the Second Amendment to Agreement and the Third
Amendment to Agreement shall remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Third Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Name: MICHAEL T. WAGNER
---------------------------
Title: VICE PRESIDENT
--------------------------
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Second Amendment to Agreement
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT (the "Second Amendment") is made and entered
into as of the 11th of June 2004, by and between PARADISE SHOPPES OF DALLAS,
LTD., a Florida limited partnership ("Seller") and INLAND REAL ESTATE
ACQUISITIONS INC., AN ILLINOIS CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4, 2004 as amended (collectively, "the
Agreement"), for the sale and purchase of the property commonly known as
Paradise Shoppes of Dallas shopping center located in Dallas, Georgia, as
legally described by the Agreement (the "Property").
WHEREAS, Buyer and Seller have mutally agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the Agreement
is hereby amended by deleting the date of "June 11, 2004," and
inserting the date of "June 18, 2004" therein.
2. This Second Amendment may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken
together shall constitute one Second Amendment. Each person executing
this Second Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she
has executed this Second Amendment. Any counterpart to this Second
Amendment may be executed by fascimile copy and shall be binding on
the parties.
Except as modified herein and as previously amended, the Agreement shall
remain unmodified and in full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Second Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Steven D. Sanders
-----------------------------
Steven D. Sanders
Senior Vice President
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Michael T. Wagner
Vice President
2
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Amendment to Agreement
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT (the "Amendment") is made and entered into as of the
7th of June 2004, by and between PARADISE SHOPPES OF DALLAS, LTD., a Florida
limited partnership ("Seller") and INLAND REAL ESTATE ACQUISITIONS, INC., AN
ILLINOIS CORPORATION ("Buyer").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement of Purchase
and Sale of Shopping Center dated June 4th, 2004 ("the Agreement"), for the sale
and purchase of the property commonly known as Paradise Shoppes of Dallas
shopping center located in Dallas, Georgia, as legally described by the
Agreement (the "Property").
WHEREAS, Buyer and Seller have mutually agreed to amend certain provisions
of the Agreement.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Buyer and Seller agree as follows:
1. The "Due Diligence Period", as defined in Section 7(a) of the Agreement
is hereby amended by deleting the date of "June 7, 2004," and inserting
the date of "June 11, 2004" therein.
2. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall constitute one Amendment. Each person executing this Amendment
represents that such person has full authority and legal power to do so
and bind the party on whose behalf he or she has executed this
Amendment. Any counterpart to this Amendment may be executed by
facsimile copy and shall be binding on the parties.
Except as modified herein, the Agreement shall remain unmodified and in
full force and effect.
(SIGNATURE PAGE FOLLOWS)
<Page>
Paradise Shoppes of Dallas
Dallas, Georgia
Amendment to Agreement
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Steven D. Sanders
Steven D. Sanders
Senior Vice President
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc., a
Florida corporation, its General Partner
By: /s/ Michael T. Wagner
-----------------------------
Michael T. Wagner
Vice President
2
<Page>
AGREEMENT OF PURCHASE AND SALE OF SHOPPING CENTER
(Paradise Shoppes of Dallas, Dallas, Georgia)
This Agreement of Purchase and Sale of Real Property (the "Agreement") is
dated as of the 4th day of June, 2004 (the "Effective Date") and is entered into
by the following parties:
SELLER: PARADISE SHOPPES OF DALLAS, LTD., a Florida limited partnership
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC., or its nominee
1. THE PROPERTY.
The property to be purchased by Buyer shall consist of the following: (a)
that certain real property legally described on Exhibit A attached hereto,
consisting of approximately 10.3 +/- acres of land, and 70,610 square feet of
net rentable square feet, and located in the northeast quadrant of the
intersection of Highway 381 (Dallas Ackworth Highway) and East Paulding Drive,
Dallas, Georgia and commonly known as the Paradise Shoppes of Dallas shopping
center (the "Property"), which Property does not include "Outparcels 1-6,"
"Parcel 2," and "Parcel 2A," as referenced in Section 18(s), below, (b) all of
the right, title and interest of Seller in, to and under all Leases (as defined
in subsection 5(a) below) of the Property, (c) all improvements located upon the
Property, (d) all personal property, if any, owned by Seller and used in
connection with the Property, (e) all shrubs, trees, plants and other
landscaping located upon the Property, (f) all easements, rights of way, and
other rights appurtenant to the Property, and (g) all of the right, title and
interest of Seller in and to the name the Paradise Shoppes of Dallas shopping
center.
2. CLOSING; ESCROW.
(a) The closing of the transaction contemplated by this Agreement (the
"Closing") shall occur at the office of the Earnest Money Escrowee (as
hereinafter defined) or by mail-away closing on a date to be agreed-upon between
Buyer and Seller, in any event no earlier than June 21, 2004, nor later than
June 25, 2004.
(b) The Closing shall occur in accordance with the general provisions of
the usual form of deed and money escrow agreement then in use by the Earnest
Money Escrowee with such special provisions inserted in the escrow agreement as
may be required to conform with this Agreement. Upon the creation of such
escrow, anything herein to the contrary notwithstanding, payment of the Purchase
Price (as hereinafter defined) and delivery of the deed shall be made through
the escrow and the Earnest Money (as hereinafter defined) shall be deposited
into the escrow. Counsel for the respective parties are hereby authorized to
execute the escrow trust instructions, as well as amendments thereto. 'Each of
Seller and Buyer agrees to comply with the requirements of the Earnest Money
Escrowee relative to closing the transaction contemplated by this Agreement. The
cost of the escrow shall be divided equally between Seller and Buyer.
3. CONSIDERATION.
The consideration to be paid to Seller by Buyer for the purchase of the
Property (the "Purchase Price") shall be the sum of Thirteen Million Fifty-two
Thousand One Hundred Twenty-six and no/100 Dollars ($13,052,126.00). The
Purchase Price shall be satisfied as follows:
(a) Buyer shall deposit with Chicago Title and Trust Company, 171 North
Clark Street, Chicago, Illinois attention: Nancy Castro (the "Earnest Money
Escrowee"), an earnest money check in the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00) (the "Earnest Money") for the mutual benefit of the
parties. The disposition of the Earnest Money shall be governed by the terms of
this Agreement from and after the date hereof. In the event the Earnest Money
Escrowee timely receives Buyer's written notice that Buyer has elected to
terminate this Agreement in accordance with the terms of the Agreement, the
Earnest Money and any interest earned thereon shall be returned
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to Buyer. At Buyer's option, the Earnest Money shall either be applied to the
Purchase Price and paid to Seller in cash at Closing; or the full amount of the
Purchase Price (after adjustments and credits) shall be funded by Buyer and the
Earnest Money shall be released to Buyer.
(b) At Closing, a cash payment in the amount of the Purchase Price plus or
minus prorations, credits and adjustments as provided in Section 8 and elsewhere
in this Agreement, by wire transfer or other immediately available United States
funds.
4. INSPECTION RIGHTS
From and after the date hereof through the expiration of the Due Diligence
Period (as hereinafter defined), Buyer may cause one or more surveyors,
engineers, architects, auditors, appraisers and/or other experts of its choice
to inspect any documents related to the Property and to inspect, examine,
survey, obtain engineering inspections on, obtain environmental reports for,
appraise, audit and otherwise perform such activities which, in the opinion of
Buyer, are necessary to determine the condition of the Property and to determine
the suitability of the Property for the uses and investment intended by Buyer;
except that, notwithstanding the foregoing, in conducting such activities, Buyer
shall not unreasonably interfere with the business of Seller or the business of
Seller's tenants. Buyer shall defend, indemnify and hold harmless Seller from
and against any and all liability, loss, cost, expense and damage (including,
without limitation, reasonable attorneys' fees) suffered or incurred by Seller
and caused by Buyer or its representatives or any of their respective employees
or agents in connection with such activities, and, without limitation of the
foregoing, Buyer shall repair any damage to the Property caused by any such
activities. Buyer shall provide Seller with an insurance certificate prior to
its entry onto the Property for the purposes described by this Section 4. Seller
agrees to make its books and records relating to the Property available for
inspection and audit by Buyer or its agents and Seller further agrees to make
such representations as may be required by Buyer's auditors in order for such
auditors to issue a certified audit, at Buyer's sole cost and expense, of the
Property's operations. Buyer may review and make copies of any of Seller's
files, books and records relating to the Property. Buyer agrees that all
confidential information received from Seller and relating to the Property shall
be held in confidence (except as disclosure may be required by law) whether or
not this Agreement is terminated for any reason.
5. SELLER'S REQUIRED PRE-CLOSING DELIVERIES
Within five (5) days of the Effective Date, Seller shall deliver to Buyer
the following (which, along with the Preliminary Commitment referred to in
subsection 6(a) hereof and the Survey (as hereinafter defined), are referred to
herein as "Pre-Closing Deliveries"), provided such items are in Seller's
possession or control:
(a) a true and correct copy of the leases described upon the Rent Roll
attached hereto as Exhibit E, and made a part hereof (respectively, the "Lease,"
and collectively, the "Leases") affecting the Property (and subleases and
license agreements in Seller's possession) together with all modifications and
amendments thereof;
(b) a certification from Seller (pursuant to the terms of the Rent Roll)
setting forth the name of each tenant at the Property and the date of the Leases
and any modifications or amendments thereto, the amount of rent payable by each
tenant throughout the term of its respective Lease, any concessions granted to
the tenants, the amount of security deposits, if any (or a certification that
Seller is not holding any security deposits), the expiration date of the Leases,
and the existence of any options to renew or extend the term of the Leases or to
purchase all or any part of the Property and such information with respect to
any subtenant if Seller has knowledge thereof;
(c) a certification by Seller that there are no employees of Seller at the
Property;
(d) a certification by Seller that, other than as disclosed to Buyer, there
are no service agreements, maintenance contracts or other similar agreements
affecting the Property;
(e) copies of the most recent tax bill for the Property, together with
copies of any notice of assessments received by Seller, or any other information
relative to taxes assessed against the Property;
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<Page>
(f) copies, if any, of any environmental reports, architectural drawings,
plans and specs or any similar document in Seller's possession relating to the
Property, or in the alternative, a certification from Seller that no such
reports, drawings, plans or specifications are in Seller's possession;
(g) a certification from Seller that there is no personal property of
Seller located at the Property (with the possible exception of hurricane panels
which shall be included in the sale of the Property);
(h) the most current survey of the Property and a copy of the most current
title commitment or owner's title insurance policy relative to the Property, if
any, that are in Seller's possession or control;
(i) copies of any insurance policies or certificates insuring the Property,
whether purchased by Seller or by the tenants under the Leases;
(j) copies of certificates of occupancy for each tenant at the Property and
copies of any building code violations received by Seller with respect to the
Property during the last two years and evidence reasonably acceptable to Buyer
that such violations have been or are in the process of being corrected, or a
certification from Seller that it has not received any notice of building code
violations;
(k) the materials described on Buyer's Due Diligence Checklist, attached
hereto as Exhibit F, and made a part hereof;
(l) as applicable (depending upon the number of years the Property has been
operating), an operating statement for the Property for the two calendar years
prior to the year of the Effective Date hereof, and monthly operating statements
for the Property for each month of the year of the Effective Date. Such
statements shall include reasonable detail of all items of income and expense,
as well as all items of capital expenditures made during the relevant periods;
and
(m) an engagement and representation letter signed by Seller prepared by
and for the benefit of Buyer's auditors, substantially in the form attached
hereto as Exhibit K, and made a part hereof.
6. TITLE AND SURVEY MATTERS.
(a) Survey.
Buyer shall, as soon as practicable after the Effective Date, obtain an
update to Seller's existing as-built survey of the Property to Buyer's
specifications (the "Survey"). The Survey shall indicate whether or not the
Property or any part thereof is located within a flood plain area, and the
surveyor shall prepare and deliver elevation certificates in favor of Buyer. At
Buyer's request, Seller will reasonably assist Buyer in obtaining the Survey
from the surveyor. The Survey shall be certified to the Title Company, Buyer,
Seller, Buyer's lender, and Buyer's grantee, if applicable.
(b) PRELIMINARY TITLE REPORT; PERMITTED EXCEPTIONS.
Seller shall, as soon as practicable after the Effective Date of this
Agreement, furnish to Buyer and Seller a commitment for Owner's ALTA Title
Insurance, Marketable Form B, with extended coverage over the general exceptions
dated not sooner than the Effective Date and applicable to the Property (the
"Commitment") issued by a national title insurance company reasonably acceptable
to both Buyer and Seller (Chicago Title, First American, or
Lawyer's/LandAmerica) (the "Title Company") setting forth the state of title to
the Property including all exceptions and restrictions of record including deed
restrictions, liens and covenants. Said Commitment shall indicate that Seller is
the sole owner of the Property and shall indicate the amount of any real estate
taxes attributable to the Property. Along with such Commitment, Buyer shall also
be furnished with copies of all documents affecting the Property as reflected in
the Commitment. In the event any exceptions appear in such Commitment or title
documents
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other than the standard printed exceptions (which shall be modified in the
Owner's Title Policy as hereafter provided) or in the Survey referenced in
Section 6(a), above, that are unacceptable to Buyer in its sole discretion, then
Buyer shall, prior to the expiration of the Due Diligence Period (as hereinafter
defined), notify Seller in writing of such fact. Seller may, at Seller's option,
undertake to eliminate or modify such unacceptable exceptions to the reasonable
satisfaction of Buyer. In the event Seller is unwilling or unable, with the
exercise of due diligence, to satisfy said obligations within twenty (20) days
after said notice, Buyer may, at its option, (i) accept title to the Property
subject to the objections raised by Buyer, without an adjustment in the Purchase
Price, in which event said objections shall be deemed to be waived for all
purposes; or (ii) rescind this Agreement upon notice to Seller and the Earnest
Money Escrowee, whereupon the Earnest Money shall be immediately returned to
Buyer with any accrued interest thereon and this Agreement shall be of no
further force and effect. Notwithstanding the foregoing, Seller shall be
obligated to satisfy any monetary liens encumbering the Property on or prior to
the date of Closing. Further, in the event Seller undertakes to eliminate or
modify any such unacceptable exceptions within the prescribed twenty (20) day
period, and Seller's completion of such acts occurs following the expiration of
the Due Diligence Period, Closing shall occur within ten (10) days after the
completion of Seller's curative acts.
(c) MANNER OF CONVEYANCE; IDENTITY OF GRANTEE.
At Closing, Seller shall deliver to Buyer a Limited Warranty Deed with
respect to the Property. On or prior to five (5) days prior to the Closing date,
Buyer shall, subject to subsection 18(h) below, notify Seller in writing of the
identity of Buyer's grantee for the Property.
(d) TITLE INSURANCE POLICY.
Seller shall have furnished Buyer with the Commitment as required by
Section 6(b) of this Agreement, and such Commitment shall be updated by Seller
at Closing with such update showing no change in the status of title as
previously approved by Buyer, and within thirty (30) days after Closing, Seller
shall provide Buyer with an Owner's Title Insurance Policy in the amount of the
Purchase Price, together with the endorsements described in Section 9(a)(i),
below, if available under Georgia law.
7. BUYER'S RIGHTS TO TERMINATE THIS AGREEMENT
(a) If Buyer is not satisfied for any reason, or for no reason, in any
respect, in the judgment of Buyer, with the Property, then Buyer may terminate
this Agreement provided that written notice thereof is received by Seller and
Earnest Money Escrowee on or prior to 5:00 P.M., Eastern time on June 7, 2004
(the "Due Diligence Period").
(b) Upon termination of this Agreement pursuant to this Section 7 (i) the
Earnest Money (and all interest earned thereon, if any) shall immediately be
returned to Buyer by the Earnest Money Escrowee, (ii) neither party shall have
any further liability or obligation to the other except for the Post-Termination
Obligations, as hereinafter defined in subsection 7(c), and (iii) Buyer shall
immediately return to Seller any documents received from Seller during the Due
Diligence Period, and shall thereafter keep all confidential information
received as a result of its inspection in confidence. Nothing contained in
Section 4, or this Section 7, regarding Buyer's confidentiality obligations
shall prohibit or restrict Buyer from disclosing any confidential information
received by Buyer from Seller to lawyers, accountants, auditors or other
professionals utilized by Buyer as part of its due diligence investigations, or
any lender or due diligence officer or personnel of any broker-dealer for the
sale of securities or as may be required by law.
(c) As used in this Agreement, the "Post-Termination-Obligations" shall
mean and refer to the indemnity and repair provisions of Section 4, the
indemnity provisions of Section 14 hereof, and Buyer's confidentiality
obligations described under Section 4 and subsection 7(b), hereof. Such
Post-Termination Obligations shall survive any termination of this Agreement.
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8. PRORATIONS AND ADJUSTMENTS
The following items shall be prorated and adjusted between Buyer and Seller
at the Closing:
(a) Security deposits described by the Leases shall be credited to Buyer at
Closing. Real estate property taxes and assessments due and payable prior to the
date of Closing shall be paid in full on or prior to the Closing date. Real
estate property taxes and assessments accrued and assessed against the Property
but not yet due and payable shall be accounted for and prorated as of the date
of Closing on the basis of the most currently issued (at the time of Closing)
real estate tax bills and the net credit to Buyer shall be paid as a credit
against the Purchase Price. All installments accruing prior to the date of
Closing with respect to statutory taxes, liens or assessments, special or
otherwise, against the Property, certified as of the date of the Closing, shall
be paid by Seller and such items which are not certified, as of the date of the
Closing, and all installments accruing after the date of Closing, shall be
assumed by Buyer. Notwithstanding the foregoing, Seller hereby represents and
warrants to Buyer that Seller has no knowledge of any special assessments
affecting the Property. The real estate taxes shall be reporated within ninety
(90) days of issuance of the actual tax bills. In addition, any deposits for
real estate taxes (and assessments) made by any tenant(s) shall be credited to
Buyer at Closing and shall be treated as a like-amount reduction in Buyer's real
estate tax proration. If any general or special assessment (as contrasted to ad
valorem taxes) are payable in installments, Buyer shall receive a cash credit at
Closing for the gross amount due.
(b) Rent, percentage rent and reimbursements for common area maintenance
charges, insurance premiums and other lease charges (other than real estate
taxes and assessments, which shall be accounted for and prorated as provided in
subsection 8(a) above) shall be accounted for and prorated as follows: except as
otherwise provided in this Agreement, Buyer shall be entitled to all rents,
percentage rent, miscellaneous income and reimbursements for common area
maintenance charges, insurance premiums and other lease charges (other than real
estate taxes and assessments) accruing on the date of and after the Closing, and
Seller shall be entitled to all such items, if any, accruing prior to the
Closing. At Closing, Seller shall credit Buyer in an amount equal to the
scheduled rent and reimbursements through the end of the month in which Closing
occurs and Seller shall retain such payments as received from the tenants.
Seller and Buyer further agree that percentage rent for each tenant shall be
prorated as of the Closing based upon the amount of percentage rent, if any,
that was payable by such tenant in the most recently completed percentage rent
year under its Lease as to which the final amount of percentage rent, if any,
that is owing has been determined (but with such adjustments, if any, as Seller
and Buyer mutually and reasonably agree are appropriate due to any change in the
manner of calculation of percentage rent that is owing from such tenant with
respect to any period as to which a proration is applicable). Seller shall not
receive any credit at Closing with respect to any unpaid accrued rents,
percentage rents and reimbursements for common area maintenance charges,
insurance premiums and other lease charges owing from tenants of the Property as
of the Closing date; provided, however, the foregoing provisions shall not apply
to the Seller's lease with Publix Super Markets, Inc. ("Publix;" the "Publix
Lease"). Any unpaid accrued rents, percentage rents and reimbursements for
common area maintenance charges, insurance premiums and other lease charges
owing from Publix for the calendar year during which this transaction closes
shall be prorated as of the Closing date and in regard to real estate taxes,
such proration shall be based upon the Property real estate taxes for the prior
calendar year (unless the tax bill for the year of Closing is available). Seller
shall not retain any security deposits or prepaid rent to offset any unpaid
accrued rent or other unpaid amounts. With respect to any such unpaid amounts,
(x) Seller shall retain the right, at its expense, to sue the applicable tenant
for collection of any such unpaid amounts and, to the extent the applicable
lease permits, collection costs and interest (and, in such regard, Buyer agrees
to cooperate reasonably with any efforts by Seller to collect the aforesaid
unpaid amounts (which cooperation shall not include Buyer incurring any third
party costs); provided, however, Seller shall not be entitled to sue for
possession), and (y) if Buyer collects any such unpaid amounts, Buyer shall
promptly pay such amounts to Seller (and in such regard, if Buyer receives any
amount from a tenant of the Property and such tenant specifically informs Buyer
in writing to which lease obligation such payment is to be applied, Buyer shall
so apply such payment; if such tenant docs not so inform Buyer relative to how a
particular payment is to be applied, Buyer shall be entitled to apply such
payment first, on account of past due amounts owed to Buyer; second, on account
of current amounts owed to Buyer; and third, on account of past due amounts owed
to Seller). Buyer shall receive a credit at Closing in the amount of any balance
remaining in any Tenant's common area maintenance escrow account accruing from
the date Seller last reconciled such account with each Tenant, less current
expenses.
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(c) EXPENSE PRORATIONS. Except insofar as the same constitute expenses pro
ratable under subsection 8(a) or 8(b) above, utility charges and deposits, fuels
and all other items of expense customarily prorated on the transfer of
properties similar to the Property shall be prorated on an accrual basis as of
the Closing date on the basis of the most recent ascertainable bills or on other
reliable information with respect to each item of expense. In the alternative
Seller will provide Buyer with a certification that no additional proratable
items exist with respect to the Property.
(d) For purposes of calculating prorations and adjustments, Buyer shall be
deemed to be in title to the Property, and therefore entitled to income
therefrom and responsible for the expenses thereof, for the entire day on which
the Closing occurs provided that Seller receives the funds due to Seller at
Closing at or prior to 2:00 p.m., Atlanta, Georgia time, on the Closing date, it
being understood and agreed that, if the funds are received after such time on
the Closing date, Seller shall be deemed in title to the Property as aforesaid
for the entire day on which the Closing occurs. Except as otherwise described,
all prorations and adjustments shall be final, except that, in the event of any
computational mistake or error, the parties shall make an appropriate
adjustment(s) in cash between them to correct such mistake or error promptly
after the discovery thereof.
(e) At Closing, Seller shall credit Buyer with an amount equal to the sum
determined in accordance with the terms of Section 3(c), hereof.
(f) The obligations of Buyer and Seller set forth in this Section 8 shall
survive the Closing.
9. COSTS TO BUYER AND SELLER; FINANCING COSTS.
(a) Seller shall pay the following:
(i) the cost of recording releases of any mortgage or other liens, or
of any other instruments recorded to correct title defects; and
(ii) the costs of Seller's counsel.
(b) Buyer shall pay the following:
(i) costs of Buyer's counsel;
(ii) all recording or filing fees (other than recording fees for which
Seller is responsible as provided in subsection 9(a)(i), above);
(iii) the costs of an appraisal of the Property to be obtained by
Buyer;
(iv) the costs of a Phase I environmental site assessment of the
Property to be obtained by Buyer; and
(v) any title charges relating to Buyer's financing, if any.
(c) Buyer and Seller shall each pay one-half (1/2) of the following:
(i) the costs of the Commitment, the copies of documents of record,
the issuance of the Owner's Title policy together with all Buyer
required endorsements and the cost of any title curative
endorsements;
(ii) all escrow fees;
(iii) all State, County and local or municipal transfer taxes; and
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(iv) the costs of the Survey.
10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION.
Buyer's obligation to perform under this Agreement is subject to and
contingent upon the following described matters. In the event such conditions
are not satisfied, Buyer may terminate this Agreement by written notice to
Seller prior to Closing, and upon any such termination the Earnest Money shall
immediately be returned to Buyer and this Agreement shall be null and void,
except for the provisions hereof that expressly survive the termination of this
Agreement.
(a) TITLE CONDITION OF THE PROPERTY.
The Title Company's committing to issue the Title Policy insuring that fee
simple title to the Property is vested in Buyer as required in subsection 6(d)
hereof (as evidenced by a Commitment mark-up delivered to Buyer at Closing).
(b) COMPLETENESS, TRUTH AND ACCURACY.
The completeness, truth and accuracy in all material respects, of the Rent
Roll, and any certifications, schedules, covenants and statements prepared and
executed by Seller as part of the Pre-Closing Deliveries, the completeness in
all material respects of the Leases delivered by Seller as part of the
Pre-Closing Deliveries, the completeness, truth and accuracy in all material
respects, as of Closing, of the representations of Seller contained in Section
11 hereof, and the performance by Seller, to the extent possible by the date of
Closing, of the covenants contained in Section 11 hereof. It shall be a
condition to Buyer's obligation to close with respect to the Property that, at
the Closing, Seller shall deliver to Buyer a Certificate that shall confirm the
truth and accuracy in all material respects, as of Closing, of Seller's
representations contained in this Agreement, and the representations contained
in such certificate, as well as any continuing obligations of Seller hereunder,
shall survive the Closing for a period of twelve (12) months.
(c) OTHER CONDITIONS.
The performance by Seller of all its obligations hereunder in all material
respects, as well as satisfaction of each of the matters described in the
immediately following Sections of this Agreement: (i) 15(a) (Property
tenancies); and (ii) 16 (Seller's obligations regarding Leases; estoppels); and
(iii) 11(d)(ii) (Publix waiver of right of first refusal).
(d) ESTOPPELS.
The receipt by Buyer of the tenant and REA estoppel letters described in
Section 16(a), hereof.
11. REPRESENTATIONS AND COVENANTS OF SELLER
Seller hereby makes the following representations and covenants to Buyer
with regard to the Property, all of which representations and covenants shall be
deemed remade as of Closing and shall survive the Closing for a period of twelve
(12) months:
(a) As of the date hereof, (i) Seller, to its knowledge, is not aware of
and has received no building code violation notices with respect to the Property
(other than notices of violations which have been removed or corrected); and
(ii) Seller, to its knowledge, is not aware of and has received no notices of
any action or governmental proceeding in eminent domain, or for a zoning change,
which would affect the Property; and (iii) Seller to its knowledge, is not aware
of any structural problems in the improvements constructed upon the Property and
the interior and exterior structures are in good condition and repair;
(b) As of the date hereof, there are no leases or rental agreements
affecting the Property other than the
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Leases delivered by Seller to Buyer pursuant to subsection 5(a) above. The
Leases delivered to Buyer and as identified on the Rent Roll attached hereto and
made a part hereof as Exhibit "E" (the "Rent Roll") are true and correct copies
thereof, (except for the Lease with Publix) are "triple net" and (except for the
Lease with Publix) require the tenants thereunder to pay a pro rata share of
taxes, insurance and common area expenses directly to Seller, as landlord under
the Leases. Between the date hereof and the earlier of the Closing date or the
termination of this Agreement, Seller shall not amend, modify or terminate the
Leases, or enter into new leases, of space at the Property, other than in
accordance with subsection 16(b) below. As of the date hereof, Seller is the
holder of all of the landlord's right, title and interest in, to and under the
Leases. Seller has not received, nor is Seller aware of, any claim from any
tenant under the Leases alleging any type of default by the landlord under the
Leases or demanding any work or payment from landlord;
(c) Except as may be disclosed in the Pre-Closing Deliveries, there are no
persons employed by Seller in connection with the operation of the Property, and
except as may be disclosed in the Pre-Closing Deliveries, there are no
maintenance, advertising, management, leasing, employment, or service contracts
affecting the Property that will be in effect at Closing unless expressly
assumed in writing by Buyer. Otherwise, Seller shall terminate any such employee
and any such contracts (not expressly assumed by Buyer) at or prior to Closing.
Notwithstanding the foregoing, Seller shall not be required to terminate any
such contract if such termination requires the payment by Seller of a
"termination fee." A copy of any such agreement shall be provided by Seller to
Buyer within fifteen (15) days of the Effective Date. In such instance, Buyer
shall assume such contract(s) at Closing for a period not to exceed twelve (12)
months from and after Closing;
(d) That (i) Seller has the capacity and requisite authority to enter into
and carry out this Agreement and the transactions contemplated hereby and will
provide evidence thereof to Buyer at Closing; (ii) Seller owns fee simple title
to the Property subject to all matters of record; and (iii) no third party has
any right to purchase all or any part of Property, except for Publix, pursuant
to a Right of First Refusal set forth in the Publix Lease, Seller hereby
agreeing to deliver the Publix waiver of such right to Buyer (or evidence of
Publix waiver in accordance with the terms of the Publix Lease) prior to the
date of Closing as a condition precedent to the obligations of Buyer hereunder;
(e) Except as otherwise expressly provided herein, Seller shall not further
encumber the Property or any of the improvements or personal property located
thereon. Between the date of this Agreement and the earlier of the Closing date
or the termination of this Agreement, Seller shall not voluntarily create any
exception to title to the Property other than in accordance with subsection
16(b) below;
(f) To the best of Seller's knowledge, as of the date hereof, there is no
suit, action or arbitration, or legal or other proceeding or governmental
investigation, pending which materially and adversely affects the Property.
(g) To the best of Seller's knowledge, as of the date hereof, there exists
at the Property no violation of any applicable federal, state or local law,
statute, ordinance, rule or regulation regulating the use, generation, storage,
handling or disposal of any hazardous wastes, toxic, hazardous or dangerous
substances or similar substances or materials defined as hazardous, toxic or
environmentally unsafe under any of the aforesaid laws, statutes, ordinances,
rules or regulations;
(h) No change in the manner of calculation of percentage rent will occur
from the date of delivery of the Pre-Closing Deliveries under Section 5 hereof,
through the date of Closing, except as expressly set forth in the Leases; and
(i) Seller hereby agrees to indemnify, defend and hold harmless Buyer from
and against any and all claims, losses, costs and expenses arising in regard to
any unpaid sales lien owed to the State of Georgia Department of Revenue and
based upon sales made during the period of time the Property was owned by
Seller.
12. POSSESSION; CLOSING DOCUMENTS.
(a) POSSESSION. Full possession of the Property (subject to the rights of
the tenants under the Leases and
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any other Permitted Exceptions) shall be delivered to Buyer by Seller at
Closing.
(b) SELLER'S CLOSING DOCUMENTS. At Closing, Seller shall deliver, or cause
to be delivered, to Buyer the following, each in form reasonably acceptable to
Buyer:
(i) A Limited Warranty Deed with regard to the Property;
(ii) An Assignment of Leases executed by Seller and in the form
of Exhibit B attached hereto and relating to the Leases (which
instrument shall also be executed by Seller's managing agent, if
any), and the original Leases;
(iii) As to any assignable warranties for materials and
workmanship (e.g. roof, HVAC, and parking lot), copies thereof
and an assignment executed by Seller of all of its right, title
and interest in, to and under the same, and also the original
transfer of such warranties assented to by the material and/or
service provider at no cost or expense to Buyer;
(iv) All as-built plans and specifications, if any, relative to
the Property in the possession or control of Seller;
(v) All certificates of occupancy, building permits and similar
governmental approvals affecting the Property;
(vi) A Closing and Proration Statement conforming to the
proration and other relevant provisions of this Agreement;
(vii) Letters to the tenants of the Property in the form attached
hereto as Exhibit I, and made a part hereof;
(viii) The tenant estoppel letters and REA estoppel letters
required to be delivered pursuant to subsection 16(a) hereof; and
(ix) Such other documents and instruments as may reasonably be
required by Buyer and the Title Company and which may be
necessary to consummate this transaction and otherwise to effect
the agreements of the parties hereto.
(c) Buyer's Closing Documents.
At Closing, Buyer shall deliver, or cause to be delivered, to Seller, the
following in form and substance reasonably acceptable to Seller:
(i) Cash on account of the Purchase Price (by wire transfer or
other immediately available United States funds) as required by
Section 3 above;
(ii) An Assignment and Assumption of the Leases executed by Buyer
and in the form of Exhibit B attached hereto, and relating to the
Leases in effect at Closing;
(iii) An assumption by Buyer of the warranties and contracts that
are being assigned to Buyer;
(iv) A Closing and Proration Statement conforming to the
proration and other relevant provisions of this Agreement; and
(v) Such other documents and instruments as reasonably may be
required by Seller and the Title Company and which may be
necessary to consummate this transaction and otherwise to effect
the
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agreements of the parties hereto.
13. DEFAULT.
(a) SELLER DEFAULT DISCOVERED PRIOR TO CLOSING. If, on or before the
Closing date, (x) Buyer is or becomes aware that any of the representations and
warranties made by Seller in this Agreement, or in any document or instrument
executed by Seller and delivered to Buyer in connection with this Agreement or
the Closing hereunder, including the representations made in Section 11 hereof,
are not true and correct, or (y) Buyer is or becomes aware that there is any
material inaccuracy in any, certifications, schedules, covenants or statements
prepared and executed by Seller as part of the Pre-Closing Deliveries, or (z)
Seller has failed to perform in any respect any of the covenants, agreements and
indemnities contained herein or in any of the aforesaid other documents and
instruments to be performed by him, her or it within the time for performance as
specified herein (including Seller's obligation to close) or therein, then,
provided Buyer has notified Seller in writing of same and Seller has failed to
cure such condition or circumstance or non-performance within 5 days of receipt
of such notice, Buyer's remedies on account of any such breach shall be to:
(i) terminate this Agreement by delivering written notice of
Buyer's election to terminate to Seller and the Earnest Money
Escrowee, in which event the Earnest Money (and all interest
thereon) shall be returned immediately to Buyer and neither
Seller nor Buyer shall have any further liability to the other
except for the Post-Termination Obligations; or
(ii) complete the purchase of the Property and waive any such
Seller defaults; or
(iii) waive any claim for damages and file an action (the
"Specific Performance Action") for specific performance of this
Agreement to compel Seller to close, and Buyer shall be entitled
to reimbursement for all of its costs and expenses, including
reasonable attorneys' fees, incurred in connection with such
Specific Performance Action, if it prevails.
(b) BUYER DEFAULT. In the event that Buyer shall have failed to perform in
any material respect any of the covenants, agreements and indemnities contained
herein to be performed by Buyer within the time for performance as specified
herein (including Buyer's obligation to close), and provided Seller has notified
Buyer in writing of the same and Buyer has failed to cure such condition or
circumstance or non-performance within 5-days of receipt of such notice,
Seller's sole remedy on account thereof shall be to terminate this Agreement by
delivering written notice of its election to so terminate to Buyer, in which
event the Earnest Money (not including any interest earned thereon, which shall
be paid to Buyer) shall be paid to Seller as liquidated damages, it being
understood that Seller's actual damages in the event of such default are
difficult to ascertain and that such proceeds represent the parties' best
current estimate of such damage and thereupon neither party shall have any
further obligation to the other under this Agreement except for the
Post-Termination Obligations.
14. BROKERAGE.
At or prior to Closing, Seller shall pay any and all leasing fees and
commissions due and payable in connection with any Lease. Buyer and Seller each
represent and warrant to the other that they have dealt with no brokers, finders
or intermediaries of any kind in connection with this transaction. Seller does
hereby indemnify and agree to hold Buyer harmless from and against any and all
causes, claims, demands, losses, liabilities, fees, commissions, settlements,
judgments, damages, expenses and fees (including, without limitation, reasonable
attorneys' fees and court costs) in connection with any claim for commissions,
fees, compensation or other charges relating in any way to any Lease and this
transaction, or the consummation thereof, which may be made by any person, firm
or entity as the result of any of Seller's acts or the acts of Seller's
representatives, or as a result of Seller's breach of its representations to
Buyer contained in this Section. Buyer does hereby indemnify and agree to hold
Seller harmless from and against any and all causes, claims, demands, losses,
liabilities, fees, commissions, settlements, judgments, damages, expenses and
fees (including, without limitation, reasonable attorney's fees and court costs)
in connection with any claim for commissions, fees, compensation or other
charges relating in any way
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to this transaction, or the consummation thereof, which may be made by any
person, firm, or entity as the result of any of Buyer's acts or the acts of
Buyer's representatives, or as a result of Buyer's breach of its representations
to Seller contained in this Section. The obligations of Buyer and Seller under
this Section 14 shall survive any termination of or Closing under this
Agreement.
15. BUYER'S CONDITION PRECEDENT AS TO PROPERTY TENANCIES.
(a) It is a condition to Buyer's obligation to close that as of the date of
Closing: (i) relevant portions of the Property be leased to the anchor tenants
described upon the Rent Roll, and that the Property be no less than 95% (based
upon gross leasable area) leased to tenants (other than the anchor tenants)
under leases with all Tenant Conditions (as hereinafter defined) having been
fulfilled, pursuant to the Rent Roll (collectively, the "95% Threshold"), and
(ii) all tenant space shall be in a condition mutually acceptable to Buyer and
Seller (with such determination to be made by not later than the expiration of
the Due Diligence Period), and (iii) all tenant improvement allowances and
leasing commissions for any tenant lease shall have been fully paid and
discharged (or credited to Buyer at Closing), and (iv) there shall not then
exist any material default under any lease either on the part of Seller, as
landlord, or any tenant. Buyer and Seller understand and agree that, upon
Seller's execution of the Master Lease described in the following paragraph, the
95% Threshold shall have been met; provided that a minimum of 80% of the square
feet of Property floor area shall then have the Tenant Conditions met and the
Master Lease shall apply only to the difference between 80% (or such higher
percent then existing) and the 95% Threshold.
(b) MASTER LEASE. For purposes hereof, the term "Project Vacant Space"
shall mean any tenant floor area at the Property that, as of the date of
Closing, is not leased to tenants; and also, any space at the Property (A)
leased to tenants that are not yet open, operating and paying full rent and
reimbursable expenses, and (B) leased to any tenant under a Lease that is more
than 30-days overdue in its payment of rent and reimbursable expenses
(collectively, the "Tenant Conditions"). Provided, however, in the event that
as of the date of Closing, the 95% Threshold has not been met, and any tenant
space at the Property is not leased to tenants under leases with the Tenant
Conditions having been fulfilled, Seller shall deposit with Escrow Agent, as
such term is defined by and pursuant to the Master Lease attached hereto as
Exhibit G, and made a part hereof, from Seller's net proceeds of sale of the
Property, an amount equal to: (i) all unpaid tenant improvement allowances due
under any lease signed as of the date of Closing for which the Tenant Conditions
are not then fulfilled, plus (ii) all unpaid broker commissions or consultant
fees due by reason of any lease signed as of the date of Closing for which the
Tenant Conditions are not then fulfilled, plus (iii) a sum equal to the
abatement of rent and reimbursable expenses under any lease signed as of the
date of Closing for which the Tenant Conditions are not then fulfilled, plus
(iv) for all tenant spaces vacant and not subject to a lease as of the date of
Closing, an amount equal the sum of: (a) $5.00 per square foot of Project Vacant
Space as and for leasing commissions, plus (b) $3.00 per square foot of
Project Vacant Space as and for tenant improvement allowances, plus (c) the
rental rate provided on the Rent Roll for each tenant space that is a part of
Project Vacant Space as of the date of Closing for 12-months, plus (d) $2.50 per
square foot of Project Vacant Space as and for 12-months of reimbursable
expenses, plus an amount per square foot to be mutually agreed upon by Buyer and
Seller prior to the expiration of the Due Diligence Period attributable to
Project Vacant Space not finished to the standards described upon Exhibit O
attached hereto and made a part hereof (collectively, the "Master Lease
Deposit"). From the date of Closing through the date upon which all Tenant
Conditions are satisfied, Escrow Agent shall pay to Buyer from the Master Lease
Deposit, on the first day of each month, the amount of rent and other charges
which would be due on a monthly basis from tenants of the Project Vacant Space
as if the Tenant Conditions were satisfied (prorated for any partial month).
That portion of the Master Lease Deposit attributable to tenant improvement
allowances, and broker or consultant fees and commissions, shall be released to
Seller immediately upon presentment of the required lien waivers and related
documentation required by any Lease or commission agreement. The balance of the
Master Lease Deposit, if any, attributable to any Project Vacant Space remaining
at the time of satisfaction of the Tenant Conditions with regard to any Project
Vacant Space within 12-months of the date of Closing, shall be immediately
released to Seller upon satisfaction of the Tenant Conditions related to the
Project Vacant Space in question. However, upon the first anniversary date of
the date of Closing, all sums then remaining of the Master Lease Deposit escrow
shall be released to Buyer.
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16. SELLER'S OBLIGATIONS REGARDING THE LEASES
(a) Conditions to Buyer's obligation to close with respect to the Property
shall include that there shall not be a material default by either Seller, as
landlord, or any tenant under a Lease, in the performance of the respective
obligations thereunder, and on or prior to ten (10) days before the date of
Closing under this Agreement, Buyer shall have received: (i) an estoppel
certificate, in form and substance reasonably acceptable to Buyer, from each
anchor tenant at the Property (as described upon the Rent Roll) and from tenants
representing no less than 85% of the gross leasable area of the non-anchor
tenants at the Property, an estoppel certificate, substantially in the form of
Exhibit C, attached hereto and by this reference made a part hereof, with
non-material changes thereto, or in another form reasonably acceptable to Buyer
(Publix and Blockbuster and Subway may deliver its typical form of estoppel);
and (ii) a REA estoppel certificate substantially in the form of Exhibit D,
attached hereto and made a part hereof, from each party to any reciprocal
easement agreement (REA) or like-agreement affecting the Property. To the extent
any non-anchor tenant does not deliver an acceptable (to Buyer) estoppel prior
to Closing (after the 100% estoppel threshold has been achieved), Seller shall
deliver to Buyer a Seller estoppel for each such tenant on the form of Exhibit
C. Buyer shall also have the right to contact any tenant or REA party if such
tenant or REA party does not deliver an estoppel certificate or if the estoppel
certificate delivered by such tenant or REA party contains material changes to
the required form. Seller shall use its reasonable efforts to resolve material
changes between the estoppel certificate furnished to each tenant and REA party
and the estoppel certificate received from any tenant and REA party.
(b) Subject to the exception set forth in Section 11(b), above, between
the date of this Agreement and the earlier of the Closing or the termination of
this Agreement, Seller shall not be permitted to amend, modify or terminate any
Lease affecting all or any portion of the Property, or to enter into new leases
of space at the Property, without first obtaining Buyer's prior written
approval.
17. INDEMNITY.
From and for a period of twelve (12) months after the date of Closing of the
purchase and sale of the Property (in regard to the Property) and also twelve
(12) months after the Closing of the purchase and sale, if any, of the Outparcel
(a) Seller agrees to indemnify, protect, defend and hold Buyer, its directors,
officers, employees, partners, lenders and agents harmless from and against all
claims, actions, losses, damages, costs and expenses, including, but not limited
to, reasonable attorney's fees and court costs and liabilities (except those
caused solely by the willful misconduct or negligent acts or omissions of Buyer
or its directors, officers, employees, partners, lenders and agents), arising
out of the ownership and operation of the Property prior to the Closing date,
whether a rising in contract, tort, or related to the actual or alleged injury
to, or death of, any person or loss of or damage to property in or upon the
Property; and (b) Buyer agrees to indemnify, protect, defend and hold Seller,
its directors, officers, partners, employees, lenders and agents harmless from
and against all claims, actions, losses, damages, costs and expenses, including,
but not limited to, reasonable attorney's fees and court costs and liabilities
(except those caused solely by the willful misconduct or negligent acts or
omissions of Seller or its directors, officers, partners, employees, lenders and
agents), arising out of the ownership and operation of the Property by Buyer
from and after the Closing date, whether arising in contract, tort, or related
to the actual or alleged injury to, or death of, any person or loss of or damage
to property in or upon the Property.
18. MISCELLANEOUS
(a) All notices, consents and approvals required by this Agreement shall be
either: (i) personally delivered; or (ii) sent via facsimile transmission; or
(iii) sent by overnight courier for next-business day delivery via Federal
Express, UPS, Purolator or another national reputable courier. Said notices,
consents and approvals shall be deemed received on the date the same are
actually received or delivery thereof is refused. Said notices, consents and
approvals shall be sent to the parties hereto at the following addresses, unless
otherwise notified in writing:
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TO SELLER: Paradise Shoppes of Dallas, Ltd.
c/o Paradise Development Group, Inc.
2901 Rigsby Lane
Safety Harbor, Florida
Attn: Mr. Michael T. Wagner
Facsimile: 727/726-2337
Phone: 727/726-1115
Copies to: Paradise Development Group, Inc.
100 Glenridge Point Parkway, Ste. 475
Atlanta, Georgia 30342
Attn: Mr. Robert L. Hoffman
Facsimile: 404/459-8141
Phone: 404/459-8740
and
Forlizzo Law Group, P.A.
2903 Rigsby Lane
Safety Harbor, Florida 34695
Attn: Robert A. Forlizzo, Esquire
Facsimile: 727/669-6929
Phone: 727/669-0550
TO BUYER: Inland Real Estate Acquisitions, Inc.
2901 Butterfield Road
Oak Brook, IL 60523
Attn: Steven Sanders
Facsimile: 941-779-2000 and 630-218-4935
Phone: 941-779-1000
Copy to: The Inland Group, Inc.
2901 Butterfield Road
Oak Brook, IL 60523
Attn: Robert Baum, General Counsel
Facsimile: 630-218-4900 and 630-571-2360
Phone: 630-571-2331
(b) WAIVER OF JURY TRIAL.
Each of Seller and Buyer hereby expressly waives any right to trial by jury
of any claim, demand, action or cause of action (i) arising under this Agreement
or any other instrument executed or delivered in connection herewith or (ii) in
any way connected with or related or incidental to its dealings with respect to
this Agreement or any other instrument executed or delivered in connection
herewith, or the transactions related hereto or thereto, in each case whether
now existing or hereafter arising, and whether sounding in contract or tort or
otherwise; and each of Seller and Buyer hereby agrees and consents that any such
claim, demand, action or cause of action shall be decided by court trial without
a jury.
(c) ENTIRE AGREEMENT AND AMENDMENTS.
This Agreement, together with any Exhibits referred to herein, constitute
the entire understanding between
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the parties hereto and supersedes any and all prior arrangements or
understandings between the parties. This Agreement can be amended only by a
writing signed by Buyer and Seller.
(d) EXHIBITS.
All exhibits attached hereto are hereby incorporated by reference and made
a part hereof.
Said exhibits include the following:
(i) Exhibit "A" - Legal Description
(ii) Exhibit "B" - Assignment of Leases
(iii) Exhibit "C" - Tenant Estoppel Certificate - General
(iv) Exhibit "D" - REA Estoppel Certificate
(v) Exhibit "E" - Rent Roll
(vi) Exhibit "F" - Inland Property Management Due Diligence
Checklist
(vi) Exhibit "G" - Master Lease/Escrow Agreement
(vii) Exhibit "H" - INTENTIONALLY DELETED
(viii) Exhibit "I" - Tenant Letter
(ix) Exhibit "J" - INTENTIONALLY DELETED
(x) Exhibit "K" - Audit Representation Letter
(xi) Exhibit "L" - Leasing Parameters
(xii) Exhibit "M" - Site Plan (Shopping Center, showing the
Outparcel)
(xiii) Exhibit "N" - Outparcel Prohibited and Exclusive Uses
(xiv) Exhibit "O" - Vanilla Box Finish Standards
(e) INSURANCE; DESTRUCTION OF IMPROVEMENTS.
Between the date of this Agreement and the earlier of the Closing date or
the termination of this Agreement, Seller agrees to maintain with respect to the
Property casualty insurance with replacement cost and agreed amount coverage.
If prior to Closing all or any part of the Property is destroyed or damaged
or is taken by condemnation, eminent domain or other governmental acquisition
provisions, then the following procedures shall apply:
(i) If the cost of repair or replacement or the value of the
governmental taking is Two Hundred Fifty Thousand Dollars
($250,000.00) or less in the reasonable opinion of Buyer's and
Seller's respective engineering consultants, and the Leases of
the Property are not terminable on account thereof (assuming
any necessary repairs, replacements or alterations required
under the Leases are diligently pursued by the landlord
thereunder) or, if any Leases is so terminable, the tenant
under such Leases has waived its termination rights and no
abatement of rent occurs as a result of the damage, destruction
or condemnation, Buyer shall close and take the Property as
diminished by such events with no reduction in the Purchase
Price, and Seller shall assign the right to all casualty
insurance and condemnation proceeds due with respect to such
destruction, damage or taking to Buyer, as well as, to the
extent the same are assignable, the proceeds and benefits under
any rent loss or business interruption policies attributable to
the period following the Closing and deductibles.
(ii) If the cost of repair or replacement or the value of the
governmental taking is greater than Two Hundred Fifty Thousand
Dollars ($250,000.00) in the reasonable opinion of Buyer's and
Seller's respective engineering consultants, or the Leases are
terminable on account thereof (assuming any
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necessary repairs, replacements or alterations required under
the Leases are diligently pursued by the landlord thereunder)
and the tenant under such Lease has not waived its termination
rights, or if an abatement of rent occurs as a result of the
damage, destruction or condemnation, then Buyer, at its sole
option, may elect either to (x) terminate this Agreement by
written notice to Seller and receive an immediate return of the
Earnest Money (and all interest thereon) and neither party
shall have any further liability to the other hereunder except
for the Post-Termination Obligations; or (y) accept an
assignment of Seller's rights to all casualty insurance and
condemnation proceeds with respect thereto with no reduction in
the Purchase Price, it being understood and agreed that, in
such event, Seller shall cooperate with Buyer in the adjustment
and settlement of the insurance or condemnation claim. The
proceeds and benefits under any rent loss or business
interruption policies attributable to the period following the
Closing and deductibles shall likewise, to the extent the same
are assignable, be transferred and paid over to Buyer.
(iii) In the event of a dispute between Seller and Buyer with respect
to the cost of repair, restoration or replacement with respect
to the matters set forth in this subsection 18(e), an engineer
designated by Seller and an engineer designated by Buyer shall
select an independent engineer licensed to practice in the
jurisdiction where such Property is located who shall resolve
such dispute. All fees, costs and expenses of the engineer so
selected shall be shared equally by Buyer and Seller.
(f) TIME OF THE ESSENCE.
Time is of the essence in connection with all dates or periods of time
referred to herein.
(g) CHOICE OF LAW.
This Agreement is to be governed by, and construed in accordance with, the
laws of the State of Georgia.
(h) SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the provisions and covenants contained
herein shall inure to and be binding upon the heirs, successors and assigns of
the parties hereto. However, Buyer shall have no right to assign any of its
rights, privileges, duties or obligations under this Agreement prior to Closing,
without the prior written consent of Seller in its sole discretion.
Notwithstanding the foregoing, Buyer shall be permitted, without Seller's
consent, to assign its rights, privileges, duties and obligations under this
Agreement to an entity which is an affiliate of The Inland Group, Inc. Promptly
following, and as a condition to, any assignment by Buyer permitted under this
subsection 18(b), Buyer shall deliver to Seller an assumption by the assignee of
all of Buyer's duties and obligations under this Agreement. In the event Seller
assigns its rights and obligations under this Agreement, the liability of Seller
shall in no way be affected and the liability of the Seller for the
representations, warranties and covenants made by the Seller herein shall
continue as though no such assignment had been made.
(i) SECTION HEADINGS.
The headings of the Sections of this Agreement are inserted solely for
convenience of reference, and are not intended to govern, limit or aid in the
construction of any term or provision hereof.
(j) WAIVER.
No claim of waiver, consent or acquiescence with respect to any provision
of this Agreement shall be made against either party except on the basis of a
written instrument executed by or on behalf of such party. The party for whose
benefit a condition is herein inserted shall have the unilateral right to waive
such condition.
(k) FURTHER ACTIONS.
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Each of Buyer and Seller agrees to execute such further documents, and take
such further actions, as may reasonably be required to carry out the provisions
of this Agreement, or any agreement or document relating hereto or entered into
in connection herewith. In addition, each of Buyer and Seller agrees to use
reasonable efforts (not including, without limitation, the prosecution of any
litigation or other actions outside of the ordinary course of business) to cause
any conditions to its obligation to close to be satisfied.
(l) NEUTRAL CONSTRUCTION.
Each of the parties hereto has been involved in the negotiation, review,
and execution of this Agreement and each has had the opportunity to receive
independent legal advice from attorneys of its choice with respect to the
advisability of making and executing this Agreement. In the event of any dispute
or controversy regarding this Agreement, the parties hereto shall be considered
to be the joint authors of this Agreement and no provision of this Agreement
shall be interpreted against a party hereto because of authorship.
(m) TAX FREE EXCHANGE.
Each party hereby agrees to take reasonable 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 Internal Revenue Code (the "Code").
Provided, however, that in no event shall the non-requesting party be required
to sign any document, nor take title to any other real property, nor to incur
any additional expenses or liability in order to effectuate the like-kind
exchange. In addition, the Closing shall not be delayed by the requesting party.
Seller or Buyer, as the case may be, 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 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 of 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.
(n) BUSINESS DAY.
As used herein, the term "Business Day" means any day other than Saturday,
Sunday and any day which is a legal holiday in the State of Georgia.
(o) TIME PERIODS. In the event the time for performance of any obligation
hereunder expires on a day that is not a Business Day, the time for performance
shall be extended to the next Business Day.
(p) ATTORNEY'S FEES. In the event of any dispute hereunder or of any action
to interpret or enforce this Agreement, any provision hereof or any matter
arising therefrom, the prevailing party shall be entitled to recover its
reasonable costs, fees and expenses, including, but not limited to, witness
fees, expert fees, consultant fees, attorney, paralegal and legal assistant
fees, costs and expenses and other professional fees, costs and expenses whether
suit be brought or not, and whether in settlement, in any declaratory action, at
trial or on appeal. For purposes of this paragraph, the term "prevailing party"
shall mean, in the case of the claimant, one who is successful in obtaining
substantially all relief sought, and in the case of the defendant or respondent,
one who is successful in denying substantially all of the relief sought by the
claimant.
(q) TIME LIMIT ON EXECUTION. In the event Buyer has not signed and returned
to Seller a copy of this Agreement signed by Buyer by 5:00 p.m. on ____________,
2004, or sooner, this Agreement shall be deemed null and void with neither party
having any further obligation to the other.
{r) NO RECORDATION. Neither this Agreement nor a record or a memorandum
thereof shall be recorded in the Public Records of any county in the State of
Georgia by either party hereto.
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(s) "OUTPARCELS 1-6," "PARCEL 2" AND "PARCEL 2A," NOT INCLUDED. Buyer and
Seller understand and agree that the real property known as "Outparcels 1-6,"
"Parcel 2" and "Parcel 2A," is specifically not included in the definition of
"Property" herein.
(t) DISPOSITION OF "OUTPARCELS 2, 3, 4, and 5," by Seller. Seller is the
owner of "Outparcels 2, 3, 4, and 5" (as depicted on the sketch of the Shopping
Center attached hereto and made a part hereof as Exhibit "M") (individually, an
"Outparcel," and collectively, the "Outparcels") and intends to either sell,
ground lease, or develop the Outparcels following the Closing of the transaction
contemplated by this Agreement. Following Closing, Buyer and Seller anticipate
that one of the following three (3) scenarios will occur with respect to the
Outparcels:
(i) Seller may elect to sell an Outparcel to a bona fide third
party purchaser in an arms length transaction. In the event of such
a sale of an Outparcel, the Buyer, as the then owner of the
Property, hereby agrees that it shall grant to the purchaser of such
Outparcel such easements (including, but not necessarily limited to,
those for the installation and maintenance of utilities, drainage
and ingress/egress) as may be reasonably required for the intended
commercial development of the Outparcel (provided, however, such
easements shall not include an easement for parking). The
construction of such Outparcel improvements and the
commercial/retail use of such Outparcel shall be: (a) in compliance
with all Legal Requirements (as hereinafter defined); and (b) all
recorded documents including, but not limited to, the Declaration of
Easements and Restrictive Covenants encumbering the Property; and
(c) in accordance with plans and specifications for the Outparcel
improvements which have been previously reasonably approved by Buyer
in regard to architectural compatibility with the improvements then
constructed upon the Properly; and (d) subject to the prohibited and
exclusive uses described upon Exhibit N, attached hereto and made a
part hereof (the "P/E Uses"). The foregoing items (a)-(d) shall be
collectively referred to as the "Development Standards."
(ii) Alternatively, the Seller or subsequent purchaser may
elect to construct improvements on an Outparcel and ground lease it
to a commercial/retail tenant. In such event, Buyer, as the then
owner of the Shopping Center, hereby agrees that it shall grant in
favor of such Outparcel such easements (including, but not
necessarily limited to, those for the installation and maintenance
of utilities, drainage and ingress/egress) as may be reasonably
required for the commercial operation of the Outparcel (provided
however, such easements shall not include an easement for parking).
The construction of such Outparcel improvements and the
commercial/retail use of such Outparcel shall be in compliance with
the Development Standards. In the event Seller elects to ground
lease an Outparcel to a commercial/retail tenant, Seller shall have
the right and option to "put" such Outparcel (subject to such ground
lease) to Buyer and Buyer shall acquire such Outparcel from Seller
at a purchase price equivalent to the NOI (as hereinafter defined)
to be derived from such ground lease capitalized at the Initial Cap
Rate (as hereinafter defined) (provided that such closing must occur
within one (1) year of the closing of the transaction contemplated
by this Agreement for the provisions of this paragraph to be
operative); or
(iii) Alternatively, Seller may elect to develop an Outparcel as
additional retail space to be integrated with the existing Shopping
Center; provided, however, Seller's right to so develop an Outparcel
shall be conditioned upon first receiving approval (which approval
shall not be unreasonably withheld, conditioned or delayed) from the
Buyer regarding the proposed tenants and proposed retail uses of
such Outparcel and the proposed tenant leases. The construction of
the Outparcel improvements and the commercial/retail use of such
Outparcel shall be in compliance with the Development Standards. In
the event Buyer approves such proposed tenants and use and
authorizes Seller to proceed with construction then, upon
satisfaction of the Occupancy Conditions (as defined below) Buyer
hereby agrees to acquire
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from Seller the improved Outparcel at a purchase price equivalent to
the NOI (as hereinafter defined) to be derived from the newly
developed retail space situate on the Outparcel capitalized a rate
of 7.1% (the "Initial Cap Rate") (provided such closing occurs
within one (1) year of the closing of the transaction contemplated
by this Agreement). In the event that the additional retail space is
developed after said one (1) year post-closing period, Buyer hereby
agrees to purchase the newly developed retail space at a purchase
price to be calculated utilizing the "Adjusted Cap Rate" determined
in accordance with the terms of the immediately following paragraph.
The Initial Cap Rate is calculated based upon a benchmark cost of
funds equal to the yield on the 10-year Treasury bill issued in
May, 2004 (the "10-year T-Bill") or, if the 10-year T-Bill has not
issued in the month of May, 2004, then the yield on the 10-year
T-Bill issued in the closest month following the month of May, 2004
(the "Benchmark Yield"). The Initial Cap Rate is subject to an
adjustment determined by: (i) calculating any decrease or increase
in the Benchmark Yield as of May, 2004 and again as of the date of
Closing (if the 10-year T-Bill is not issued in the month of
Closing, then the yield on the 10-year T-Bill issued in the closest
month prior to Closing) (the "Benchmark Yield Increase or
Decrease"); and (ii) adding (or subtracting, as applicable) the
Benchmark Yield Increase or Decrease, expressed as a percentage, to
the Initial Cap Rate (the "Adjusted Cap Rate"). Notwithstanding the
foregoing, the Adjusted Cap Rate shall never be less than 6.60% nor
greater than 7.60%.
(iv) Definitions:
a. Occupancy Conditions: shall mean that the tenant under
the Outparcel lease has (i) occupied its demised
premises, and (ii) opened for business to the public,
and (iii) commenced the payment of full rent and
reimbursable expenses under such Outparcel lease, and
(iv) a certificate of occupancy has issued as to such
Outparcel tenant space, and (v) such Outparcel tenant
shall have delivered to Buyer an acceptable (to Buyer)
Tenant estoppel certificate in form and substance as
required under the Agreement.
b. Tenancy Conditions: shall mean that as of the date of an
Outparcel closing: (i) the Outparcel shall be no less
than 95% (based upon gross leasable area) leased to
tenants under leases with all Occupancy Conditions
having been fulfilled (collectively, the "95%
Threshold"), and (ii) all tenant space shall be in a
condition mutually acceptable to Buyer and Seller, and
(iii) all tenant improvement allowances and leasing
commissions for any tenant lease shall have been fully
paid and discharged (or credited to Buyer at the
Outparcel closing), and (iv) there shall not then exist
any material default under any lease either on the part
of Seller, as landlord, or any tenant. Buyer and Seller
understand and agree that, upon Seller's execution of
the Master Lease described in the following paragraph,
the 95% Threshold shall have been met. Notwithstanding
the foregoing, in the event that a minimum of 50% of the
square feet of Outparcel floor area shall then have the
Occupancy Conditions met (the "50% Minimum"), the Master
Lease shall apply only to the difference between 50%
Minimum (or such higher percent then existing) and the
95% Threshold.
c. MASTER LEASE. For purposes hereof, the term "Outparcel
Vacant Space" shall mean any tenant floor area upon an
Outparcel that, as of the date of the Outparcel closing,
is not leased to tenants satisfying the Occupancy
Conditions. Provided, however, in the event that as of
the date of the Outparcel closing, the 50% Minimum has
been met, and the 95% Threshold has not been met, and
any tenant space upon an Outparcel is not leased to
tenants under leases with the Occupancy Conditions
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having been fulfilled, Seller shall deposit with Escrow
Agent, from Seller's net proceeds of sale of the
Outparcel, an amount equal to: (i) all unpaid tenant
improvement allowances due under any lease signed as of
the date of the Outparcel closing for which the
Occupancy Conditions are not then fulfilled, plus (ii)
all unpaid broker commissions or consultant fees due by
reason of any lease signed as of the date of the
Outparcel closing for which the Occupancy Conditions are
not then fulfilled, plus (iii) a sum equal to the
abatement of rent and reimbursable expenses under any
lease signed as of the date of the Outparcel closing for
which the Occupancy Conditions are not then fulfilled,
plus (iv) for all of the Outparcel Vacant Space not
subject to a lease as of the date of the Outparcel
closing, an amount equal the sum of: (a) $5.00 per
square foot of the Outparcel Vacant Space as and for
leasing commissions, plus (b) $3.00 per square foot of
the Outparcel Vacant Space as and for tenant improvement
allowances, plus (c) the monthly rental rate ("Rent") to
be provided on the Rent Roll for each tenant space that
is a part of the Outparcel Vacant Space as of the date
of the Outparcel closing for 12-months, plus (d) 20.833
cents per square foot per month of the Outparcel Vacant
Space multiplied by 12-months for reimbursable expenses
("Reimbursable Expenses"), plus an amount per square
foot to be mutually agreed upon by Buyer and Seller
prior to the Outparcel closing attributable to the
Outparcel Vacant Space not finished to the standards
described upon Exhibit O attached hereto and made a part
hereof (collectively, the "Outparcel Master Lease
Deposit"). From the date of the Outparcel closing
through the date upon which all Occupancy Conditions are
satisfied for the Outparcel Vacant Space, Escrow Agent
shall pay to Buyer from the Outparcel Master Lease
Deposit, on the first day of each month, the amount of
Rent and Reimbursable Expenses which would be due on a
monthly basis from tenants of the Outparcel Vacant Space
as if the Occupancy Conditions were satisfied (prorated
for any partial month). That portion of the Outparcel
Master Lease Deposit attributable to tenant improvement
allowances, and broker or consultant fees and
commissions, shall be released to Seller immediately
upon presentment of the required lien waivers and
related documentation required by any Outparcel lease or
commission agreement. The balance of the Outparcel
Master Lease Deposit, if any, attributable to any
Outparcel Vacant Space remaining at the time of
satisfaction of the Occupancy Conditions with regard to
any Outparcel Vacant Space within 12-months of the date
of the applicable Outparcel closing, shall be
immediately released to Seller. However, upon the first
anniversary date of the date of the applicable Outparcel
closing, all sums then remaining of the applicable
Outparcel Master Lease Deposit escrow shall be released
to Buyer.
NOI: shall mean, (i) the sum of all annual rent and
reimbursable expenses payable under Outparcel leases for
which the Occupancy Conditions have been satisfied at
the time of any such calculation, minus (ii) the sum of
the following: (w) a vacancy factor equal to 5% of the
Annual Rent from non-credit tenants; (x) reserves of
$.10 per square foot of retail space; (y) a management
fee equal to 4.5 % of the effective gross income; and
(z) annual operating expenses for the Outparcel covering
the one-year period commencing on the date the Occupancy
Conditions are satisfied (which budget shall be prepared
by Seller and approved by Buyer; it being understood
that such annual operating expenses are estimated at the
sum of $2.50 per square foot of improvements constructed
upon the Outparcel).
d. Legal Requirements: shall mean all laws, statutes,
codes, acts, ordinances, judgments, decrees,
injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all
governments and governmental
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authorities having jurisdiction over the Outparcel and
the operation of the improvements thereon.
The provisions of this Section 18(t) shall survive Closing.
(PLEASE SEE FOLLOWING PAGE FOR SIGNATURES)
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IN WITNESS WHEREOF, the Buyer has executed this document as of the day and
year first hereinabove written.
BUYER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Steven D. Sanders
------------------------------
Steven D. Sanders
Senior Vice President
SELLER: PARADISE SHOPPES OF DALLAS, LTD.,
a Florida limited partnership
By: Paradise Development Group, Inc.,
a Florida corporation, its General Partner
By: /s/ Michael T. Wagner
------------------------------
Michael T. Wagner
Vice President
Date of Acceptance by Seller: June 4, 2004
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EXHIBIT A
Legal Description
Property Address:
P.I.N.:
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EXHIBIT B
ASSIGNMENT OF LEASES
For and in consideration of Ten Dollars ($10.00) in hand paid, and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, _________________________________________________("Seller")
and ___________________________________________ as leasing agent for said Seller
(collectively, "Assignor"), hereby assign to Inland _________________
("Assignee") as managing agent for Inland Southeast ___________, and its
successors or assigns, all of Assignor's right, title and interest in, to and
under that certain lease described on Exhibit B attached hereto and made a part
hereof, which lease relates to that certain real Property legally described on
Exhibit A attached hereto and made a part hereof. Assignor shall remain
responsible and liable for all liabilities and expenses and landlord obligations
relating to the lease which occurred and accrued prior to the date of this
Assignment.
IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment of
Leases as of the ____ day of ______________, 2004.
ASSIGNOR:
--------------------------------
Seller
--------------------------------
By:
-----------------------------
managing agent
<Page>
ACCEPTANCE AND ASSUMPTION
The undersigned, Inland Southern Property Management Corp., as managing
agent for Inland _______________, and its successors or assigns, and the
Assignee under the foregoing Assignment of Leases, hereby accepts such
assignment and assumes all obligations of the landlord under the leases
referenced therein arising on or after the date of this Acceptance and
Assumption.
The undersigned represents and warrants to the Assignor under the foregoing
Assignment of Leases that it is authorized to execute this Acceptance and
Assumption as managing agent for Inland Southeast _______________, and its
successors or assigns, and that this Acceptance and Assumption shall be binding
upon, and shall constitute the enforceable obligation of Inland Southeast
_____________________, and its successors or assigns.
IN WITNESS WHEREOF, the undersigned Assignee has executed and delivered this
Acceptance and Assumption as of the ______ day of ___________, 2004.
Inland Southern Property Management Corp., as
managing agent for Inland _________________,
and its successors or assigns
BY:
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
<Page>
EXHIBIT C
Tenant Estoppel Certificate Form - General
To:
Inland Real Estate Acquisitions, Inc., and
Inland _________, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Buyer")
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 _________________________________________ (the "Premises") of the
property commonly known as _______________________________________________
(the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter ____________________________
agreements, modifications and ____________________________
waivers related to the Lease
b. Commencement Date _______________
c. Expiration Date _______________
d. Current Annual Base Rent _______________
ADJUSTMENT DATE RENTAL AMOUNT
e. Fixed or CPI Rent Increases _____________ ______________
_____________ ______________
f. Square Footage of Premises ___________________
g. Security Deposit Paid to Landlord ________________
h. Renewal Options _____ Additional Terms for _____
years at $___________ per year
i. Termination Options Termination Date ______________
Fees Payable __________
2. Tenant further certifies to Buyer that:
a. the Lease is presently in full force and effect and represents the
entire agreement between Tenant and Landlord with respect to the
Premises;
b. the Lease has not been assigned and the Premises have not been sublet by
Tenant;
c. Tenant has accepted and is occupying the Premises, all construction
required by the Lease has been completed and any payments, credits or
abatements required to be given by Landlord to Tenant have been given;
<Page>
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. the Lease does not give the Tenant any operating exclusives for the
Property; and
n. Rent has been paid through _______, 2004.
3. This certification is made with the knowledge that Buyer 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
Buyer'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 Buyer (including its lender), their respective successors
and assigns shall have the right to rely on the information contained in
this Certificate. The undersigned is authorized to execute this Tenant
Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
--------------------------
Its:
-------------------------
Date: , 2004
-------------
<Page>
GUARANTOR ESTOPPEL CERTIFICATE
Date: _____________, 2004
To: ________
Inland Real Estate Acquisitions, Inc., and
Inland ________, L.L.C. (insert Inland nominee entity),
and its lenders, successors and assigns ("Buyer")
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Robert Brinkman
Re: Guaranty Agreement dated ___________ ("Guaranty of Lease") pertaining
to that certain lease dated ______________________________________________
between _______________________________________________________________ as
Landlord and ______________________ as Tenant for leased premises known as
____________________________ (the "Premises") located at the property
commonly known as ____________________________ (the "Property").
1. Guarantor certifies to Lender and Buyer 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, liens, claims
or credits against the obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Buyer 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 Buyer 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:
-------------------
Its:
-------------------
<Page>
EXHIBIT D
REA ESTOPPEL CERTIFICATE
REA ESTOPPEL STATEMENT
The undersigned _____________________, a ___________ corporation
("_________"), is a party to the ______________ (REA) recorded
on ________________ ____, ____ in Book _______, Page _____ of the Public Records
of _____ County, ______ (the "REA"), between and among ________________,
_______________________, a _____________ ("Declarant"), and ____________________
______________, a ____________ (corporation) ("______"), with respect to
the ________________________, Shopping Center in _______________, _____ (the
"Shopping Center"). _________ has been advised that Declarant is in process of
selling Declarant's interest in the Shopping Center to INLAND (entity) having a
notice address of 2901 Butterfield Road, Oak Brook, Illinois 60523, Attention:
Vice Chairman (together with its lender, and their successors and assigns,
collectively referred to herein as "Buyer"). ________ hereby states to Buyer as
follows:
1. The REA has not been amended and is in full force and effect.
2. The REA is presently in full force and effect according to its
terms.
3. ____________ has neither given nor received any notice of default with
respect to the REA. To the best of ________'s knowledge (whereby knowledge shall
be limited to the party signing this REA Estoppel Agreement on behalf of
__________), neither ________nor any other party is in default under the REA.
4. As provided under Section _____ of the ____________ REA, ____________
acknowledges and agrees that, upon its acquisition of Declarant's interest in
the Shopping Center, Buyer shall be entitled to all of the benefits, rights,
privileges and burdens of the Declarant under the REA.
5. The gross leasable area of the ________ store is ___________________.
6. ____________'s last contribution for common area maintenance costs
and expenses was for the month of _________, 2004 in the amount of $_________.
This Statement does not (a) constitute a waiver of any rights _____ may
have under the REA, or (b) modify, alter, or change any of the terms or
conditions of the REA. No officer or employee signing this Statement on behalf
of __________ shall have any personal liability as a result of having given this
statement. _________ shall be estopped from asserting any claim or defense
against Buyer to the extent such claim or assertion is based upon facts, now
known to _________ , which are contrary to those contained herein, if Buyer has
acted in reasonable reliance upon such statements without knowledge of facts to
the contrary. This Statement is given solely for Buyer's information and may not
be relied upon by anyone other than Buyer, or in connection with any transaction
other than the transaction described above. Capitalized terms used in this
Statement, unless otherwise defined, will have the meanings ascribed to such
terms in the REA.
--------------------------------
a (corporation)
-----------
By:
-----------------------------
Its:
--------------------------
<Page>
NOTE: Buyer and Seller agree that the parties required to execute this Exhibit D
shall be limited to those parties (excluding local shop space in-line tenants)
who have economic obligations under the REA.
<Page>
EXHIBIT E
RENT ROLL
<Page>
EXHIBIT F
INLAND PROPERTY MANAGEMENT
DUE DILIGENCE CHECKLIST
Please see separate attachment.
<Page>
EXHIBIT G
THE "MASTER LEASE"
To be attached
<Page>
EXHIBIT H
INTENTIONALLY DELETED
<Page>
EXHIBIT I
TENANT LETTER
Please see separate attachment
<Page>
EXHIBIT J
INTENTIONALLY DELETED
<Page>
EXHIBIT K
AUDIT REPRESENTATION LETTER
____________, 2004
KPMG LLP
Peat Marwick Plaza
303 E Wacker
Chicago, Illinois 60601
Ladies and Gentlemen:
We are writing you at your request to confirm our understanding that your audit
of the Historical Summary of Gross Income and Direct Operating Expenses
(Historical Summary) of _________________ (the Property) for the twelve months
ended December 31, 2003 was made for the purpose of expressing an opinion as to
whether the Historical Summary presents fairly, in all material respects, the
gross income and direct operating expenses in conformity with the accrual basis
of accounting. In connection with your audit we confirm, to the best of our
knowledge and belief, the following representations made to you during your
audit:
We have made available to you:
All financial records and related data.
All minutes of the meetings of stockholders, directors, and committees
of directors, or summaries of actions of recent meetings for which
minutes have not yet been prepared.
There have been no:
Instances of fraud involving any member of management or employees who
have significant roles in internal control.
Instances of fraud involving others that could have a material effect
on the Historical Summary.
Other instances of fraud perpetrated on or within the Property.
Communications from regulatory agencies concerning noncompliance with,
or deficiencies in, financial reporting practices that could have
a material effect on the Historical Summary.
Violations or possible violations of laws or regulations, the effects
of which should be considered for disclosure in the Historical
Summary or as a basis for recording a loss contingency.
<Page>
KPMG LLP
Page 2
There are no:
Unassorted claims or assessments that our lawyer(s) has (have) advised
us are probable of assertion and must be disclosed in accordance
with Statement of Financial Accounting Standards (SFAS) No. 5,
Accounting for Contingencies.
Material liabilities or gain or loss contingencies that are required to
be accrued or disclosed by SFAS No. 5.
Material transactions that have not been properly recorded in the
accounting records underlying the Historical Summary.
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.
The Property has complied with all aspects of contractual agreements that
would have a material effect on the Historical Summary in the event of
noncompliance.
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 twelve
months ended December 31, 2003, in conformity with generally accepted accounting
principles.
Sincerely,
- ----------------
<Page>
-EXHIBIT L-
LEASING PARAMETERS
1. The proposed use shall be a use typically found in retail centers of this
type.
2. The proposed use does not violate any exclusions or restrictions existing
in any other tenant's lease or covenants existing in any other documents
of record.
3. The lease is for an original term of not less than 3 years, nor more than
10 years.
4. No concessions shall be provided to the tenant which would be at Buyer's
expense.
5. All leases shall be prepared substantially in accordance with the small
shop tenant lease form approved by Buyer during the Due Diligence Period
subject to commercially reasonable variances and prevailing market
parameters.
6. The proposed tenant has successful retail and/or business operating
experience including, but not limited to, three years in the type of
business to be operated at the leased premises. In the absence of three
years experience, the prospective tenant must be an approved franchisee or
a recognized franchisor.
7. The proposed tenant (or the franchisor, if applicable) shall have more than
one location or shall be relocating to the Property an existing business.
8. The proposed tenant and/or lease guarantor has an aggregate net worth of at
least two years of the total aggregate annualized rent, including all
expenses, for any tenant of the leased premises up to 7,000 square feet.
9. Said leases shall average at least 3% increases per year over the primary
term of the lease.
10. The tenant's lease will not include rent reductions, co-tenancy, or early
termination clauses of any kind.
11. In addition to tenant's base rent, the leases will include 100%
reimbursement for taxes, insurance and common area maintenance, including a
15% administrative charge for CAM (or, in the alternative, providing for a
4-1/2% management fee).
12. Buyer shall act in a commercially reasonable manner and in good faith
during its review and determination of the credit worthiness of any tenant
and/or guarantor as well as the economic viability of a proposed lease.
Also, Buyer agrees to respond to Seller deliveries of tenant/guarantor
credit information and proposed lease economics within 5 business days
after its receipt by Buyer, otherwise said tenant/guarantor credit
worthiness and proposed) ease economics shall be deemed approved by Buyer.
13. Any lease renewals will be for a term of not less than the primary term and
at rental rates at least equal to the rental rate for the primary term,
with 3% per year increases thereafter, and with no tenant improvements,
free rent, or leasing commissions to be paid by Buyer.
<Page>
EXHIBIT M
Site Plan (sketch)
<Page>
EXHIBIT N
Outparcel Prohibited and Exclusive Uses
<Page>
Exhibit O
Vanilla Box Finish Standards