Exhibit 10.306
REINSTATEMENT AND FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS REINSTATEMENT AND FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT,
(this "AMENDMENT") is entered into as of July 23, 2004, by and between ITW
MORTGAGE INVESTMENTS III, INC., a Delaware corporation ("SELLER") and INLAND
REAL ESTATE ACQUISITIONS, INC. ("PURCHASER").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into that certain Purchase and
Sale Agreement dated effective May 6, 2004, as amended by letter dated June 2,
2004, by Second Amendment to Purchase and Sale Agreement dated June 18, 2004
(the "SECOND AMENDMENT") and by Third Amendment to Purchase and Sale Agreement
dated June 25, 2004 (the "THIRD AMENDMENT") and by Fourth Amendment to Purchase
and Sale Agreement dated July 7, 2004 (the "FOURTH AMENDMENT") (as amended, the
"AGREEMENT"), providing for the purchase and sale of certain real property known
as "Safeway Plaza at Marysville," located in Marysville, Snohomish County,
Washington, as more particularly described in the Agreement, and other real and
personal property described in the Agreement; and
WHEREAS, prior to the date hereof, Purchaser terminated the Agreement
pursuant to Agreement.
WHEREAS, Seller and Purchaser desire to reinstate and mutually amend and
modify the Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants of the
parties hereto, and other good and valuable consideration to the parties hereto,
the receipt and sufficiency of which is hereby acknowledged and confessed by the
parties, and for the benefit which will inure to each party from the execution
of this Amendment, Seller and Purchaser hereby agree to reinstate and amend and
modify the Agreement as follows, with the Amendment to be effective as of the
date above.
1. Seller and Purchaser hereby reinstate the Agreement. From and after the
date of this Amendment, but only after Title Company's receipt and
acknowledgment of the Xxxxxxx Money previously returned to Purchaser by Title
Company as a result of Purchaser's termination, the Agreement shall be deemed to
be in full force and effect as if no termination had occurred, as amended by
this Amendment.
2. All contingencies and conditions precedent to Purchaser's Closing
obligations set forth in the Agreement are hereby deemed satisfied and Purchaser
shall have no further right to terminate the Agreement in connection therewith.
The contingencies and conditions precedent that are hereby deemed satisfied
include, without limitation, (i) the items set forth on SCHEDULE I of the Second
Amendment, Third Amendment and Fourth Amendment, (ii) Purchaser's receipt of all
deliveries required under SECTION 4.1 of the Agreement, (iii) Purchaser's
satisfaction with the Property pursuant to SECTION 4.1.1 and SECTION 4.2 of the
Agreement, (iv) Purchaser's satisfaction with the Title Commitment and the
Survey pursuant to SECTION 4.1.2 of the Agreement, and (v) Purchaser's receipt
of all Required Tenant Estoppels pursuant to SECTION 4.8 of the Agreement. The
$250,000.00 Xxxxxxx Money, upon receipt by Title Company, is hereby deemed
immediately earned by Seller and shall be non-refundable to Purchaser except as
required by SECTIONS 4.7(a), 4.9, 7.1, 7.2 and 8.1 of the Agreement and
PARAGRAPH 3 of this Amendment.
3. The Agreement is hereby amended to delete EXHIBIT H and all references in
SECTION 4.10 and SECTION 6.7(d) to the Holdback Escrow Agreement are hereby
deleted in their entirety.
4. Notwithstanding anything to the contrary contained herein, it shall be a
condition precedent to Purchaser's Closing obligations that on or before the
Closing Date, Purchaser shall receive (i) a lease amendment, executed by Safeway
and Seller, in the form attached hereto as SCHEDULE I, (ii) an indemnity
agreement, executed by Safeway, in the form attached hereto as SCHEDULE II,
(iii) a waiver of first offer in the form attached hereto as SCHEDULE III, and
(iv) the 3-14 Audit Letter, executed by Seller, in the form attached hereto as
SCHEDULE IV. If any of the conditions precedent set forth in this PARAGRAPH 3
are not satisfied on or before the Closing Date, Seller shall have the right to
extend the scheduled Closing Date an additional three (3) business days in order
to satisfied the foregoing conditions. If such conditions remain unsatisfied at
the expiration of such addition three (3) day period, Purchaser may, as its sole
and exclusive remedy, terminate the Agreement, whereupon the Xxxxxxx Money shall
be returned to Purchaser and neither party shall have any further rights or
obligations hereunder other than the Surviving Obligations.
5. In consideration of Purchaser's waiver of all contingencies and conditions
precedent to Purchaser's Closing obligations as more particularly set forth in
PARAGRAPH 1 above (the "WAIVED MATTERS"), the parties hereto agree that the
Purchase Price is hereby reduced by $750,000.00 to $21,266,000.00. SECTION 2.1
of the Agreement is hereby amended to provide that the Purchase Price is
$21,266,000.00. Purchaser, for itself and its successors and assigns, hereby
specifically acknowledges and agrees that the Purchase Price reduction set forth
above constitutes full and final settlement between the parties as to any claims
or demands related to the Waived Matters, notwithstanding the fact that the
costs associated with the Waived Matters may exceed the Purchase Price reduction
set forth above.
6. Purchaser hereby expressly approves the amendment with Play-It-Again
Sports, a copy of which is attached hereto as SCHEDULE V.
7. All of the capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the same meaning as assigned to such terms in the
Agreement.
8. Except as modified and amended as set forth in this Amendment, the
Agreement is hereby ratified and confirmed by Seller and Purchaser and shall
remain in full force and effect and enforceable in accordance with its terms.
9. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one agreement. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the signature pages.
10. SECTION 6.1 of the Agreement is hereby amended to provide that the Closing
Date is July 26, 2004.
SIGNATURE PAGES FOLLOW
SELLER: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
BY: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its
attorney-in-fact
By: /s/ Illegible
------------------------
Name: Illegible
---------------------
Title: VP
--------------------
PURCHASER: INLAND REAL ESTATE ACQUISITIONS,
INC.,
an Illinois corporation
By: /s/ Xxx Xxxxxxx
------------------------
Name: Xxx Xxxxxxx
---------------------
Title: SR VP
--------------------
SCHEDULE I
FORM OF LEASE AMENDMENT
SEE ATTACHED
FIRST AMENDMENT TO
SHOPPING CENTER LEASE
This First Amendment to Shopping Center Lease is made as of the 16th day of
July, 2004 by and between SAFEWAY INC., a Delaware corporation ("Tenant") and
ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation ("Landlord").
WHEREAS, Landlord and Tenant are landlord and tenant, respectively, under
that certain Shopping Center Lease dated as of July 6, 2001 (the "Lease").
WHEREAS, Landlord and Tenant wish to amend the Lease as provided herein.
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENT OF SECTION 8.2.1, MANAGEMENT FEE Section 8.2.1, "Management
Fee," is hereby amended in its entirety to read as follows:
8.2.1 MANAGEMENT FEE. CAM Expenses shall include a third-party
management fee, which shall be at a commercially reasonable rate, in no
event to exceed two percent (2%) of gross rents received by Landlord from
the Shopping Center ("MANAGEMENT FEE"); except that the following expenses
shall be excluded from such gross rents for purposes of calculating such
Management Fee; (1) insurance premiums, (2) Real Property Taxes, and (3)
utility payments. Landlord shall not charge as a CAM Expense, nor otherwise
be entitled to receive from Tenant, any administrative fee or reimbursement
of its overhead costs associated with managing the Shopping Center.
Notwithstanding the foregoing, in no event will Tenant's Share of the
Management Fee exceed Twelve Thousand Dollars ($12,000) per year.
2. EFFECTIVE DATE; PREVIOUS CAM XXXXXXXX. The Management Fee amendment
provided herein shall be effective commencing August 1, 2004. There shall be no
adjustment, reimbursement or additional charge to Tenant for Management Fees in
connection with any period of time prior to August 1, 2004.
3. FULL FORCE AND EFFECT. Except as modified herein, all other terms and
conditions of the Lease are and shall remain in full force and effect.
1
IN WITNESS WHEREOF, the parties have executed this First Amendment to Lease
as of the day and year first above written.
SAFEWAY INC. ITW MORTGAGE INVESTMENTS III,
(a Delaware corporation) INC.
(a Delaware corporation)
By By GE Capital Realty Group, Inc.
--------------------------------------- a Texas corporation, Its Services
Its Assistant Vice President
By:
----------------------------
By Its:
--------------------------------------- ---------------------------
Its Assistant Secretary
[ATTACH ACKNOWLEDGMENTS]
2
SCHEDULE II
FORM OF INDEMNITY AGREEMENT
SEE ATTACHED
SCHEDULE III
FORM OF WAIVER OF FIRST OFFER
SEE ATTACHED
[PLACE ON SAFEWAY LETTERHEAD]
July ___, 2004
Inland Western Marysville, L.L.C.
C/o Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
ITW Mortgage Investments III, Inc.
X/x XX Xxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
RE: Shopping Center Lease dated July 6, 2001 (the "LEASE"), between
ITW Mortgage Investments III, Inc. and Safeway, Inc., Seattle
Division ("TENANT"), relating to Tenant's store lease at
Safeway Plaza at Marysville, Marysville, Snohomish County,
Washington (the "SHOPPING CENTER")
Ladies and Gentlemen:
As you are aware, Tenant has a Right of First Offer (as defined in
SECTION 13.2 of the Lease) to lease all or a portion of the Expansion Area (as
defined in SECTION 13.1.4 of the Lease) on the terms and conditions set forth
in SECTION 13 of the Lease. Subsequent to the execution of the Lease, Landlord
leased space in the Expansion Area (Suite 1254-E) to Rent-A-Center without first
expressly offering the premises to Tenant. Also, at the date the Lease was
executed, certain portions of the Expansion Area were leased.
Tenant hereby unconditionally forever waives and releases its Right of
First Offer solely with respect to leases in effect in the Expansion Area as of
the date of this letter, including, without limitation, Rent-A-Center's leasing
of Suite 1254-E. The foregoing waiver by Tenant shall include any and all
notices required under SECTION 13 of the Lease or otherwise required in
connection with the Right of First Offer with respect to such now existing
leases. Except as otherwise expressly set forth herein, in no event shall the
foregoing waiver and release of the Right of First Offer be construed to waive
the Right of First Offer with respect to the leasing of space in the Expansion
Area in the future to any tenant, including any tenantsnow occupying space in
the Shopping Space, all of which shall be subject to Tenant's Right of First
Offer. (That is, at the expiration of any existing leases in the Expansion Area,
any new lease to the same tenant or proposed extension of an existing lease
(other than the exercise of options provided in existing leases) shall be
subject to the Right of First Offer.)
The parties to whom this letter is addressed understand that in no
event shall this letter and the waiver and release set forth herein subject
Tenant to any liability whatsoever, except that as between Tenant, the parties
to whom this letter is addressed and any landlord under the Lease, Tenant shall
be estopped from denying the waiver and release made herein and shall not be
entitled to make any claim which is inconsistent with the terms of this letter.
Very truly yours,
SAFEWAY, INC.,
A Delaware corporation, Seattle Division
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
SCHEDULE IV
3-14 AUDIT LETTER
SEE ATTACHED
July 22, 2004
KPMG LLP
KPMG Plaza
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
ITW Mortgage Investments III, Inc., as the owner and Seller (herein so called)
of Safeway Plaza at Marysville (the "Property") is confirming its understanding
that you are performing an audit of the Property's operating statements
("Historical Summary"). In connection with Inland Western Retail Real Estate
Trust, Inc.'s preparation of the Historical Summary, Seller will make available
to you certain operating statements for the Property for calendar year ended
December, 2003. With respect to the financial records that we will make
available to you in accordance with Paragraph 1 below, we confirm, to our
current actual knowledge without investigation or inquiry (as defined below),
the following statements:
1. To Seller's current actual knowledge, Seller will make available to you
during the next forty (40) days from the date of this letter:
a) All financial records and related data for the Property reasonably
requested by you in our possession for calendar year ended December 2003.
To Seller's current actual knowledge, the financial records we deliver to
you for the Property for calendar year ended December, 2003 are fairly
presented on the basis of modified cash receipts and disbursements (i.e.
cash basis with accrual for insurance and taxes).
2. Seller has no current, actual knowledge without investigation or inquiry,
of the following:
a) Instances of fraud involving any member of management or employees who have
significant roles in internal control with respect to the Property, nor is
Seller aware, to its current actual knowledge without inquiry or
investigation, of instances of fraud by others with respect to the
Property.
b) Written communications from regulatory agencies concerning non-compliance
with, or deficiencies in, financial reporting practices received by the
undersigned with respect to the Property that could reasonably be expected
to have a material effect on the information provided by the Seller to
allow Inland Western Retail Real Estate Trust, Inc. to create the
Historical Summary for the Property.
c) Violations or possible violations of laws or regulations for the Property
for which Seller has received actual written notices from any applicable
governmental authority, nor is Seller aware, to its current actual
knowledge without inquiry or investigation, of any violations of laws or
regulations that to Seller's actual knowledge, without inquiry or
KPMG LLP
July 22, 2004
Page 2
investigation, would have a material adverse impact upon the materials
delivered or made available to you by Seller.
3. Terms such as "to our knowledge," "to the best of our knowledge", "to our
actual knowledge" or like phrases mean the current actual present and
conscious awareness or knowledge of Xxxx Xxxxxx ("Seller's
Representative"), without any duty of inquiry or investigation; provided
that so qualifying Seller's knowledge shall in no event give rise to any
personal liability on the part of Seller's Representative, or any of them,
or any other officer or employee or representative of Seller, on account of
any inaccurate statement made by Seller herein. Said terms do not include
constructive knowledge, imputed knowledge, or knowledge Seller or such
persons do not have but could have obtained through further investigation
or inquiry.
Very Truly Yours,
ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its attorney-in-fact
By
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE V
PLAY-IT-AGAIN SPORTS LEASE AMENDMENT
SEE ATTACHED
THIRD AMENDMENT TO
COMMERCIAL SHOP LEASE
THIS THIRD AMENDMENT TO COMMERCIAL SHOP LEASE, (this "AMENDMENT") is
entered into as of July 15, 2004, by and between ITW MORTGAGE INVESTMENT III,
INC., a Delaware corporation ("LANDLORD"), and XXXXX XXXXXX, an individual d/b/a
Play It Again Sports ("TENANT").
WITNESSETH:
WHEREAS, SAFEWAY, INC., a Delaware corporation ("ORIGINAL LANDLORD"), as
landlord, and Tenant entered into that certain Commercial Shop Lease dated
September 9, 1996, as amended by First Amendment to Shopping Center Lease dated
September 9, 1996, and as further amended by Second Amendment to Commercial Shop
Lease dated in 2001, as guaranteed by Tenant and Xxxxx Xxxxxx pursuant to that
certain Guaranty which is undated (as amended and guaranteed, the "LEASE"),
relating to Units A and B, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx (the
"PREMISES") at Safeway Plaza at Marysville, Snohomish County, Marysville,
Washington (the "PROPERTY").
WHEREAS, Landlord is the successor-in-interest to Original Landlord and is
the owner of the interest of the "Landlord" under the Lease.
WHEREAS, Landlord and Tenant desire to mutually amend and modify the Lease
as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants of the
parties hereto, and other good and valuable consideration to the parties hereto,
the receipt and sufficiency of which is hereby acknowledged and confessed by the
parties, and for the benefit which will inure to each party from the execution
of this Amendment, Landlord and Tenant hereby agree to amend and modify the
Lease as follows, with this Amendment to be effective as of the date above.
1. Landlord has advised Tenant, and Tenant hereby specifically acknowledges
that Tenant is delinquent in its rental payments and other charges owed to
Landlord under the Lease in the amount of $42,835.18 as of July 12, 2004 (the
"DELINQUENCY"). Tenant further acknowledges that Landlord has, among other
remedies set forth in the Lease, the right to pursue and collect such delinquent
amounts from Tenant and any guarantor under the Lease. Notwithstanding anything
to the contrary set forth herein or in the Lease, Landlord has agreed to forever
waive and release Tenant and any guarantor under the Lease from any claims
Landlord has agreed to forever waive and release Tenant and any guarantor under
the Lease from any claims Landlord may have in and to the aforementioned
Delinquency solely in the event (i) Tenant timely pays to Landlord (or its
successors and assigns) each monthly rental payment and other charges required
under the Lease commencing August 1, 2004 through and including August 1, 2005,
and (ii) Landlord receives from Tenant, no later than 3:00 p.m., Marysville,
Washington time, on Thursday July 15, 2004, an amount equal to $10,142.60 (the
"SETTLEMENT AMOUNT") by certified funds, cashier's check or other immediately
available funds, at the following address:
JSH Properties, Inc.
00000 Xxxxxxxxx 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
If Tenant fails to remain current on its rental payments and other monetary
obligations under the Lease through August 1, 2005, or if Landlord does not
timely receive the entire Settlement Amount at the
address set forth above (NO PARTIAL PAYMENTS WILL BE ACCEPTED), or if the
Settlement Amount received is not in certified funds, by cashier's check or
other immediately available funds (NO PERSONAL CHECKS WILL BE ACCEPTED), then
Landlord shall retain all rights and remedies it may have against Tenant and any
guarantor under the Lease at law and in equity, including, without limitation,
the rights and remedies of Landlord set forth in the Lease. In no event shall
Landlord's acceptance of the Settlement Amount or in rental payments thereafter
in any way be construed as a waiver or release of any rental payments or other
charges owed to Landlord under the Lease arising from and after August 1, 2004.
2. All of the capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the same meaning as assigned to such term in the
Lease.
3. The Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one agreement. To facilitate execution of this Amendment, the parties may
executed the exchange by telephone facsimile counterparts of the signature
pages.
SIGNATURE PAGES FOLLOWS
LANDLORD ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware Corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its Servicer
By: /s/ [ILLEGIBLE]
-------------------------------
Name: [ILLEGIBLE]
--------------------------
Title: VP
-------------------------
TENANT: By: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, an individual
GUARANTOR: By: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, an individual,
SS # ###-##-####
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, an individual,
SS # ###-##-####
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT, (this "AMENDMENT") is
entered into as of July 7, 2004, by and between ITW MORTGAGE INVESTMENTS III,
INC., a Delaware corporation ("SELLER") and INLAND REAL ESTATE ACQUISITIONS,
INC. ("PURCHASER").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into that certain Purchase and
Sale Agreement dated effective May 6, 2004, as amended by letter dated June 2,
2004, by Second Amendment to Purchase and Sale Agreement dated June 18, 2004
(the "SECOND AMENDMENT") and by Third Amendment to Purchase and Sale Agreement
dated June 25, 2004 (the "THIRD AMENDMENT") (as amended, the "AGREEMENT"),
providing for the purchase and sale of certain real property known as "Safeway
Plaza at Marysville," located in Marysville, Snohomish County, Washington, as
more particularly described in the Agreement, and other real and personal
property described in the Agreement; and
WHEREAS, Seller and Purchaser desire to mutually amend and modify the
Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants of he
parties hereto, and other good and valuable consideration to the parties hereto,
the receipt and sufficiency of which is hereby acknowledged and confessed by the
parties, and for the benefit which will inure to each party from the execution
of this Amendment, Seller and Purchaser hereby agree to amend and modify the
Agreement as follows, with the Amendment to be effective as of the data above.
1. Except as otherwise expressly set forth on REVISED SCHEDULE I attached
hereto (the items set forth on REVISED SCHEDULE I are hereby called the
"OUTSTANDING ITEMS"), all contingencies and conditions precedent to Purchaser's
Closing obligations, including, without limitation, the items set forth on
SCHEDULE I of the Second Amendment and SCHEDULE I of the Third Amendment, are
hereby deemed satisfied and Purchaser shall have no further right to terminate
the agreement in connection therewith. Notwithstanding anything to the contrary
contained herein, Purchaser shall have until July 16, 2004, to satisfy itself
(in Purchaser's reasonable discretion) that the Outstanding Items have been
resolved. If the Outstanding Items are not resolved in Purchaser's reasonable
discretion on or before July 16, 2004, Purchaser may, upon prior written notice
to Seller, terminate the Agreement, in which event neither party shall have any
further rights or obligations thereunder except for the Surviving Obligations.
2. All of the capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the same meaning as assigned to such terms in the
Agreement.
3. Except as modified and amended as set forth in this Amendment, the
Agreement in hereby ratified and confirmed by Seller and Purchaser and shall
remain in full force and effect and enforceable in accordance with its terms.
4. This Amendment may be executed to any number of counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one agreement. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the signature pages.
SELLER: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its
attorney-in-fact
By: /s/ [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
--------------------------
Title: VP
-------------------------
PURCHASER: INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
----------------------------
Title: Authorized Agent
----------------------------
REVISED SCHEDULE I
1. Superouts has an exclusive at the Property: The aforementioned exclusive
encumbers lots 2 and 3 (the Bank Parcel and KFC Parcel) in addition to the
Property. Purchaser will accept and amendment to Superout's lease, replacing the
legal description of the "Shopping Center" with the legal description of the
Property attached to the Agreement as EXHIBIT A, which legal description is also
attached to this Amendment as SCHEDULE II, and upon delivery to Purchaser of
such executed amendment, this condition shall be deemed satisfied. If this
condition is not satisfied, Purchaser may, as its sole and exclusive remedy,
receive a return of the Xxxxxxx Money and neither party shall have any further
rights or obligations under the Agreement except for the Surviving Obligations.
2. The 1996 Drive Aisle Easement Agreement recorded as Document No. 9604180297
refers to possible groundwater/soils contamination of a portion of lot 5, and
contains an indemnification by the easement grantor (Safeway) of the easement
grantee if damages are incurred due to this contamination. The indemnification
continues until the grantor obtains a no further action letter from the
Washington Department of Ecology. Purchaser has requested that Seller either (i)
obtain an indemnity of Purchaser by Safeway in connection with such
contamination, or (ii) obtain Safeway's consent to an assignment of Safeway's
indemnity of the Seller with respect to such contamination. This condition shall
be deemed satisfied upon Seller's delivery to Purchaser of either (i) or (ii)
above. If this condition is not satisfied, Purchaser may, as its sole and
exclusive remedy, receive a return of the Xxxxxxx Money and neither party shall
have any further rights or obligations under this Agreement except for the
Surviving Obligations.
3. The Safeway fuel site lease contains, among other things, the following
environmental provisions: (i) remediation obligations of Safeway are limited to
releases caused by the tenant and only to the extent required by environmental
agencies, and (ii) Safeway's obligation to indemnify is limited to third party
claims. Purchaser requires that the lease be amended to (A) expand the indemnity
to include any contamination (regardless of whether it is in violation of
governmental requirements), and (B) to include contamination from any source
(rather than being limited to contamination caused by Safeway). Alternatively,
Purchaser has requested that it receive evidence that (C) Safeway maintains
sufficient insurance coverage in connection with environmental matters at the
fuel site and that Purchaser will be named as an additional insured on Safeway's
environmental insurance policy (the "SAFEWAY POLICY"), and (D) that Purchaser
shall purchase at Closing an environmental insurance policy, naming Purchaser as
the insured, and providing environmental insurance coverage in an amount equal
to or greater than the deductible under the Safeway Policy (the "INLAND
POLICY"), and Seller shall credit the Purchase Price at Closing the amount of
the premium plus deductible for the Inland Policy, but in no event shall such
credit exceed $150,000.00. If the amount of the premium plus deductible for the
Inland Policy exceeds $150,000.00, and Seller does not elect to credit such
amount against the Purchase Price at Closing, then the condition precedent set
forth in this paragraph 3 shall be deemed to not be satisfied, in which event
Purchaser may, as its sole the exclusive remedy, terminate the Agreement upon
prior written notice delivered to Seller, and Title Company shall return the
Xxxxxxx Moneys to Purchaser and neither party shall have any further rights or
obligations under the Agreement except for the Surviving Obligations. If,
however, the conditions set forth in (A) and (B) are satisfied, or if the
conditions in (C) or (D) are satisfied, then the condition set forth in the
paragraph 3 shall be deemed satisfied. Notwithstanding anything to the contrary
contained in this Paragraph 3, if any condition in this Paragraph 3 is not
satisfied, Purchaser may, as its sole and exclusive remedy, receive a return of
the Xxxxxxx Money and neither party shall have any further rights or obligations
under this Agreement except for the Surviving Obligations.
4. Safeway has a right of first offer over certain premises adjacent to its
store. Rent-A-Center currently occupies space within the area encumbered by the
right of first offer. Purchaser has required
that Safeway execute a written waiver of its first offer with respect to the
premises now occupied by Rent-A-Center. This condition shall be deemed satisfied
upon Seller's delivery to Purchaser of a waiver of the first offer with respect
to Rent-A-Center's premises, executed by Safeway. If this condition is not
satisfied, Purchaser may, as its sole and exclusive remedy, receive a return of
the Xxxxxxx Money and neither party shall have any further rights or obligations
under the Agreement except for the Surviving Obligations.
5. There are declarations of covenants, conditions and restrictions recorded
in Document No. 9407110538 and 950525059 of the Official Real Property Records
of Snohomish County, Washington (collectively, the "DECLARATIONS"). These
Declarations encumber the Property, lots 2 and 3, and the "Finin Parcel"
adjacent to the Property to the east along 43rd Avenue N.E. (Alder Avenue).
Purchaser has requested that Seller obtain estoppels from each of the owners of
such parcels who are entitled to enforce such Declarations. Upon Purchaser's
receipt of executed estoppels from the owners lots 2 and 3 and the "Finin
Parcel", this condition shall be deemed satisfied. If this condition is not
satisfied, Purchaser may, as its sole and exclusive remedy, receive a return of
the Xxxxxxx Money and neither party shall have any further rights or obligations
under the Agreement except for the Surviving Obligations.
6. The Survey indicated there are monitoring xxxxx within the Property (along
State Avenue). Purchaser has requested copies of the monitoring reports, if such
monitoring reports exist. This condition shall be deemed satisfied upon
Purchaser's receipt of such monitoring reports. If this condition is not
satisfied, Purchaser may, as its sole and exclusive remedy, receive a return of
the Xxxxxxx Money and neither party shall have any further rights or obligations
under the Agreement except for the Surviving Obligations.
7. The terms and conditions of SECTION 4.10 of the Agreement (the
Citifinancial Holdback) remain outstanding.
8. It shall be a condition precedent to Purchaser's Closing obligations that
Purchaser receive originals of the executed subordination, non-disturbance and
attornment agreements from Party City, Safeway and Maryaville Dayoare. This
condition shall be deemed satisfied upon Seller's delivery to Purchaser of such
revised subordination, non-disturbance and attornment agreement, executed by the
applicable tenant. If this condition is not satisfied, Purchaser may, as its
sole and exclusive remedy, receive a return of the Xxxxxxx Money and neither
party shall have any further rights or obligations under the Agreement except
for the Surviving Obligations.
9. Purchaser has requested a separate discussion with Seller's broker
regarding the Hollywood Video CPI rent escalation and was incorrectly stated in
the offering memorandum.
10. Purchase has requested a separate discussion regarding Subs and More
vacating its premises ate the Property.
11. It shall be a condition precedent to Purchaser's Closing obligations that
Seller deliver to Purchaser an audit representation letter, addressed to
Purchaser's independent accounting firm, setting forth certain matters relating
to SECTION 10.21 of the Agreement, in form the substance acceptable to Purchaser
and Seller. If this condition is not satisfied for any reason, including Seller
unwilling or unable to deliver such letter in its sole discretion, Purchaser
may, as its sole and exclusive remedy, receive a return of the Xxxxxxx Money and
neither party shall have any further rights or obligations under the Agreement
except for the Surviving Obligations.
SCHEDULE II
PARCEL A:
XXX 0 XX XXXXXXX XXXX XXXX/XXXXXX XX XXXXXX OF SAFEWAY PLAZA AT MARYSVILLE,
ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING NO, 9505255003, IN
SNOHOMISH COUNTY, WASHINGTON, BEING A PORTION OF THE NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X., IN
SNOHOMISH COUNTY, WAHINGTON.
PARCEL B:
XXX X XX XXXX XX XXXXXXXXXX XXX XXXX XXXXXXXXXX XX. XXX00-000, RECORDED UNDER
RECORDING XX. 0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING ALL OF XXX 0
XXX X XXXXXXX XX XXX 0 XX XXXXXXX SITE PLAN/RECORD OF SURVEY OF SAFEWAY PLAZA AT
MARYSVILLE, ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING XX.
0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF THE NORTHEAST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST,
X.X., IN SNOHOMISH COUNTY, WASHINGTON.
PARCEL C:
XXX X XX XXXX XX XXXXXXXXXX XXX XXXX XXXXXXXXXX XX. XXX00-000, RECORDED UNDER
RECORDING XX. 0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF
LOT 5 OF BINDING SITE PLAN/RECORD OF SURVEY OF SAFEWAY PLAZA AT MARYSVILLE,
ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING XX. 0000000000, XX
XXXXXXXXX XXXXXX. WASHINGTON, BEING A PORTION OF THE NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X., IN
SNOHOMISH COUNTY, WASHINGTON, EXCEPT THAT PORTION THEREOF CONVEYED TO THE CITY
OF MARYSVILLE FOR RIGHT OF WAY BY DEED RECORDED UNDER RECORDING NO. 9602270122.
PARCEL C1:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO A PORTION OF PARCEL C FOR ROADWAYS,
WALKWAYS, INGRESS, EGRESS, UTILITIES AND SIGNAGE AS ESTABLISHED IN CROSS-ACCESS
AGREEMENT AND GRANT OF EASEMENTS AND RESTRICTIONS RECORDED UNDER RECORDING NO.
9407110538, AND AMENDED UNDER RECORDING NO. 9604180295 ON A PORTION OF LOT B OF
BOUNDARY LINE ADJUSTMENT RECORDED UNDER RECORDING NO. 9407115001, BEING A
PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 28,
TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X., IN SNOHOMISH COUNTY, WASHINGTON.
PARCEL D:
A NON-EXCLUSIVE EASEMENT FOR ROADWAYS, WALKWAYS, INGRESS, EGRESS AND PARKING AS
ESTABLISHED BY DECLARATION RECORDED UNDER RECORDING NO. 9505250509 AND AMENDMENT
THERETO UNDER RECORDING NO. 9604180294 ON A PORTION OF LOTS 2 AND 3 OF BINDING
SITE PLAN RECORDED UNDER RECORDING NO. 9505255003.
PARCEL E:
A NON-EXCLUSIVE EASEMENT FOR STORM DRAIN AS CREATED BY INSTRUMENT RECORDED UNDER
RECORDING NO. 9407110536.
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT, (this "AMENDMENT") is
entered into as of June 25, 2004, by and between ITW MORTGAGE INVESTMENTS III,
INC., a Delaware corporation ("SELLER") and INLAND REAL ESTATE ACQUISITIONS,
INC.
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into that certain Purchase and
Sale Agreement dated effective May 6, 2004, as amended by letter dated June 2,
2004 and by Second Amendment to Purchase and Sale Agreement dated June 18, 2004
(the "SECOND AMENDMENT") (as amended, the "AGREEMENT"), providing for the
purchase and sale of certain real property known as "Safeway Plaza at
Marysville," located in Marysville, Snohomish County, Washington, as more
particularly described in the Agreement, and other real and personal property
described in the Agreement; and
WHEREAS, Seller and Purchaser desire to mutually amend and modify the
Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants of the
parties hereto, and other good and valuable consideration to the parties hereto,
the receipt and sufficiency of which is hereby acknowledged and confessed by the
parties, and for the benefit which will inure to each party from the execution
of this Amendment, Seller and Purchaser hereby agree to amend and modify the
Agreement as follows, with the Amendment to be effective as of the date above.
1. Except as otherwise expressly set forth on REVISED SCHEDULE I attached
hereto (the items set forth on REVISED SCHEDULE I are hereby called the
"OUTSTANDING ITEMS"), all contingencies and conditions precedent to Purchaser's
Closing obligations, including, without limitation, the items set forth on
SCHEDULE I of the Second Amendment, are hereby deemed satisfied and Purchaser
shall have no further right to terminate the Agreement in connection therewith.
Notwithstanding anything to the contrary contained herein. Purchaser shall have
until July 8, 2004, to satisfy itself (in Purchaser's reasonable discretion)
that the Outstanding Items have been resolved. If the Outstanding Items are not
resolved in Purchaser's reasonable discretion on or before July 8, 2004,
Purchaser may, upon prior written notice to Seller, terminate the Agreement, in
which event neither party shall have any further rights or obligations
thereunder except for the Surviving Obligations.
2. SECTION 6.1 of the Agreement is hereby amended to provide that the Closing
Date shall be July 16, 2004.
3. All of the capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the same meaning as assigned to such terms in the
Agreement.
4. Except as modified and amended as set forth in this Amendment, the
Agreement is hereby ratified and confirmed by Seller and Purchaser and shall
remain in full force and effect and enforceable in accordance with its terms.
5. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one agreement. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the signature pages.
SELLER: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its
attorney-in-fact
By: /s/ Xxx X. Xxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxx
-------------------
Title: V.P.
------------------
PURCHASER: INLAND REAL ESTATE ACQUISITIONS, INC.
an Illinois corporation
By: /s/ Xxxx Xxxxxxxx
--------------------
Name: Xxxx Xxxxxxxx
--------------
Title: Vice President
--------------
REVISED SCHEDULE I
1. The following tenants have exclusives at the Property: Party City,
Hollywood Video, Sun Factory, Alderwood Auto Glass, Rent A Center, and
Superouts. Several of the aforementioned exclusives encumber lots 2 and 3 (the
Bank Parcel and KFC Parcel) in addition to the Property. Purchaser has requested
evidence that when lots 2 and 3 were sold, the grantors took subject to these
exclusives-so that the occupants of those two lots cannot change their use and
violate those tenants' exclusives, thereby putting Inland in default under those
leases. Alternatively, Purchaser will accept amendments to each tenant's lease,
replacing the legal description of the "Shopping Center" with the legal
description of the Property attached to the Agreement as EXHIBIT A, which legal
description is also attached to this Amendment as SCHEDULE II
2. The 1996 Drive Aisle Easement Agreement recorded as Document No. 9604180297
refers to possible groundwater/soils contamination of a portion of lot 5, and
contains an indemnification by the easement grantor (Safeway) of the easement
grantee if damages are incurred due to this contamination. The indemnification
continues until the grantor obtains a no further action letter from the
Washington Department of Ecology. Purchaser has requested evidence that this no
further action letter was obtained and that this indemnification obligation has
been terminated. Alternatively, Purchaser has requested that Seller either (i)
obtain an indemnity of Purchaser by Safeway in connection with such
contamination, or (ii) obtain Safeway's consent to an assignment of Safeway's
indemnity of Seller with respect to such contamination.
3. The Safeway fuel site lease contains, among other things, the following
environmental provisions: (i) remediation obligations of Safeway are limited to
releases caused by the tenant and only to the extent required by environmental
agencies, and (ii) Safeway's obligation to indemnity is limited to third party
claims. Purchaser requires that the lease be amended to (A) expand the indemnity
to include any contamination (regardless of whether it is in violation of
governmental requirements), and (B) to include contamination from any source
(rather than being limited to contamination caused by Safeway). Alternatively,
Purchaser has requested that it receive evidence that (i) Safeway maintains
sufficient insurance coverage in connection with environmental matters at the
fuel site and that Purchaser will be named as an additional insured on such
insurance policy, or (ii) that Purchaser shall purchase at Closing an
environmental insurance policy, naming Purchaser as the insured and providing
sufficient environmental insurance coverage in connection with the environmental
matters at the fuel site, and Seller shall credit the Purchase Price at Closing
the amount of the premium plus deductible for such environmental insurance, but
in no event shall such credit exceed $1,50,000.00. If the amount of the premium
plus deductible for such environmental insurance exceeds $150,000.00, and Seller
does not elect to credit such amount against the Purchase Price at Closing, then
the condition precedent set forth in this paragraph 3 shall be deemed to not be
satisfied, in which event Purchaser may terminate the Agreement upon prior
written notice delivered to Seller, and Title Company shall return the Xxxxxxx
Money to Purchaser and neither party shall have any further rights or
obligations under the Agreement except for the Surviving Obligations.
4. Safeway has a right of first offer over certain premises adjacent to its
store. Rent-A-Center currently occupies space within the area encumbered by the
right of first offer. Purchaser has requested evidence that Safeway was offered
the premises now occupied by Rent-A-Center and waived its right of first offer.
5. There are declarations of covenants, conditions and restrictions recorded
in Document No. 9407110538 and 950525059 of the Official Real Property Records
of Snohomish County, Washington
(collectively, the "DECLARATIONS"). These Declarations encumber the Property,
lots 2 and 3, and the "Finin Parcel" adjacent to the Property to the east along
43rd Avenue N.E. (Alder Avenue). Purchaser has requested that Seller obtain
estoppels from each of the owners of such parcels who are entitled to enforce
such Declarations.
6. The Survey indicates there are monitoring xxxxx within the Property (along
State Avenue). Purchaser has requested copies of the monitoring reports, if such
monitoring reports exist.
8. The terms and conditions of SECTION 4.10 of the Agreement (the
Citifinancial Holdback) remain outstanding.
9. Purchaser has requested receipt of a subordination, non-disturbance and
attornment agreement from Marysville Daycare and revised subordination,
non-disturbance and attornment agreements from Party City and Safeway, naming
Inland Western Marysville, L.L.C., a Delaware limited liability company, as the
landlord under the applicable lease.
13. Purchaser has requested a separate discussion with Seller's broker
regarding the Hollywood Video CPI rent escalation that was incorrectly stated in
the offering memorandum.
14. Purchaser has requested a separate discussion regarding Subs and More
vacating its premises at the Property,
SCHEDULE II
PARCEL A:
XXX 0 XX XXXXXXX XXXX XXXX/XXXXXX XX XXXXXX OF SAFEWAY PLAZA AT MARYSVILLE,
ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING XX. 0000000000, XX
XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF THE NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X.. IN
SNOHOMISH COUNTY, WASHINGTON.
PARCEL B:
XXX X XX XXXX XX XXXXXXXXXX XXX XXXX XXXXXXXXXX XX. XXX00-000, RECORDED UNDER
RECORDING XX. 0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING ALL OF XXX 0
XXX X XXXXXXX XX XXX 0 XX XXXXXXX SITE PLAN/RECORD OF SURVEY OF SAFEWAY PLAZA AT
MARYSVILLE, ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING XX.
0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF THE NORTHEAST
QUARTER OF THE NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST,
X.X., IN SNOHOMISH COUNTY, WASHINGTON.
PARCEL C:
XXX X XX XXXX XX XXXXXXXXXX XXX XXXX XXXXXXXXXX XX. XXX00-000, RECORDED UNDER
RECORDING XX. 0000000000, XX XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF
LOT 5 OF BINDING SITE PLAN/RECORD OF SURVEY OF SAFEWAY PLAZA AT MARYSVILLE,
ACCORDING TO SURVEY RECORDED MAY 25, 1995 UNDER RECORDING XX. 0000000000, XX
XXXXXXXXX XXXXXX, WASHINGTON, BEING A PORTION OF THE NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 28, TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X., IN
SNOHOMISH COUNTY, WASHINGTON; EXCEPT THAT PORTION THEREOF CONVEYED TO THE CITY
OF MARYSVILLE FOR RIGHT OF WAY BY DEED RECORDED UNDER RECORDING NO. 9602270122.
PARCEL Cl:
A NON-EXCLUSIVE EASEMENT APPURTENANT TO A PORTION OF PARCEL C FOR ROADWAYS,
WALKWAYS, INGRESS, EGRESS, UTILITIES AND SIGNAGE AS ESTABLISHED IN CROSS-ACCESS
AGREEMENT AND GRANT OF EASEMENTS AND RESTRICTIONS RECORDED UNDER RECORDING NO.
9407110538, AND AMENDED UNDER RECORDING NO. 9604180295 ON A PORTION OF LOT B OF
BOUNDARY LINE ADJUSTMENT RECORDED UNDER RECORDING NO. 9407115001, BEING A
PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 28,
TOWNSHIP 30 NORTH, RANGE 5 EAST, X.X., IN SNOHOMISH COUNTY, WASHINGTON.
PARCEL D:
A NON-EXCLUSIVE EASEMENT FOR ROADWAYS, WALKWAYS, INGRESS, EGRESS AND PARKING AS
ESTABLISHED BY DECLARATION RECORDED UNDER RECORDING NO. 9505250509 AND AMENDMENT
THERETO UNDER RECORDING NO. 9604180294 ON A PORTION OF LOTS 2 AND 3 OF BINDING
SITE PLAN RECORDED UNDER RECORDING NO. 9505255003.
PARCEL E:
A NON-EXCLUSIVE EASEMENT FOR STORM DRAIN AS CREATED BY INSTRUMENT RECORDED UNDER
RECORDING NO. 9407110536.
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT, (this "AMENDMENT") is
entered into as of June 18, 2004, by and between ITW MORTGAGE INVESTMENTS III,
INC., a Delaware corporation ("SELLER") and INLAND REAL ESTATE ACQUISITIONS,
INC. ("PURCHASER").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into that certain Purchase and
Sale Agreement dated effective May 6, 2004, as amended by letter dated June 2,
2004 (as amended, the "AGREEMENT"), providing for the purchase and sale of
certain real property known as "Safeway Plaza at Marysville," located in
Marysville, Snohomish County, Washington, as more particularly described in the
Agreement, and other real and personal property described in the Agreement; and
WHEREAS, Seller and Purchaser desire to mutually amend and modify the
Agreement as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants of the
parties hereto, and other good and valuable consideration to the parties hereto,
the receipt and sufficiency of which is hereby acknowledged and confessed by the
parties, and for the benefit which will inure to each party from the execution
of this Amendment, Seller and Purchaser hereby agree to amend and modify the
Agreement as follows, with the Amendment to be effective as of the date above.
1. Except as otherwise expressly set forth on SCHEDULE I attached hereto (the
items set forth on SCHEDULE I an hereby called the "OUTSTANDING ITEMS"), all
contingencies and conditions precedent to Purchaser's Closing obligations are
hereby deemed satisfied and Purchaser shall have no further right to terminate
the Agreement in connection therewith. Notwithstanding anything to the contrary
contained herein, Purchaser shall have until June 25, 2004, to satisfy itself
(in Purchaser's reasonable discretion) that the Outstanding Items have been
resolved. If the Outstanding Items are not resolved in Purchaser's reasonable
discretion on or before June 25, 2004. Purchaser may, upon prior written notice
to Seller, terminate the Agreement, in which event neither party shall have any
further rights or obligations thereunder except for the Surviving Obligations.
2. SECTION 6.1 of the Agreement is hereby amended to provide that the Closing
Date shall be June 25, 2004.
3. All of the capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the same meaning as assigned to such terms in the
Agreement.
4. Except as modified and amended as set forth in this Amendment, the
Agreement is hereby ratified and confirmed by Seller and Purchaser and shall
remain in full force and effect and enforceable in accordance with its terms.
5. This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all such counterparts shall constitute
one agreement. To facilitate execution of this Amendment, the parties may
execute and exchange by telephone facsimile counterparts of the signature pages.
SIGNATURE PAGES FOLLOWS
PURCHASER: INLAND REAL ESTATE ACQUISITIONS,
INC.,
an Illinois corporation
By: /s/ Xxxx Xxxxxxxx
-------------------
Name: Xxxx Xxxxxxxx
-------------
Title: Vice President
--------------
SELLER: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation, its
attorney-in-fact
By: /s/ [ILLEGIBLE]
------------------------
Name: [ILLEGIBLE]
-------------------
Title: VP
------------------
SCHEDULE I
1. The following tenants have exclusives at the Property: Party City,
Hollywood Video, Sun Factory, Alderwood Auto Glass, Rent A Center, and
Supercuts. Several of the aforementioned exclusives encumber lots 2 and 3 (the
Bank Parcel and KFC Parcel) in addition to the Property. Purchaser has requested
evidence that when lots 2 and 3 were sold, the grantors took subject to these
exclusives-so that the occupants of those two lots cannot change their use and
violate those tenants' exclusives, thereby putting Inland in default under those
leases.
2. The 1996 Drive Aisle Easement Agreement recorded as Document No. 9604180297
refers to possible groundwater/soils contamination of a portion of lot 5, and
contains an indemnification by the easement grantor (Safeway) of the easement
grantee if damages are incurred due to this contamination. The indemnification
continues until the grantor obtains a no further action letter from the
Washington Department of Ecology. Purchaser has requested evidence that this no
further action letter was obtained and that this indemnification obligation has
been terminated. Alternatively, Purchaser has requested that Seller either (i)
obtain an indemnity of Purchaser by Safeway in connection with such
contamination, or (ii) obtain Safeway's consent to an assignment of Safeway's
indemnity of Seller with respect to such contamination.
3. The Safeway fuel site lease contains, among other things, the following
environmental provisions: (i) remediation obligations of Safeway are limited to
releases caused by the tenant and only to the extent required by environmental
agencies, and (ii) Safeway's obligation to indemnify is limited to third party
claims. Purchaser requires that the lease be amended to (A) expand, the
indemnity to include any contamination (regardless of whether it is in violation
of governmental requirements), and (B) to include contamination from any source
(rather than being limited to contamination caused by Safeway). Alternatively,
Purchaser has requested that it receive evidence that Safeway maintains
sufficient insurance coverage in connection with environmental matters at the
fuel site and that Purchaser will be named as an additional insured on such
insurance policy.
4. Safeway has a right of first offer over certain premises adjacent to its
store. Rent-A-Center currently occupies space within the area encumbered by the
right of first offer. Purchaser has requested evidence that Safeway was offered
the premises now occupied by Rent-A-Center and waived its right of first offer.
5. There are declarations of covenants, conditions and restrictions recorded
in Document No. 9407110538 and 950525059 of the Official Real Property Records
of Snohomish County, Washington (collectively, the "DECLARATIONS"). These
Declarations encumber the Property, lots 2 and 3, end the "Finin Parcel"
adjacent to the Property to the east along 43rd Avenue N.E. (Alder Avenue).
Purchaser has requested that Seller obtain estoppels from each of the owners of
such parcels who are entitled to enforce such Declarations.
6. Items 16 and 17 of Schedule B, Section 2, of the Title Commitment reflect
items set forth on older surveys of the Property. Purchaser has requested that
these items be updated based on the new Survey of the Property previously
delivered to Purchaser.
7. The Survey indicates there are monitoring xxxxx within the Property (along
State Avenue). Purchaser has requested copies of the monitoring reports, if such
monitoring reports exist.
8. The terms and conditions of SECTION 4.10 of the Agreement (the
Citifinancial Holdback) remain outstanding.
9. Purchaser has requested copies of all warranties for the Property in
Seller's possession.
10. Purchaser has requested a copy of page 24 of the lease with Hollywood
Video.
11. Purchaser has requested a copy of EXHIBIT A-1 and EXHIBIT C to the
Safeway fuel site lease.
12. Purchaser has requested receipt of subordination, non-disturbance and
attornment agreements from Hollywood Video, Party City, Daycare and Safeway.
13. Purchaser has requested a separate discussion with Seller's broker
regarding the Hollywood Video CPI rent escalation that was incorrectly stated in
the offering memorandum.
14. Purchaser has requested a separate discussion regarding Subs and More
vacating its premises at the Property.
15. Purchaser has requested a copy of tenant sales for Hollywood Video. This
document does not exist.
16. Purchaser has requested copies of recent real estate tax bills and evidence
of payment of such taxes.
17. Purchaser has requested a Tenant Delinquency Report for the Property.
