EX-10.105 AGREEMENT OF CONTRIBUTION

 

TABLE OF CONTENTS

 

		Page No.
ARTICLE 1 - Contribution
1.1	Covenant to Contribute	1
1.2	Contribution; Escrow Agent	2
ARTICLE 2 - Title and Condition of Property; Financing
2.1	State of Title	6
2.2	Investigations; No Reliance on Documents; As-Is Sale	7
2.3	Due Diligence Period	11
2.4	Inland’s Right to Terminate	11
2.5	Prepayment of Existing Loans; Assumption of Existing F Property Loan	12
ARTICLE 3 - The Closing
3.1	Time and Place	12
3.2	Closing	12
3.3	Delivery of Possession	15
ARTICLE 4 - Apportionments and Allocation of Expenses
4.1	Credits and Prorations	15
4.2	Other Adjustments	15
4.3	Transaction and Closing Costs	16
ARTICLE 5 - Representations and Warranties
5.1	Ceruzzi’s Representations and Warranties	17
5.2	Inland’s Representations and Warranties	19
5.3	Changed Circumstances	19
5.4	Survival of Representations and Warranties	20
ARTICLE 6 - Additional Agreements
6.1	Operations Pending Closing	20
6.2	Mutual Cooperation	21
ARTICLE 7 - Risk of Loss
7.1	Casualty	21
7.2	Condemnation	22

 

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ARTICLE 8 - Remedies Upon Default
8.1	Time of Essence	23
8.2	Default by Inland	23
8.3	Default by Ceruzzi	23
ARTICLE 9 - Agents and Commission
9.1	Brokers	23
ARTICLE 10 - Miscellaneous
10.1	Notices	24
10.2	No Recording	25
10.3	No Agency	25
10.4	Severability	25
10.5	Assignment and Succession	25
10.6	Amendments and Waivers	25
10.7	Further Assurances	26
10.8	Absence of Third-Party Beneficiaries	26
10.9	Governing Law; Jurisdiction	26
10.10	Interpretation	26
10.11	Entire Agreement	27
10.12	Counterparts	27
10.13	Expenses	27
10.14	Consents	27
10.15	Headings	27
10.16	Waiver of Trial by Jury	27
10.17	Confidentiality	27
10.18	Drafts not an Offer to Enter into a Legally Binding Contract	28
10.19	Exculpation	28
10.20	Joint and Several	29

 

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AGREEMENT OF CONTRIBUTION

 

THIS AGREEMENT OF CONTRIBUTION (hereinafter referred to as the “Agreement”), dated as of this 24th day of February, 2006, between CE Cumberland 2001 LLC, and Malden CE 2001 LLC, and Swampscott CE 2001 LLC, and CE Southington 2001 LLC, and Framingham CE 2001 LLC, and CE Bristol 2001 LLC, and CE Sicklerville 2001 LLC, and CE Greenville 2001 LLC, each a Delaware limited liability company, having an address at c/o Ceruzzi Holdings, LLC, 1720 Post Road, Fairfield, CT 06824 (hereinafter collectively referred to as “Ceruzzi”), and Inland Real Estate Acquisitions, Inc., an Illinois corporation having an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter referred to as “Inland”).

 

W I T N E S S E T H:

 

WHEREAS, Ceruzzi is the owner of those certain parcels of real property legally described upon group Exhibit “A” attached hereto and made a part hereof (hereinafter collectively referred to as the “Real Property”).

 

WHEREAS, Ceruzzi desires to sell to Inland and Inland desires to purchase from Ceruzzi the Property subject to the terms and conditions hereinafter provided; and

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties intending to be legally bound, hereby agree as follows:

 

ARTICLE 1

Contribution

 

1.1          Covenant to Contribute. Prior to Closing, Inland shall form and organize the Grantees (as hereinafter defined), the JV’s (as hereinafter defined) and the Member II Entities (as hereinafter defined). Ceruzzi, through the collective formation of the limited liability companies described upon Exhibit “L” attached hereto and made a part hereof, (collectively, the “JV’s”), by Ceruzzi and the entities to be formed by Inland as described upon Exhibit “N,” attached hereto and made a part hereof (the “Member II Entities”), shall contribute to the respective JV’s and convey to Inland, and Inland shall accept from Ceruzzi, the following (collectively, the “Property” and respectively the “Property” as the context requires):

 

(a)           the Real Property owned by Ceruzzi, together with all of the tenements, hereditaments and appurtenances appertaining thereto, including any estate, right, title, interest, property, claim and demand of Ceruzzi in and to all streets, alleys, rights-of-way, sidewalks, easements, and utility lines or agreements (hereinafter collectively referred to the “Land”);

 

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(b)           all improvements, buildings and structures owned by Ceruzzi situate on the Land, including the shopping center and other facilities located thereon, and any apparatus, equipment, appliances and fixtures incorporated therein and used in connection with the operation and occupancy thereof, to the extent owned by Ceruzzi (hereinafter collectively referred to as the “Improvements”);

 

(c)           all right, title and interest of Ceruzzi in and to the leases and other occupancy agreements with the tenants set forth on Exhibit “B” attached hereto covering all or any portion of the Real Property or the Improvements to the extent they are in effect on the Closing Date (as such term is defined in Section 3.1 hereof) (hereinafter collectively referred to as the “Leases”), together with all current rents and other sums due thereunder (hereinafter referred to as the “Rents”);

 

(d)           the non-exclusive right to use all of Ceruzzi’s architectural and engineering plans, specifications and drawings, soil studies, land surveys, environmental studies and reports, hazardous waste studies and reports, market reports and surveys which are in the possession of the Ceruzzi (if any) which relate to the Property (hereinafter collectively referred to as the “Plans”);

 

(e)           all utility, service, equipment, maintenance and other contracts relating to the ownership, maintenance or use of the Property, as approved during the Due Diligence Period (as hereinafter defined) by Inland (hereinafter collectively referred to as the “Property Contracts”);

 

(f)            to the extent assignable, all permits, approvals and licenses issued by any federal, state or local governmental authority or agency pertaining to the ownership, operation, maintenance or use of the Land, including, without limitation, zoning, site plan and subdivision approvals and developers’ agreements (hereinafter collectively referred to as the “Permits”);

 

(g)           all books, records and operating reports in Ceruzzi’s possession, which are necessary to ensure continuity of operation of the Property (hereinafter collectively referred to as the “Records”);

 

(h)           all right, title and interest, if any, of Ceruzzi in and to the operating names of each Property (which shall expressly exclude the names: Stop & Shop, Giant and BI-LO in all cases); and

 

(i)            all warranties and/or guaranties for materials and workmanship benefiting the Purchaser, to the extent assignable by their terms (hereinafter collectively referred to as the “Warranties”).

 

1.2          Contribution Value; Escrow Agent.

 

(a)           Ceruzzi is to contribute and Inland is to accept all of the Property for the aggregate Contribution Value of ONE HUNDRED THIRTY MILLION FOUR HUNDRED THIRTY THOUSAND and NO/100 DOLLARS ($130,430,000.00)  for the “Property Values” described upon “Exhibit O,” attached hereto and made a part

 

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hereof (hereinafter collectively referred to as the “Contribution Value”). The Contribution Value shall be paid and is subject to adjustment as provided in subsections 1.2 (g) and 1.2 (h), below.

 

(b)           Upon the execution and delivery of this Agreement by Ceruzzi and Inland, Inland shall deposit with Chicago Title Insurance Company, 171 N. Clark Street, Chicago, IL 60601, the sum of ONE MILLION and NO/100  ($1,000,000.00) DOLLARS (hereinafter referred to as the “Good Faith Deposit”). This Agreement shall not be deemed to be effective and binding upon the parties hereto unless and until the Good Faith Deposit is so delivered. If the Good Faith Deposit is not paid within two business days following complete execution of this Agreement by all parties, this Agreement shall be null and void and no party shall be bound by the terms hereof. The Escrow Agent shall hold the Good Faith Deposit in an interest-bearing trust account maintained by the Escrow Agent at Chicago Title Insurance Company, Chicago Office (hereinafter referred to as the “Deposit Escrow Account”), in accordance with the terms and conditions of this Agreement. The term “Deposit” shall mean and refer to the Good Faith Deposit excluding all accrued interest in the Deposit Escrow Account, which shall be the property of Inland in all events. The Deposit shall be distributed in accordance with the terms of this Agreement.

 

(c)           Intentionally deleted.

 

(d)           (i)            The duties of the Escrow Agent are limited to those specifically provided for herein and are purely ministerial in nature. Escrow Agent shall incur no liability hereunder or otherwise except for its own gross negligence or willful misconduct, and Ceruzzi and Inland hereby release Escrow Agent from any liability (other than as excepted herein) for any action taken by it hereunder or for any failure or refusal to act hereunder or for any other matter. Unless Escrow Agent shall have been guilty of gross negligence or willful misconduct, Ceruzzi and Inland, jointly and severally, agree to indemnify and hold harmless Escrow Agent from and against any liability incurred by it as a result of its acting as escrow Agent hereunder. Notwithstanding the immediately preceding sentence, however, Inland shall be solely responsible for the payment of all fees and other compensation charged by the Escrow Agent for acting as such hereunder, including the reimbursement of any costs and expenses incurred by the Escrow Agent in connection with its acting as Escrow Agent hereunder.

 

(ii)           Escrow Agent shall not be bound in any way or by any agreement or contract between Ceruzzi or Inland, whether or not it has knowledge thereof, and Escrow Agent’s only duties and responsibilities shall be to hold the Deposit as escrow agent and to dispose of the Deposit in accordance with the terms of this Agreement. Without limiting the generality of the foregoing, Escrow Agent shall, in the absence of its gross negligence or willful misconduct, have no responsibility to protect the Deposit and shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit for any cause. Escrow Agent may, at the expense of Ceruzzi and Inland, consult with counsel and accountants in connection with its duties under this Agreement and Escrow

 

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Agent shall be fully protected in any act taken, suffered or permitted by it in good faith in accordance with the advice of such counsel and accountants. Escrow Agent shall not be obligated to take any action hereunder which may, in its reasonable judgment, involve it in any liability unless Escrow Agent shall have been furnished with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.

 

(iii)          Escrow Agent is acting as a stakeholder only with respect to the Deposit. If there is any dispute as to whether Escrow Agent is obligated to disburse the Deposit or as to whom the Deposit is to be delivered, Escrow Agent shall not make any delivery, but in such event Escrow Agent shall hold the Deposit until receipt by Escrow Agent of any authorization in writing, signed by all parties having an interest in such dispute, directing the disposition of the Deposit. In the absence of such authorization Escrow Agent shall hold the Deposit until the final determination of the rights of the parties in any appropriate proceeding. Escrow Agent shall have no responsibility to determine the authenticity or validity of any notice, in accordance with any written notice, direction or instruction given to it under this Agreement and believed by it to be authentic. If such written authorization is not given, or proceedings for such determination are not begun, within thirty (30) days after the dispute arises, Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to deposit the Deposit with a court of the State of Connecticut. Pending such determination Escrow Agent shall be reimbursed for all costs and expenses of such action or proceeding, including, without limitation, attorneys’ fees and disbursements by the party determined not to be entitled to the Deposit. Upon making delivery of the Deposit in the manner provided in this Agreement, Escrow Agent shall have no further liability hereunder. In no event shall Escrow Agent be under any duty to institute, defend or participate in any proceeding which may arise between Ceruzzi and Inland in connection with the Deposit.

 

(iv)          Escrow Agent or any successor Escrow Agent may resign at any time by giving fifteen (15) days’ prior notice of resignation to the other parties hereto, such resignation to be effective on the date specified in such notice. In case the office of Escrow Agent shall become vacant for any reason, Ceruzzi may appoint a title company, bank or trust company that is reasonably acceptable to Inland as successor Escrow Agent to the retiring Escrow Agent, whereupon such successor Escrow Agent shall succeed to all rights and obligations of the retiring Escrow Agent as if originally named hereunder, and the retiring Escrow Agent shall duly transfer and deliver to such successor Escrow Agent the funds and records, including without limitation the Deposit, held by the retiring Escrow Agent hereunder.

 

(e)           Escrow Agent shall execute this Agreement solely for the purpose of being bound by the provisions of Sections 1.2(b) and (d) hereof and to acknowledge its receipt of the Good Faith Deposit.

 

(f)

 

(i)  At Closing, Ceruzzi shall receive the Contribution Value in operating units equal to or greater than Forty-three Million Four Hundred Thirty Thousand and no/100 Dollars ($43,430,000.00) (the “Operating Units”) in the JV’s described upon

 

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Exhibit “L” as so-called “down REIT” Delaware limited liability companies (collectively, the “DR LLC”), which operating units shall be valued at $10.00 per unit; and (ii) the balance of the Contribution Value in cash. Attached hereto as Exhibit “K” and made a part hereof is the base form of DR LLC operating agreement (collectively, the “DR LLC OA”). The parties hereto agree to execute and/or cause the execution of the DR LLC OA at or prior to the date of Closing.

 

(ii)  The base form of DR LLC OA shall be modified to apply to the terms of this transaction, including but not limited to the following (in the event of any conflict between the terms of the attached form of DR LLC OA and this Agreement, the terms of this Agreement shall control):

 

A.     The “Investor Preferred Return” (as described by the DR LLC OA) shall be a per annum rate equal to five and one-half (5 ½%) percent on “Investor’s Invested Capital” (as described by the DR LLC OA).

 

B.     Ceruzzi shall have the right to redeem (put) all of its units (i.e., partial redemption is not permitted) at any time from and after December 15, 2008; and

 

C.     Inland shall have the right to call (redeem) the Ceruzzi units at any time from and after the fifth (5^th) anniversary of the date of Closing (“Inland’s Call Notice”), provided however that Ceruzzi shall have the right to toll the call (redemption) of the Ceruzzi units pursuant to the terms of Inland’s Call Notice by electing, within 5-business days of the date of receipt of Inland’s Call Notice, to freeze the Investor Preferred Return at 5.5% per annum for a maximum period expiring on the date which is 10-years from the date of Closing (the “10-Year Date”).

 

D.     In any event, Inland shall have the right to call (redeem) the Ceruzzi units at any time from and after the 10-Year Date.

 

(iii)          The Member II Entities and Ceruzzi shall (through the JV’s, as sole member) form single purpose limited liability companies to take title to each Property (the “Grantees”). The names of the Grantees are shown upon Exhibit “M” attached hereto and made a part hereof.

 

(iv)          No later than the Closing Date, Ceruzzi shall obtain the agreement of Stop & Shop, Giant and BI-LO, as applicable, to make per diem payments to Inland (at a minimum, on a prorated monthly basis) together with the rental payments required to be made pursuant to the terms of the Leases, equal to the “Make Whole Payments” described upon Exhibit “O” for each day from the date of Closing through the respective date each tenant is required to increase its payment of base rent in accordance with the terms of the Leases.

 

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ARTICLE 2

 

Title and Condition of Property; Financing

 

2.1          State of Title.

 

(a)           Title shall be conveyed to the Grantees at Closing in fee simple by local jurisdiction form bargain and sale deed with covenants against grantor’s acts and shall be insurable at regular rates free and clear of any and all liens, claims, encumbrances, mortgages, deeds of trust and security interests (except for the lien of real estate taxes not yet due and payable), but subject to all Permitted Exceptions (as such term is defined in Section 2.1(c) hereof).

 

(b)           Inland, the cost and expense thereof to be paid by Inland, shall obtain a preliminary title search of each Property (hereinafter collectively referred to as the “Title Commitment”) from Chicago Title Insurance Company (in such capacity, hereinafter referred to as the “Title Company”), pursuant to which the Title Company shall commit to insure (upon the payment of a requisite premium at regular rates) that the Grantees shall own good and indefeasible fee simple title to the Property as described in Section 2.1(a) of this Agreement. Inland shall forward a complete copy of the Title Commitment to Ceruzzi within five (5) business days after Inland’s receipt of same. Inland shall have until 5 p.m. on April 24, 2006 (hereinafter referred to as the “Due Diligence Period”) within which to object, by written notice to Ceruzzi, to any exceptions to title set forth in the Title Commitment. Ceruzzi, at the sole cost and expense of Inland, shall cause a reputable surveyor licensed in the state of situs of each Property, to prepare and deliver an ALTA as-built survey of each Property (to specifications approved by Inland) (collectively, the “Survey”) to the Grantees and Ceruzzi and the Title Company no later than 30-days prior to the expiration of the Due Diligence Period. Inland shall have until 5:00 p.m. on the last day of the Due Diligence Period within which to notify Ceruzzi in writing that Inland objects to any state of facts as shown on any Survey, which written notice must be given contemporaneously with any written notice given as to exceptions to title referred to above. If Inland notifies Ceruzzi in writing that Inland objects to any exceptions to title and/or to any state of facts in the Survey (hereinafter referred to as a “Title Objection Notice”), Ceruzzi shall have ten (10) business days after receipt of such notification to notify Inland (i) that Ceruzzi will remove the Title Objection Notice exceptions from title or, if applicable, remove the matters as shown on the Survey on or before the Closing or (ii) that Ceruzzi elects not to cause such exceptions or matters to be removed. If Ceruzzi fails to notify Inland within such ten (10) business days, Ceruzzi shall be deemed to have given notice under clause (ii) above. If Ceruzzi gives (or is deemed to have given) Inland notice under clause (ii) above, Inland shall have five (5) business days from the date of receipt of such notice (or in a case where Ceruzzi gives no such notice, from the last date on which such notice could have been given) in which to notify Ceruzzi and the Escrow Agent (x) that Inland will nevertheless proceed with the transactions contemplated by this Agreement and the Grantees shall then take title to the Property subject to such exceptions and such matters without reduction of the Contribution Value or (y) that Inland will terminate this

 

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Agreement. If Inland does not provide any notice contemplated by the immediately preceding sentence, Inland shall be deemed to have elected that the Grantees shall take title to the Property pursuant to clause (x) above. If this Agreement is terminated pursuant to the provisions of Section 2.1(b)(y), (i) this Agreement shall terminate and be of no further force and effect, (ii) no party hereto shall have any further rights or obligations hereunder (except for representations, warranties and/or any indemnity obligations of any party pursuant to the provisions of this Agreement which expressly survive termination of this Agreement), and (iii) the Escrow Agent shall immediately return the Deposit to Inland.

 

(c)           The term “Permitted Exceptions” as used herein shall mean (i) the lien of real estate taxes, assessments and water and sewer charges not yet due and payable, (ii) all matters set forth in the Title Commitment and approved by Inland or deemed approved by Inland as provided hereinabove, provided, however, matters set forth in the Title Commitment for which the Standards of Title (or equivalent) of the Bar Association of each state in which a Property is located recommend no curative action be taken shall be deemed approved (iii) intentionally deleted, (iv) all existing building, zoning and other city, state, county or federal laws, codes and regulations affecting the Property, (v) any existing general utility easements serving the Property (provided that such easements do not subject any owner of such Property to obligations other than are usual and customary in similar easements and provided further that no Improvements (other than parking areas and access aisles) are constructed on such easements), (vi) such state of facts as would be shown by accurate survey of the Property, (vii) the Leases, and (viii) any title exception created directly by any act or omission of Inland or its representatives, agents, employees or invitees.

 

(d)           Ceruzzi’s obligation to convey title to the Property is solely as set forth in Section 2.1(a) hereof. To the extent that Inland may elect, at its option, to request the Title Company to issue endorsements to the most current form of ALTA owner’s title insurance policy as currently and customarily used in the state of situs of each Property, the issuance of such endorsements shall be paid by Inland, and (to the extent that Inland has not terminated this Agreement during the Due Diligence Period in accordance with the terms of Section 2.4 hereof) the issuance of any such endorsements shall not be a pre-condition to Inland’s obligation to consummate the transactions contemplated by this Agreement.

 

2.2          Investigations; No Reliance on Documents; As-Is Sale.

 

(a)           Except as expressly set forth in this Agreement, neither Ceruzzi nor Inland makes any representations or warranties as to the truth, accuracy or completeness of any materials, data or information delivered by such party or its brokers or agents to the other party in connection with the transaction contemplated hereby Ceruzzi and Inland acknowledge and agree that all materials, data and information delivered by the other party in connection with the transactions contemplated hereby are provided to the other party as a convenience only and that any reliance on or use of such materials, data or information shall be at the sole risk of the party receiving such materials, data or information from the other party, except as otherwise expressly stated

 

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herein. Neither Ceruzzi, nor any affiliate of Ceruzzi, nor the persons or entities which prepared any report or reports (unless Inland has obtained reliance letters from any such persons or entities or has established legal privity with such persons or entities by some other means) delivered by Ceruzzi to Inland, shall have any liability to Inland for any inaccuracy in or omission from any such reports.

 

(b)           Except as expressly set forth in this Agreement and in any documents delivered by Ceruzzi at the Closing, it is understood and agreed that Ceruzzi is not making and has not at any time made any warranties or representations of any kind or character, express or implied, with respect to the Property, including, but not limited to, any warranties or representations as to habitability, merchantability or fitness for a particular purpose, or as to the state of title, physical condition, environmental condition and/or zoning of the Property.

 

INLAND ACKNOWLEDGES AND AGREES THAT UPON CLOSING CERUZZI SHALL CONTRIBUTE AND CONVEY OR ASSIGN TO THE JV’S AND GRANTEES AND INLAND SHALL ACCEPT THE Property “AS IS, WHERE IS, WITH ALL FAULTS” AND WITH ALL LATENT OR PATENT DEFECTS, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED BY CERUZZI AT THE CLOSING. INLAND HAS NOT RELIED AND WILL NOT RELY ON, AND CERUZZI IS NOT LIABLE FOR OR BOUND BY ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO ANY PROPERTY OR RELATING THERETO MADE OR FURNISHED BY CERUZZI, OR ANY REAL ESTATE BROKER OR AGENT PURPORTING TO REPRESENT CERUZZI, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR DOCUMENTS EXECUTED AND DELIVERED BY CERUZZI AT THE CLOSING. INLAND ALSO ACKNOWLEDGES THAT THE CONTRIBUTION VALUE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS.”  IN ADDITION, CERUZZI WILL HAVE NO OBLIGATION TO PROVIDE ANY REPAIRS, ALTERATIONS OR IMPROVEMENTS TO THE PROPERTY AS A CONDITION PRECEDENT TO INLAND’S OBLIGATION TO CLOSE TITLE. IN FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION THEREOF, INLAND SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE CONTRARY, INLAND IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM CERUZZI OR ANY PARTNER, MEMBER, MANAGER, SHAREHOLDER, OFFICER OR DIRECTOR OF CERUZZI OR FROM ANY EMPLOYEE, ATTORNEY, AGENT OR REPRESENTATIVE OF CERUZZI AS TO ANY MATTER CONCERNING ANY PROPERTY OR ANY MATERIALS PROVIDED BY THE CERUZZI PURSUANT TO SECTION 2.3 HEREOF, INCLUDING WITHOUT LIMITATION:  (i) THE QUALITY, NATURE, HABITABILITY, MERCHANTABILITY, USE, OPERATION, VALUE, MARKETABILITY, ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY

 

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OR ANY ASPECT OR PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, STRUCTURAL ELEMENTS, FOUNDATIONS, ROOFS, APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, UTILITY SYSTEMS, FACILITIES, APPLIANCES, SOILS, GEOLOGY OR GROUNDWATER, (ii) THE DIMENSIONS OR LOT SIZE OF ANY PROPERTY OR THE SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR OF ANY TENANT SPACE THEREIN, (iii) THE DEVELOPMENT OR INCOME POTENTIAL, OR DEVELOPMENT OR OTHER RIGHTS OF OR RELATING TO PROPERTY, (iv) PROPERTY’S INSURABILITY, MERCHANTABILITY, FITNESS, SUITABILITY, OR ADEQUACY FOR ANY PARTICULAR PURPOSE, (v) THE ZONING OR OTHER LEGAL STATUS OF PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF PROPERTY, (vi) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON OR ENTITY (INCLUDING, WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT), (viii) THE ABILITY OF INLAND TO OBTAIN ANY GOVERNMENTAL APPROVALS, LICENSES OR PERMITS NECESSARY FOR INLAND’S INTENDED USE OR DEVELOPMENT OF THE PROPERTY, (viii) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS ON, IN, UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR NEIGHBORING PROPERTY, (ix) THE DESIGN, CONSTRUCTION OR THE QUALITY OF ANY LABOR AND MATERIALS USED IN THE CONSTRUCTION OF ANY IMPROVEMENTS, (x) THE CONDITION OF TITLE TO THE PROPERTY, (xi) THE LEASES, CONTRACTS OR ANY OTHER AGREEMENTS AFFECTING THE PROPERTY OR THE INTENTIONS OF ANY PARTY WITH RESPECT TO THE NEGOTIATION AND/OR EXECUTION OF ANY LEASE OR CONTRACT WITH RESPECT TO THE PROPERTY, OR THE APPLICABLE CERUZZI’S OWNERSHIP, DEVELOPMENT OR OPERATION OF THE PROPERTY OR (xii) THE ECONOMICS OF, OR THE INCOME AND EXPENSES, REVENUE OR EXPENSE PROJECTIONS OR OTHER FINANCIAL MATTERS, RELATING TO THE PROPERTY, OR THE OPERATION THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INLAND AGREES THAT INLAND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF CERUZZI, WHETHER SUCH REPRESENTATION OR WARRANTY IS IMPLIED, PRESUMED OR EXPRESSLY PROVIDED, ARISING BY VIRTUE OF ANY STATUTE OR COMMON LAW. INLAND AGREES THAT CERUZZI IS UNDER NO DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO ANY CERUZZI OR TO CONFIRM, INVESTIGATE OR QUESTION THE ADEQUACY OF ANY APPRAISAL, REPORT, ANALYSES OR STUDY OF ANY ASPECT OF THE PROPERTY PREPARED OR OBTAINED BY CERUZZI.

 

(c)           Inland’s acceptance of Ceruzzi’s deed for the Property in favor of the Grantees shall be deemed to be full performance by Ceruzzi of, and will discharge Ceruzzi from, all liabilities and obligations under this Agreement, and thereafter Ceruzzi shall have no liability or obligation to Inland or to any subsequent owner of the Property

 

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with respect to the Property, nor any liability or obligation to any other person, firm, corporation or public body with respect to actions or claims which arise on or after the Closing Date with respect to the Property. Upon transfer of the Property, Inland shall be deemed to have accepted and shall be subject to the terms, conditions and other obligations applicable to the owner of, and relating to, the Property which are set forth in any governmental approvals relating to the construction, use or occupancy of the Property, including without limitation, site plan approvals and developer’s agreements, whether or not same shall have been recorded.

 

(d)           Inland, in consideration for the promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged, as of Closing does hereby release and forever discharge Ceruzzi from any and all actions, causes of action, suits, controversies, claims and demands whatsoever, in law and in equity, for or on account of injuries claimed to have been received by Inland in connection with the condition of the Property as of the date of Closing, including without limitation the geophysical and environmental condition on, or originating from, the Property. It is expressly understood and agreed by Inland and Ceruzzi that this release specifically applies to any claims made in connection with any possible environmental contamination on, or originating from, the Property, and/or any violation of the Environmental Laws (as such term is hereinafter defined) by the Ceruzzi in connection with the Property. For the purposes of this release, the term “environmental contamination” shall include any type of environmental orders, statutes or regulations applicable to the Property, including without limitation to the Comprehensive Environmental Response, Compensation and Liability Act, the Superfund Amendments and Reauthorization Act, the Federal Clean Water Act, the Spill Compensation and Control Act, the Federal Water Pollution Control Act, the Underground Storage of Hazardous Substances Act, the Resource Conservation and Recovery Act and all other applicable federal, state and/or local environmental acts (hereinafter collectively referred to as the “Environmental Laws”) as the same are currently in force or may be later amended, as well as any other claims, suits or actions arising from or related to the environmental condition of the Property. By accepting title to the Property through the Grantees at Closing, Inland shall be deemed to have agreed that Inland:  (i) is satisfied with the environmental conditions of the Property (regardless of whether the Property complies with all Environmental Laws or other laws, orders, statutes or regulations affecting the Property) and that Inland shall have been given the opportunity to determine, to its own satisfaction, that the Property complies with all Environmental Laws or other laws, orders, statutes or regulations affecting the Property; (ii) accepts that Property in an “AS IS” condition without relying on any verbal or written statement or representation relating to the Property that may have been made by the Ceruzzi (except as expressly set forth in this Agreement); and (iii) shall be solely responsible for any environmental contamination on, or originating from, the Property which is not disclosed in the Environmental Assessments to be obtained by Inland pursuant to Section 2.3 hereof or which otherwise occurs after the Closing Date due to the actions or inactions of the Inland, its successors and/or assigns or any third party, and Inland agrees that it will be solely responsible for any such environmental contamination. It is understood and agreed that Ceruzzi does not admit any liability for any environmental contamination, and liability on the part of Ceruzzi is expressly denied.

 

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(e)           The provisions of this Section 2.2 shall survive Closing or termination of this Agreement.

 

2.3          Due Diligence Period. Inland shall have u