Exhibit 10.252
Allstate Life Insurance Company
Loan No. 122504
CLOSING CERTIFICATE
INLAND WESTERN SEATTLE NORTHGATE NORTH, L.L.C., a Delaware limited
liability company ("Borrower") hereby makes the following representations and
warranties to, and for the benefit of, ALLSTATE LIFE INSURANCE COMPANY, an
Illinois insurance corporation ("Lender"), with the knowledge that Lender is
relying thereon in making a loan in the aggregate principal amount of
$26,650,000 (the "Loan") to Borrower pursuant to the terms of that loan
commitment dated _______________, 2004, as amended (the "Commitment") between
Borrower and Lender. Initially capitalized terms used but not defined herein
have the same meanings given them in the Deed of Trust, Assignment of Leases,
Rents and Contracts, Security Agreement and Fixture Filing of even date herewith
(the "Deed of Trust") securing the Loan.
(a) Borrower has good and marketable title to the Property and has
good title to the other Collateral, free and clear of all liens or encumbrances
other than those to which Lender has specifically consented.
(b) No actions, suits, investigations, litigation, bankruptcy,
reorganization or other proceedings are pending at law or in equity or before
any federal, state, territorial, municipal or other government department,
commission, board, bureau, agency, courts or instrumentality, or to the best of
its knowledge, are threatened, against or affecting Borrower or its sole member,
the operations of the Property or, to Borrower's actual knowledge, any tenant in
the Improvements, (i) which would, as of the date hereof, affect the validity or
priority of the lien of the Deed of Trust, (ii) which affect the ability of
Borrower to perform its obligations pursuant to and as contemplated by the terms
and provisions of the Commitment, or (iii) which could materially and adversely
affect the operations or financial condition of Borrower or its sole member.
None of Borrower or its sole member has been adjudicated as bankrupt, has ever
filed or has had filed against it, any petition in bankruptcy or has otherwise
taken advantage of any bankruptcy, insolvency or other readjustment of debt
laws.
(c) The execution, delivery and performance of the Commitment, the
Note, the Deed of Trust, the Environmental Indemnity Agreement and the Related
Agreements will not constitute a breach or default under any other agreement to
which Borrower is a party or may be bound or affected, or a violation of any law
or court order which may affect the Property, any part thereof, any interest
therein, or the use thereof.
(d) Borrower is not in violation of or in default with respect to any
term or provision of any other loan commitments, mortgage, deed of trust,
indenture, contract, or instrument applicable to Borrower or the Property or by
which it is bound or with respect to any order, writ, injunction, decree or
demand of any court or any governmental agency or authority.
(e) The rent roll attached as EXHIBIT A accurately reflects the leases
and income from the Property as of the date indicated thereon.
(f) Borrower has not entered into any leases and there are no
unrecorded leases or other arrangements for occupancy of space within the
Property other than the leases reflected in the rent roll attached as EXHIBIT A.
(g) To Xxxxxxxx's actual knowledge, no condemnation of any portion of
the Property has commenced or, to Xxxxxxxx's actual knowledge, is contemplated
by any governmental authority.
(h) All factual information set forth in the Commitment and its
exhibits, all financial statements, operating statements, leases and rent rolls
previously furnished by or on behalf of Borrower to Lender in connection with
the Loan and all other submissions referred to herein or required by the
Commitment are true, complete and correct in all material respects as of the
date indicated thereon, are not misleading in any material respect and do not
omit any information required to prevent such statements, loan submissions or
materials from being materially misleading under the circumstances.
(i) No material adverse change in the operations of the Property or in
the financial condition of Borrower has occurred since the date of preparation
of the most recent financial statements and operating statements delivered to
Lender.
(j) To Borrower's actual knowledge, the Property is structurally sound
and the operation of the Property complies with all applicable zoning,
environmental protection or control codes and fire, electrical and building
codes, rules and regulations. To Borrower's actual knowledge, there is no
license, approval or permit, necessary for either the lawful operation of the
Property or the lawful occupancy thereof, including, without limitation,
utility, building, zoning, subdivision control, land and water use,
environmental protection and flood hazard permits, which has not been obtained.
(k) Borrower is not, to the best of its knowledge, in default under
any lease; no tenant in the Improvements has committed an uncured monetary
default under its lease; all conditions precedent to any tenant's obligation to
pay rent have been satisfied and, to Borrower's actual knowledge, no tenant in
the Improvements has committed a nonmonetary default under its lease; no tenant
lease contains any option to purchase any interest in the Property.
(l) There are no unrecorded contracts to purchase the Property or any
interest therein.
(m) Except as otherwise set forth in the Phase I Environmental Site
Assessment of the Property prepared by ATC Associates, Inc., dated September 10,
2003 and the Phase I Environmental Site Assessment Update prepared by ATC
Associates, Inc., dated June 13, 2004, and other than Hazardous Materials (as
defined below) in quantities and of types reasonably and customarily associated
with general office use which have been and are stored, used and disposed of in
compliance with Hazardous Material Laws (as defined below) and the presence of
which do not require compliance with any reporting requirements under any
Hazardous Material Laws, no Hazardous Materials have been installed, used,
generated, manufactured, treated, handled, refined, produced, processed, stored
or disposed of, in, on or under the Property, including without limitation, the
surface and subsurface waters of the Property, nor has any activity been
undertaken on the Property which would cause: (i) the Property to become a
hazardous waste treatment, storage or disposal facility within the meaning of,
or otherwise bring the Property within, any Hazardous Material Laws; (ii) a
release or threatened release of Hazardous Material from the Property within the
meaning of, or otherwise bring the Property under, any Hazardous Material Laws;
or (iii) the discharge of Hazardous Material which would require a permit under
any Hazardous Material Laws. There are no conditions with respect to the
Property which would cause a violation or support a claim under any Hazardous
Material Laws. No underground storage tanks or underground deposits of Hazardous
Materials are or
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were located on the Property and subsequently removed or filled. For purposes of
this representation, "Hazardous Materials" means and includes asbestos or any
substance containing asbestos, polychlorinated biphenyls, any explosives,
radioactive materials, chemicals known or suspected to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants, emissions,
infectious wastes, any petroleum or petroleum-derived waste or product or
related materials and any items defined as hazardous, special or toxic
materials, substances or waste under any Hazardous Material Laws, or any
material which shall be removed from the Property pursuant to any administrative
order or enforcement proceeding or in order to place the Property in a condition
that is suitable for ordinary use. "Hazardous Material Laws" means all federal,
state and local laws (whether under common law, statute or otherwise),
ordinances, rules, regulations and guidance documents now in force, as amended
from time to time, in any way relating to or regulating human health or safety,
industrial hygiene or environmental conditions, protection of the environment,
pollution or contamination of the air, soil, surface water or groundwater, and
includes, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the
Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C.
Section 7401, et seq., the Occupational Safety and Health Act, 29 U.S.C. Section
651, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Federal Water Pollution Control Act, 33 U.S.C. Section 1321,
et seq., and the Toxic Substances Control Act, 15 U.S.C, Section 2601, et seq.,
and the amendments, regulations, orders, decrees, permits, licenses or deed
restrictions now or hereafter promulgated thereunder.
(n) The Property consists of a separate tax lot or lots assessed
separately and apart from any other property owned by Borrower or any other
owner.
(o) Other than as indicated on that certain ALTA Survey of the
Property prepared by Centre Pointe Surveying; dated April 14, 2004, last revised
June 23, 2004, the Property does not lie in a 100 year flood plain that has been
identified by the Secretary of Housing and Urban Development or any other
governmental authority.
(p) The use of the Property by Xxxxxxxx and all tenants, subtenants,
licensees and other material users is in compliance with all use restrictions
contained in leases and restrictions affecting the Property.
Borrower hereby agrees that these representations and warranties are
also made with the purpose of enabling the holders of the Deed of Trust and the
Note, from time to time, to rely on the truth of the matters recited in these
representations and warranties as of the date they were made.
This Closing Certificate shall be deemed to be a Related Agreement as
defined in the Deed of Trust.
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[Signature Page Follows]
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The above representations and warranties are all made as of the
Disbursement Date, as defined in the Note, and as of July ___, 2004.
BORROWER:
INLAND WESTERN SEATTLE NORTHGATE
NORTH, L.L.C., a Delaware limited liability company
By: INLAND WESTERN RETAIL REAL ESTATE
TRUST, INC., a Maryland corporation,
Its sole member
By: /s/ [ILLEGIBLE]
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Its: Asst. Secretary
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EXHIBIT A
RENT ROLL
