Exhibit 10.307
PURCHASE AND SALE AGREEMENT
(SAFEWAY PLAZA AT MARYSVILLE)
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT") is made by and
between ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation
("SELLER"), and INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois
corporation ("PURCHASER").
In consideration of the mutual covenants and representations herein
contained, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1.
PURCHASE AND SALE
1.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, all of the Seller's assignable and
transferable right, title and interest in and to the following described
property (herein collectively called the "PROPERTY"):
(a) LAND. That certain tract of land (the "LAND") located in
the City of Marysville, Snohomish County, Washington, being more
particularly described on EXHIBIT A attached hereto and made a part hereof.
(b) EASEMENTS. All easements, if any, benefiting the Land or
the Improvements (as defined in SECTION 1.1(d) of this Agreement).
(c) RIGHTS AND APPURTENANCES. All rights and appurtenances
pertaining to the Land, including any right, title and interest of Seller
in and to adjacent streets, alleys or rights-of-way.
(d) IMPROVEMENTS. All improvements and related amenities known
as "Safeway Plaza at Marysville" (the "IMPROVEMENTS") in and on the Land,
and having an address of 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx.
(e) LEASES. All leases (the "LEASES") of space in the
Property, concession leases, and all tenant security deposits held by
Seller on the Closing Date (as defined in SECTION 6.1 of this Agreement).
(f) TANGIBLE PERSONAL PROPERTY. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes and other personal
property, if any, owned by Seller and located on or about the Land and the
Improvements (the "TANGIBLE PERSONAL PROPERTY").
(g) CONTRACTS. To the extent assignable without the consent of
third parties, the Contracts (as defined in SECTION 4.1(c) of this
Agreement).
(h) INTANGIBLE PROPERTY. To the extent assignable without the
consent of third parties, all intangible property (the "INTANGIBLE
PROPERTY"), if any, owned by Seller and pertaining to the Land, the
Improvements, or the Tangible Personal Property including, without
limitation, all
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logos, designs, trade names, if any, owned and used by Seller in connection
with the ownership and operation of the Property or any part thereof,
together with the goodwill of the business appurtenant thereto, including,
without limitation, the name "Safeway Plaza at Marysville", and any other
name or names by which the Property is commonly known, transferable utility
contracts, transferable telephone exchange numbers, plans and
specifications, engineering plans and studies, floor plans and landscape
plans.
(i) LICENSES. To the extent assignable without the consent of
third parties, all licenses, franchises, certifications, authorizations,
approvals and permits, if any, issued or approved by any governmental
authority and relating to Seller's operation, ownership and maintenance of
the Property or any part thereof ("LICENSES").
1.2 INDEPENDENT CONSIDERATION. Upon execution of this Agreement,
Purchaser has delivered to Seller, and Seller acknowledges receipt of, FIFTY AND
NO/100 DOLLARS ($50.00) (the "INDEPENDENT CONSIDERATION"), as consideration for
Purchaser's right to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. The Independent Consideration is in addition
to and independent of any other consideration or payment provided for in this
Agreement, is non-refundable and shall be retained by Seller notwithstanding any
other provision of this Agreement.
2.
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for the
Property shall be TWENTY-TWO MILLION SIXTEEN THOUSAND AND NO/100 DOLLARS
($22,016,000.00) and shall be paid in cash by Purchaser to Seller at the Closing
(as defined in SECTION 6.1 of this Agreement) by wire transfer in accordance
with wire transfer instructions to be provided by Seller.
3.
XXXXXXX MONEY
3.1 XXXXXXX MONEY. Purchaser shall deliver to the Title Company (as
defined in SECTION 6.1 of this Agreement) within two (2) business days after the
date a fully-executed copy of this Agreement is delivered to the Title Company
by Seller, by wire transfer in accordance with wire transfer instructions
provided by the Title Company, the amount of TWO HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($250,000.00) (which amount, together with all interest accrued
thereon, if any, is herein called the "XXXXXXX MONEY") to be invested by the
Title Company in an interest-bearing account if and in such manner as Purchaser
shall direct. Seller shall have the option of terminating this Agreement if the
full amount of Xxxxxxx Money is not delivered to the Title Company as prescribed
in this SECTION 3.1. Title Company shall deliver written acknowledgment to
Purchaser and Seller that the executed copy of this Agreement and the Xxxxxxx
Money have been received by and are being held by the Title Company pursuant to
the terms of this Agreement. If the sale of the Property is consummated under
this Agreement, the Xxxxxxx Money shall be paid to Seller and applied to the
payment of the Purchase Price at Closing. If Purchaser terminates this Agreement
in accordance with any right to terminate granted to Purchaser by the terms of
this Agreement, the Xxxxxxx Money shall be returned to Purchaser, and no party
hereto shall have any further obligations under this Agreement except for such
obligations which by their terms expressly survive the termination of this
Agreement (the "SURVIVING OBLIGATIONS"). Purchaser agrees to deliver to Seller
copies of all Reports (as defined in SECTION 4.2 of this Agreement) at the time
the notice to terminate this Agreement is given. The obligations to deliver the
Reports shall survive the termination of this Agreement.
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4.
CONDITIONS TO CLOSING
4.1 SELLER'S OBLIGATIONS. Seller shall deliver to Purchaser, within
ten (10) days after the Effective Date (as defined in SECTION 10.13 of this
Agreement) hereof, the following:
(a) TITLE COMMITMENT. Commitment for Owner's Policy of Tide
Insurance (the "TITLE COMMITMENT") with respect to the Property, issued by
the Title Company, and legible copies of any restrictive covenants,
easements, and other items listed as title exceptions therein, in the full
amount of the Purchase Price, covering title to the Land and Improvements
on or after the date hereof, showing Seller as owner of the Land and
Improvements in fee simple.
(b) SURVEY. Seller shall deliver to Purchaser Seller's
existing survey of the Property dated July 2, 2001, prepared by Xxxxxxx X.
Xxxxxx of Xxxx, Xxxx & Xxxxxxxxx, Inc., Job No. 2000021.04 (the "SURVEY").
Purchaser, at Purchaser's sole cost and expense, shall update the Survey
(and have it re-certified to include Seller, Purchaser, and Purchaser's
lender, if any, and such other parties as Purchaser shall designate) and
deliver a copy of such updated Survey to Seller and Title Company on or
before five (5) business days prior to the expiration of the Approval
Period (as defined in SECTION 4.1.1 of this Agreement).
(c) CONTRACTS. Copies of all contracts pertaining to the
Property, and not cancelable on thirty (30) days notice without penalty or
premium (the "CONTRACTS"), including, but not limited to, service
contracts, equipment leases and maintenance contracts, to the extent in the
possession of GE Capital Realty Group, Inc. ("GECRG").
(d) RENT ROLL. A rent roll describing all Leases of space in
the Improvements as of the last month GECRG has received such information
from the property manager of the Property.
Seller's failure to deliver to Purchaser items (a) through (d) above within
ten (10) days after the Effective Date shall not result in the extension of
the Approval Period, and Purchaser's sole remedy therefor shall be Purchaser's
right to terminate this Agreement by delivering written notice thereof to
Seller within twenty (20) days after the Effective Date hereof and receive a
return of the Xxxxxxx Money, in which event neither party shall have any
obligation hereunder except for the Surviving Obligations.
4.1.1. PURCHASER'S SATISFACTION. During the period commencing on
the Effective Date and ending on June 3, 2004 (the "APPROVAL PERIOD"), the
following matters shall be conditions precedent to Purchaser's obligations
under this Agreement:
(a) Purchaser's being satisfied in Purchaser's sole
discretion that the Property is suitable for Purchaser's intended uses;
and
(b) Purchaser's being satisfied, in Purchaser's sole
discretion, with the items listed above in SECTION 4.1(a) through
SECTION 4.1(d) above, including the information reflected therein.
If Purchaser is not satisfied in its sole discretion as to the suitability of
the Property for Purchaser's intended uses or any of the items listed above in
SECTION 4.1(a) through SECTION 4.1(d) above, Purchaser may give notice thereof
to Seller on or before the expiration of the Approval Period, whereupon this
Agreement shall terminate, and upon such termination, Purchaser shall be
entitled to
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the return of the Xxxxxxx Money, and neither party shall have any further
obligation hereunder except for the Surviving Obligations. If Purchaser fails
to give notice to Seller on or before the expiration of the Approval Period
that Purchaser is not satisfied with the suitability of the Property or any of
the items listed in SECTION 4.1(a) through SECTION 4.1(d) above, Purchaser
shall be deemed to be satisfied with such matters and the conditions precedent
in this SECTION 4.1.1 shall be deemed to be satisfied.
4.1.2 TITLE COMMITMENT AND SURVEY.
(a) In the event (i) the Survey (including any update of the
Survey) shows any easement, right-of-way, encroachment, conflict,
protrusion or other matter affecting the Property that is unacceptable to
Purchaser, or (ii) any exceptions appear in the Title Commitment that are
unacceptable to Purchaser, Purchaser shall, within ten (10) days after
receipt of the Survey, the Title Commitment and copies of all documents
referred to as exceptions in the Title Commitment, notify Seller in writing
of such facts and the reasons therefor ("PURCHASER'S OBJECTIONS"). Upon the
expiration of said ten (10) day period, except for Purchaser's Objections
if same are timely raised, Purchaser shall be deemed to have accepted the
form and substance of the Survey, all matters shown thereon, all exceptions
to the Title Commitment and other items shown thereon. If Purchaser shall
deliver Purchaser's Objections as aforesaid, Seller shall, within five (5)
days after receipt of the same, notify Purchaser in writing whether Seller
intends to attempt to either (a) cause any of Purchaser's Objections to be
removed, (b) have the Title Company issue a title endorsement insuring
against damage and loss caused by any of Purchaser's Objections (which
endorsement shall be subject to the review and approval of Purchaser), or
(c) take no further action regarding such Purchaser's Objections in which
event, subject to the immediately following sentence, such Purchaser's
Objections shall become a Permitted Encumbrances (as defined below). If
Seller elects, or is deemed to have elected, item (c) above with respect to
any or all of Purchaser's Objections, or if Seller is unable to remove
Purchaser's Objection or cause Title Company to issue an endorsement
notwithstanding Seller's agreement to attempt to cure such objection, then
Purchaser shall have the right, by delivering notice to Seller within the
earlier to occur of (i) the Closing, or (ii) ten (10) days after Seller
delivers (or is deemed to have delivered) written notice to Purchaser that
Seller intends to take no further action with respect to Purchaser's
Objections, to either (i) terminate this Agreement, in which event the
Xxxxxxx Money shall be immediately returned to Purchaser and neither party
shall have any obligations hereunder other than the Surviving Obligations,
or (ii) waive its objection and accept title to the Property subject to
such Purchaser's Objection(s). Seller's failure to notify Purchaser within
the aforementioned five (5) day period of which foregoing course of action
Seller elects to take with respect to Purchaser's Objections shall be
deemed to be Seller's election of item (c) above. Except as set forth below
in SECTION 4.1.3 of this Agreement, Seller shall have no obligations to
take any steps or bring any action or proceeding or otherwise to incur any
effort or expense whatsoever to eliminate or modify any of the Purchaser's
Objections.
(b) The term "PERMITTED ENCUMBRANCES" as used herein includes:
(i) any easement, right of way, encroachment, conflict, discrepancy,
overlapping of improvements, protrusion, lien, encumbrance, restriction,
condition, covenant, exception or other matter with respect to the Property
that is reflected or addressed on the Survey or the Title Commitment to
which Purchaser fails to timely object pursuant to Section 4.1.2(a) of this
Agreement; (ii) any Purchaser's Objection that remains uncured, for
whatever reason, at the earlier to occur of (A) Closing hereunder or (B)
ten (10) days after Seller notifies Purchaser that Seller is unwilling or
unable to cure or modify Purchaser's Objections to the reasonable
satisfaction of Purchaser; and (iii) the rights and interests of parties
claiming under the Leases described on the rent roll
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delivered to Purchaser pursuant to SECTION 4.1(d) and new leases executed
after the Effective Date pursuant to SECTION 9.1(b) of this Agreement.
4.1.3 LIMITATIONS OF SELLER'S OBLIGATIONS. Notwithstanding
anything contained herein to the contrary, Seller shall have no obligation to
take any steps, bring any action or proceeding or incur any effort or expense
whatsoever to eliminate, modify or cure any objection Purchaser may have
pursuant to SECTION 4.1.1, SECTION 4.1.2 or SECTION 4.2, except Seller at its
sole cost and expense on or before the Closing, shall remove of record (or bond
around in a manner reasonably satisfactory to Title Company) (a) any mortgage,
deed of trust, assignment of leases and rents (or the equivalent), or financing
statement executed by Seller, (b) any mechanic's lien for work contracted for by
Seller, and (c) any judgment against Seller for sum certain, U.S. tax lien or
real property tax lien (except for any taxes not yet delinquent) of record
affecting Seller's interest in the Land, which neither arises from nor was
caused by any work, services or labor performed by, or any materials furnished
to, or any other act or omission of, Purchaser or any of Purchaser's
representatives, the cost of which removal (as it applies only to the matters
described in (b) and (c) above) shall not in the aggregate exceed $15,000.
4.2 INSPECTION. At all times after the date of this Agreement,
Purchaser (and its consultants, contractors, attorneys, advisers, employees,
directors, officers, lenders and prospective lenders, appraisers, agents and
representatives (collectively, the "PURCHASER PARTIES")) shall have the right
(subject to applicable laws, recorded restrictions and the rights of tenants
under the Leases and except as except as expressly provided herein) to enter
upon the Property from time to time to perform and conduct any and all tests,
inspections, reviews, analyses, studies and appraisals relating to the Property
as Purchaser deems necessary or appropriate in connection with its potential
acquisition of the Property. Purchaser shall have the right to interview the
tenants of the Property only in the event Seller's Agent (as defined in SECTION
10.2 of this Agreement) is also present at such interview and Purchaser gives
Seller at least forty-eight (48) hours prior written notice of such interview.
Notwithstanding the foregoing, Purchaser must obtain Seller's prior written
approval of the scope and method of any environmental testing or investigation
(other than a non-intrusive Phase I environmental inspection) and any inspection
which would materially alter the physical condition of the Property, prior to
Purchaser's commencement of such inspections or testing. In any event, Seller
and its representatives, agents, and/or contractors shall have the right to be
present during any such testing, investigation, or inspection. If any test,
inspection, review or analysis conducted by Purchaser reveals any fact or
condition unacceptable to Purchaser, in its sole and absolute discretion,
Purchaser shall notify Seller in writing prior to the expiration of the Approval
Period of such unacceptable fact or condition and Seller shall have the right
(without any obligation to do so) to elect to correct same by the Closing Date,
by so notifying Purchaser of such election within two (2) days following
Purchaser's notification. If Seller elects to correct such unacceptable fact or
condition by the Closing Date, or elects but then fails to correct such
unacceptable fact or condition by the Closing Date, Purchaser may terminate this
Agreement in which event the Xxxxxxx Money will be returned to Purchaser, and
neither party shall have any further right or obligation hereunder other than
the Surviving Obligations. If Purchaser does not give such notification to
Seller in writing prior to the expiration of the Approval Period, the said
inspection of the Property shall be deemed satisfactory to Purchaser and
Purchaser shall be deemed to have agreed to assume all obligations from and
after the date of Closing with respect to the Leases and the Contracts. All
information provided by Seller to Purchaser or obtained by Purchaser from third
parties relating to the Property in the course of Purchaser's review, including,
without limitation, any environmental assessment or audit (collectively, the
"REPORTS") shall be treated as confidential information by Purchaser and
Purchaser shall instruct all of its employees, agents, representatives and
contractors as to the confidentiality of all such information. Purchaser shall
restore the Property to its condition existing immediately prior to Purchaser's
physical inspection thereof, and Purchaser shall be liable for all damage or
injury to any person or property resulting from, relating to or arising out of
any such physical inspection, whether occasioned by the acts
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of Purchaser or any of its employees, agents, representatives or contractors,
and Purchaser shall indemnify and hold harmless Seller and its agents,
employees, officers, directors, affiliates and asset managers from any liability
resulting therefrom. This indemnification by Purchaser shall survive the Closing
or the termination of this Agreement, as applicable.
4.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents
and warrants to Seller that (a) Purchaser is a corporation, duly organized and
in good standing under the laws of the State of Illinois and has the power to
enter into this Agreement and to execute and deliver this Agreement and to
perform all duties and obligations imposed upon it hereunder, and Purchaser has
obtained all necessary partnership and corporate authorizations required in
connection with the execution, delivery and performance contemplated by this
Agreement and has obtained the consent of all entities and parties necessary to
bind Purchaser to this Agreement, and (b) neither the execution nor the delivery
of this Agreement, nor the consummation of the purchase and sale contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Agreement conflict with or will result in the breach of any of the terms,
conditions, or provisions of any agreement or instrument to which Purchaser, or
any partner or related entity or affiliate of Purchaser, is a party or by which
Purchaser, any partner or related entity or affiliate of Purchaser, or any of
Purchaser's assets is bound, and (c) neither Purchaser nor any partner, related
entity or affiliate of Purchaser is in any way affiliated with Seller, GE
Capital Realty Group, Inc., General Electric Capital Corporation, General
Electric Realty Advisors, Inc., General Electric Company or any affiliate of
General Electric Company, and (d) that, with respect to each source of funds to
be used by it to purchase the Property (respectively, the "SOURCE"), at least
one of the following statements shall be accurate as of the Closing Date: (i)
the Source does not include the assets of (A) an "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title I of ERISA, or (B) a "plan" as
defined in Section 4975(a) of the Internal Revenue Code of 1986, as amended
("CODE"), or (ii) the Source includes the assets of (A) an "employee benefit
plan" as defined in Section 3(3) of ERISA or (B) a "plan" as defined in Section
4975 of the Code (each of which has been identified to the Seller in writing
pursuant to this SECTION 4.3 at least ten (10) business days prior to the
Closing Date), but the use of such Source to purchase the Property will not
result in a nonexempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code. Purchaser further represents, warrants and covenants
to Seller as follows:
4.3.1 COMPLIANCE WITH INTERNATIONAL TRADE CONTROL LAWS AND OFAC
REGULATIONS.
(a) Purchaser is not now nor shall it be at any time until
Closing an individual, corporation, partnership, joint venture,
association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment
trust, government or any agency or political subdivision thereof, or
any other form of entity (collectively, a "Person") with whom a United
States citizen, entity organized under the laws of the United States
or its territories or entity having its principal place of business
within the United States or any of its territories (collectively, a
"U.S. PERSON"), is prohibited from transacting business of the type
contemplated by this Agreement, whether such prohibition arises under
United States law, regulation, executive orders and lists published by
the Office of Foreign Assets Control, Department of the Treasury
("OFAC") (including those executive orders and lists published by OFAC
with respect to Persons that have been designated by executive order
or by the sanction regulations of OFAC as Persons with whom U.S.
Persons may not transact business or must limit their interactions to
types approved by OFAC ["SPECIALLY DESIGNATED NATIONALS AND BLOCKED
PERSONS"]) or otherwise,
(b) Neither Purchaser nor any Person who owns a direct
interest in Purchaser (collectively, a "PURCHASER PARTY") is now nor
shall be at any time until Closing a Person with
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whom a U.S. Person, including a United States Financial Institution as
defined in 31 U.S.C. 5312, as periodically amended ("FINANCIAL
INSTITUTION"), is prohibited from transacting business of the type
contemplated by this Agreement, whether such prohibition arises under
United States law, regulation, executive orders and lists published by
the OFAC (including those executive orders and lists published by OFAC
with respect to Specially Designated Nationals and Blocked Persons) or
otherwise.
4.3.2 PURCHASER'S FUNDS.
(a) Purchaser has taken, and shall continue to take until
Closing, such measures as are required by law to assure that the funds
used to pay to Seller the Purchase Price are derived (i) from
transactions that do not violate United States law nor, to the extent
such funds originate outside the United States, do not violate the
laws of the jurisdiction in which they originated; and (ii) from
permissible sources under United States law and to the extent such
funds originate outside the United States, under the laws of the
jurisdiction in which they originated.
(b) To the best of Purchaser's knowledge after making due
inquiry, neither Purchaser nor any Purchaser Party, nor any Person
providing funds to Purchaser (i) is under investigation by any
governmental authority for, or has been charged with, or convicted of,
money laundering, drug trafficking, terrorist related activities, any
crimes which in the United States would be predicate crimes to money
laundering, or any violation of any Anti Money Laundering Laws; (ii)
has been assessed civil or criminal penalties under any Anti-Money
Laundering Laws (as defined herein); or (iii) has had any of its funds
seized or forfeited in any action under any Anti Money Laundering
Laws. For purposes of this SUBSECTION (b), the term "ANTI-MONEY
LAUNDERING LAWS" shall mean laws, regulations and sanctions, state and
federal, criminal and civil, that (1) limit the use of and/or seek
the forfeiture of proceeds from illegal transactions; (2) limit
commercial transactions with designated countries or individuals
believed to be terrorists, narcotics dealers or otherwise engaged in
activities contrary to the interests of the United States; (3) require
identification and documentation of the parties with whom a Financial
Institution conducts business; or (4) are designed to disrupt the flow
of funds to terrorist organizations. Such laws, regulations and
sanctions shall be deemed to include the USA PATRIOT Act of 2001, Pub.
L. No. 107-56 (the "PATRIOT ACT"), the Bank Secrecy Act, 31 U.S.C,
Section 5311 et. seq., the Trading with the Enemy Act, 50 U.S.C, App.
Section 1 et. seq., the International Emergency Economic Powers Act,
50 U.S.C. Section 1701 et. seq., and the sanction regulations
promulgated pursuant thereto by the OFAC, as well as laws relating to
prevention and detection of money laundering in 18 U.S.C. Sections
1956 and 1957.
4.3.3 PURCHASER COMPLIANCE WITH PATRIOT ACT. Purchaser is in
compliance with any and all applicable provisions of the Patriot Act.
4.3.4 COOPERATION WITH SELLER. After the Closing Date, Purchaser
agrees to cooperate with Seller, and to cause each Purchaser Party to cooperate
with Seller, in providing such additional information and documentation on
Purchaser's and each Purchaser Party's legal or beneficial ownership, policies,
procedures and sources of funds as Seller deems necessary or prudent to enable
Seller to comply with Anti Money Laundering Laws as now in existence or
hereafter amended.
The Purchaser's representations and warranties set forth in this
SECTION 4.3 shall survive the Closing or termination of this Agreement.
Purchaser's representations and warranties contained herein must be true
and correct through the Closing Date, and Purchaser's failure to notify
Seller prior to the Closing Date of any inaccuracies shall be a default
by Purchaser under this Agreement.
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4.4 SELLER'S AFFIRMATIVE COVENANTS. Seller covenants to Purchaser
that:
4.4.1 Seller, at Seller's sole cost and expense, shall maintain
or cause to be maintained the Property in substantially its condition as of the
Effective Date, ordinary wear and tear and casualty and condemnation excepted.
4.4.2 From the Effective Date to the Closing Date or earlier
termination of this Agreement, Seller shall maintain or cause to be maintained
in full force and effect its existing or comparable insurance upon and in
respect to the Property.
4.4.3 From the Effective Date to the Closing Date or earlier
termination of this Agreement, Seller shall operate and manage the Property in
the same manner as it has been operated and managed heretofore.
4.5 SELLER'S REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.
Seller hereby represents and warrants to Purchaser on and as of the Effective
Date and on and as of the Closing Date as follows:
4.5.1 To Seller's knowledge (as defined in SECTION 4.6 of this
Agreement), except for Seller and the tenants under the Leases, there are no
persons in possession or occupancy of the Property or any part thereof, nor, to
Seller's knowledge, are there any persons who have any possessory rights in
respect to the Property or any part thereof. To Seller's knowledge, no person or
party has or has been granted any right or option to purchase or acquire the
Property or any portion thereof, except as disclosed in the public records or in
the tenant estoppels or in the Leases.
4.5.2 Seller has full capacity, right, power and authority to
execute, deliver and perform this Agreement and all documents to be executed by
Seller pursuant hereto, and all required action and approvals therefore have
been duly taken and obtained. The individuals signing this Agreement and all
other documents executed or to be executed pursuant hereto on behalf of Seller
are and shall be duly authorized to sign the same on Seller's behalf and to bind
Seller thereto. The transaction contemplated hereby will not result in a breach
of or constitute a default or permit acceleration of maturity under any
indenture, mortgage, deed of trust, loan agreement or other agreement to which
Seller or the Property is subject or by which Seller or the Property is bound.
Neither the entering into of this Agreement nor the conveyance of the Property
by Seller will constitute or result in a violation or breach by Seller of any
judgment, order, writ, injunction or decree issued against or imposed upon it,
or will result in a violation by Seller of any applicable law, order, rule or
regulation of any governmental authority. To Seller's knowledge, there is no
action, suit, litigation, proceeding or investigation pending in any court or
before or by any federal, district, county, or municipal department, commission,
board, bureau, agency or other governmental instrumentality, against Seller or
the Property or to Seller's knowledge, threatened against Seller or the Property
which (a) would prevent the conveyance of the Property by Seller, (b) would
become a cloud on the title to the Property or any portion thereof or which
questions the validity or enforceability of this Agreement or any action taken
by Seller pursuant to this Agreement, or (c) materially and adversely affects
the Property. To Seller's knowledge, no approval, consent, order or
authorization of, or designation, registration or filing (other than for
recording purposes) with any governmental authority is required in connection
with the due and valid execution and delivery of this Agreement by Seller or
Seller's performance under this Agreement. No bankruptcy, insolvency,
rearrangement or similar actions or proceedings, whether voluntary or
involuntary, are pending or threatened against Seller, nor has Seller any
intention of filing or commencing any such action or proceeding, and Seller has
not made a general assignment for the benefit of creditors.
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4.5.3 To Seller's knowledge, there are no claims, causes of
action or other litigation or proceedings pending or, to Seller's knowledge,
threatened in respect to the ownership or operation of the Property or any part
thereof (including, without limitation, disputes with tenants, mortgagees,
governmental authorities, utilities, contractors, adjoining land owners and
suppliers of goods or services) which would have a material, adverse effect on
Seller's ability to consummate the transactions contemplated by this Agreement.
4.5.4 To Seller's knowledge, Seller has not received any written
notice from a governmental authority of any violations of applicable law in
respect to the Property which have not been corrected.
4.5.5 To Seller's knowledge, there is no existing, pending or
contemplated, threatened or anticipated (i) condemnation of any part of the
Property, (ii) widening, change of grade or limitation on use of streets
abutting the Property, (iii) special tax or assessment to be levied against the
Property, (iv) change in the zoning classification of the Property, or (v)
change in the tax assessment of the Property.
4.5.6 To Seller's knowledge, there are no employment, employee
benefit or collective bargaining contracts affecting the Property, including,
without limitation, pension or profit sharing plans, agreements or trusts and
medical, dental, hospital, life or other insurance plans.
4.6 KNOWLEDGE. As used herein, the term "to Seller's knowledge" shall
mean only the current actual knowledge without inquiry" (as defined below) of
the following designee of Seller and GECRG: Xxxx Xxxxxx. As used herein, the
term "current actual knowledge without inquiry" shall mean only the actual,
current and not constructive, imputed or implied knowledge of such designee
without having made a review of the files or other inquiry. Anything herein to
the contrary notwithstanding, such designee shall not have any personal
liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of the Seller's representation herein being or becoming
untrue, inaccurate or incomplete in any respect. Notwithstanding anything to the
contrary contained herein, Purchaser and any of its successor and assigns, shall
be, and hereby are deemed to have knowledge (whether actual, constructive or
imputed), of all matters and information set forth in the Reports and/or
discovered by Purchaser as part of Purchaser's due diligence of the Property
pursuant to this Agreement.
4.7 SURVIVAL; LIABILITY. Any and all of the representations and
warranties of Seller as contained in this Agreement shall be true as of the
Effective Date and the Closing Date and shall merge with the Deed and shall be
void and of no further force or effect whatsoever from and after six (6) months
from the Closing Date. Consequently, Purchaser stipulates and agrees that from
and after such six (6) month period, it is entitled to and agrees to claim no
damages of any kind with respect to any alleged breach and/or violation of any
of such representations and/or warranties of Seller. Furthermore,
(a) if Purchaser becomes aware prior to Closing of any
inaccuracy of any of Seller's representations or warranties as set forth
herein, Purchaser shall give Seller written notice of any such inaccuracy,
and during the fifteen (15) day period after such notice, Seller shall have
the right, but not the obligation, to cure any such inaccuracy to the
satisfaction of Purchaser, and the Closing Date shall be extended for such
period. In the event Purchaser becomes aware of any inaccuracy of any of
Seller's representations and warranties prior to Closing and (a) Purchaser
fails to give Seller notice thereof as required hereby or (b) following
notice thereof, Seller fails or is unable to cure any such inaccuracy to
the reasonable satisfaction of Purchaser, Purchaser's sole remedy for any
such inaccuracy shall be to terminate this Agreement by delivering written
notice of such termination to Seller on or before the Closing Date, in
which event the Xxxxxxx Money
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will be returned to Purchaser and neither party shall have any obligation
hereunder, except the Surviving Obligations.
(b) if Purchaser becomes aware after Closing of any breach
and/or violation of any of Seller's representations and/or warranties set
forth herein, and Purchaser timely commences any action(s) to enforce any
alleged breach and/or violation of any of the representations and/or
warranties of Seller as set forth in this Agreement, then Purchaser's sole
remedy shall be to seek recovery of its actual damages (but not special,
consequential, speculative, punitive or other damages) and the amount of
such damages, in the aggregate (with respect to any and all such breaches
and/or violations) shall not exceed FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00), which such sum shall include all of Purchaser's attorneys'
fees, costs, expert witness fees and court costs.
4.8 TENANT ESTOPPEL CERTIFICATES. Seller agrees to submit or cause
its property manager to submit within ten (10) days after the Effective Date
hereof to each tenant or lessee under a Lease a request for such tenant or
lessee to execute and deliver a tenant estoppel certificate to Purchaser with
respect to its Lease in the form attached hereto as EXHIBIT D. It shall be a
condition precedent to Purchaser's Closing obligations that Purchaser receive,
not less than ten (10) days prior to the Closing Date, tenant estoppel
certificates from (i) Safeway and Party City (collectively, the "MAJOR
TENANTS"), plus (ii) such number of other tenants which, together with the Major
Tenants, collectively occupy at least eighty-five percent (85%) of the leased
square footage at the Property (collectively, the "REQUIRED TENANT ESTOPPELS")
on the form of the estoppel certificates attached as EXHIBIT D or on the form
required by the applicable lease agreement or on the form promulgated by the
tenant. If Purchaser does not receive the Required Tenant Estoppels as of the
Closing Date, Seller may extend the Closing Date up to fifteen (15) days to
allow Seller to obtain the Required Tenant Estoppels. If Purchaser does not
receive the Required Tenant Estoppels on or before the expiration of such
fifteen (15) day period, if applicable, Purchaser may either (i) terminate this
Agreement in writing delivered to Seller on or before the Closing Date, as
extended by Seller if applicable, in which event the Xxxxxxx Money shall be
returned to Purchaser and neither party shall have any further obligations
hereunder other than the Surviving Obligations, or (ii) waive the foregoing
condition precedent and proceed to Closing. A Required Tenant Estoppel will not
be deemed acceptable hereunder for purposes of satisfying the condition
specified herein if (i) it discloses a default by Seller or sets forth material
adverse matters which are in direct conflict with the applicable Lease and rent
roll delivered to Purchaser pursuant to SECTION 4.1(d) of this Agreement (not
including minor square footage discrepancies or commencement date discrepancies
for leases that have commenced), and (ii) the same is objected to by Purchaser
in writing within the sooner to occur of the Closing Date or five (5) days after
Purchaser's receipt thereof, and (iii) such matters so objected to are not cured
or satisfied by Seller on or before the Closing Date. Notwithstanding anything
to the contrary contained herein, Seller hereby discloses to Purchaser that
Play-It-Again Sports is delinquent in its payment of rent for approximately six
(6) months, and such delinquency is approximately in the amount of $33,324.72.
In connection therewith, Purchaser shall not have the right to object to any
tenant estoppel certificate for Play-It-Again Sports that discloses such rent
delinquency. If Purchaser shall not have terminated this Agreement under this
SECTION 4.8 prior to the Closing Date, as may have been extended pursuant
hereto, Purchaser shall be deemed for all purposes to be satisfied with the
responses to Seller's requests for tenant estoppel certificates and the form and
substance of each tenant estoppel certificate and shall have no further right to
terminate this Agreement based on the response or lack thereof with respect to
the tenant estoppel certificates. Notwithstanding anything to the contrary
contained herein, Seller agrees to submit or cause its property manager to
submit within ten (10) days after the Effective Date hereof to each guarantor
under a Lease a request for such guarantor to execute and deliver a guarantor
estoppel certificate to Purchaser with respect to the Lease in the form attached
hereto as EXHIBIT D-1. Seller shall have no obligation or responsibility with
respect to any guarantor estoppel certificate other
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than to submit or cause to be submitted such certificate to such guarantor and
request the execution and return thereof.
4.9 DEFECTIVE CONDITION EXTENSION; TERMINATION. The obligations of
Seller hereunder are subject to and contingent upon the following:
In the event that subsequent to the execution of this Agreement
Seller obtains knowledge of, or Purchaser's inspection of the Property
reveals, the presence of any Hazardous Materials (as defined in SECTION 5.2
of this Agreement) or the violation or potential violation of any
Environmental Requirements (as defined in SECTION 5.3 of this Agreement) (a
"DEFECTIVE CONDITION"), which Seller, in its sole judgment, determines
could constitute a potential liability to Seller after the Closing or
should be remedied prior to the sale of the Property, Seller shall have the
right upon written notice to Purchaser on or before the scheduled Closing
Date to terminate this Agreement upon written notice to Purchaser, in which
event the Xxxxxxx Money shall be refunded to Purchaser and neither party
shall have any further right or obligation hereunder other than the
Surviving Obligations. The terms of this SECTION 4.9 are solely for the
benefit of Seller and Purchaser shall have no additional right or remedy
hereunder as a result of the exercise by Seller of its rights under this
SECTION 4.9.
4.10 HOLDBACK ESCROW AGREEMENT. In the event that a new lease with
Citifinancial for certain space at the Property (the "PREMISES") is not executed
by Seller and Citifinancial on or before the Closing Date, then, at Closing,
Purchaser shall hold back from the Purchase Price an amount equal to $47,625-00,
which is comprised of (i) annual base rent of $17.50 per square foot of the
Premises over a twelve (12) month period; (ii) annual triple net charges of
$4.25 per square foot of the Premises over a twelve (12) month period; and (iii)
$ 10.00 per square foot of the Premises for tenant improvement costs and leasing
commissions associated with executing a new lease with Tenant or replacement
tenant (collectively, the "HOLDBACK"). The Holdback shall be held by Title
Company and shall be disbursed to Purchaser and/or Seller strictly in accordance
with the terms and conditions of the Holdback Escrow Agreement attached hereto
as EXHIBIT H (the "HOLDBACK ESCROW AGREEMENT"). In no event shall the term of
the Holdback Escrow Agreement extend beyond twelve (12) months following
Closing. It shall be a condition precedent to Seller's Closing obligations that
Purchaser execute the Holdback Escrow Agreement on or before Closing, if
applicable.
5.
NO REPRESENTATIONS OR WARRANTIES BY SELLER;
ACCEPTANCE OF PROPERTY
5.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PURCHASER
ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL
WARRANTY OF TITLE AS SET OUT IN THE DEED, AS DEFINED BELOW), PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER OR ANY TENANT MAY CONDUCT
THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
OR
Page 11
BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF
THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H)
COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE
PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW) OR (I) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO
PERSON ACTING ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF
OF PURCHASER ACKNOWLEDGES THAT NO PERSON HAS MADE, ANY REPRESENTATION,
AGREEMENT, STATEMENT, WARRANTY, GUARANTY OR PROMISE REGARDING THE PROPERTY OR
THE TRANSACTION CONTEMPLATED HEREIN; AND NO SUCH REPRESENTATION, WARRANTY,
AGREEMENT, GUARANTY, STATEMENT OR PROMISE IF ANY, MADE BY ANY PERSON ACTING ON
BEHALF OF SELLER SHALL BE VALID OR BINDING UPON SELLER UNLESS EXPRESSLY SET
FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND ON THE EXPRESS REPRESENTATIONS CONTAINED
HEREIN AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER AND
AGREES TO ACCEPT THE PROPERTY AT THE CLOSING AND WAIVE ALL OBJECTIONS OR CLAIMS
AGAINST SELLER (INCLUDING, BUT NOT LIMITED TO, ANY RIGHT OR CLAIM OF
CONTRIBUTION) ARISING FROM OR RELATED TO THE PROPERTY OR TO ANY HAZARDOUS
MATERIALS ON THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED
FROM A VARIETY OF SOURCES AND EXCEPT FOR SUCH INFORMATION WHICH IS "CERTIFIED"
BY SELLER, THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. UNLESS EXPRESSLY
STATED HEREIN, SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENT, REPRESENTATION OR INFORMATION PERTAINING TO THE PROPERTY, OR
THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, CONTRACTOR, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY PROVIDED
HEREIN, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE
PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
THE PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE CLOSING OR ANY TERMINATION
HEREOF.
5.2 HAZARDOUS MATERIALS. "Hazardous Materials" shall mean any
substance which is or contains (i) any "hazardous substance" as now or hereafter
defined in Section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 ET
SEQ.) ("CERCLA") or any regulations promulgated under CERCLA; (ii) any
"hazardous waste" as now or hereafter defined in the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 ET SEQ.) ("RCRA") or regulations
promulgated under RCRA; (iii) any substance regulated by the Toxic Substances
Control Act (15 U.S.C. Section 2601 ET SEQ.); (iv) gasoline, diesel fuel, or
other petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in
any form, whether friable or non-friable; (vi) polychlorinated
Page 12
biphenyls; (vii) radon gas; and (viii) any additional substances or materials
which are now or hereafter classified or considered to be hazardous or toxic
under Environmental Requirements (as defined in SECTION 5.3 of this Agreement)
or the common law, or any other applicable laws relating to the Property.
Hazardous Materials shall include, without limitation, any substance, the
presence of which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent property;
or (C) which, if it emanated or migrated from the Property, could constitute a
trespass.
5.3 ENVIRONMENTAL REQUIREMENTS. "Environmental Requirements" shall
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial toxic or hazardous substances
or waste or Hazardous Materials into the environment (including, without
limitation, ambient air, surface water, ground water or land or soil).
6.
CLOSING
6.1 CLOSING. The Closing (the "Closing") shall be held at the offices
of First American Title Insurance Company (the "TITLE COMPANY") at 00 X. XxXxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, at a
date designated by Seller and Purchaser on or before June 7, 2004 (the "CLOSING
DATE") unless the parties mutually agree in writing upon another place, time or
date.
6.2 POSSESSION. Possession of the Property shall be delivered to
Purchaser at the Closing.
6.3 PRORATION. All rents, other amounts payable by the tenants under
the Leases, income, utilities and all other operating expenses with respect to
the Property for the month in which the Closing occurs, and real estate and
personal property taxes and other assessments with respect to the Property for
the year in which the Closing occurs, shall be prorated shall be prorated on a
per diem basis as of 11:59 p.m. on the date prior to the Closing Date (the
"PRORATION DATE"). Seller and Purchaser pursuant to RCW 60.80.020(1), hereby
waive the services of Title Company in administering the disbursement of closing
funds necessary to satisfy any unpaid utility charges. All utility xxxxxxxx
shall be prorated as of the Proration Date and Seller will attempt to have
utility meters read as of that date.
(a) If the Closing shall occur before rents and all other
amounts payable by the tenants under the Leases and all other income from
the Property have actually been paid for the month in which the Closing
occurs, the apportionment of such rents and other amounts and other income
shall be upon the basis of such rents, other amounts and other income
payable under the Leases in the month of Closing, with Purchaser receiving
a credit at Closing in an amount equal to the product of (i) the per diem
amount of such rent and other charges payable in the month of Closing, and
(ii) the number of days from and including the Closing Date until the last
day of the month in which the Closing occurs. Rents and all other charges
payable by the tenants under the Leases for periods prior to the month of
Closing which are in arrears as of the Proration Date shall not be
prorated. Subsequent to the Closing, if any rents and other charges are
actually received by Purchaser and such delinquent rents and other
delinquent charges are for any periods preceding the month of Closing, all
such amounts shall first be applied to post-closing rents and
Page 13
charges due to Purchaser which are past due and the balance shall be
immediately paid by Purchaser to Seller. Subsequent to Closing, if any
rents and other charges for the month of Closing are actually received by
Purchaser, such amounts shall immediately be paid to Seller. Purchaser
shall make a good faith effort and attempt to collect any such rents and
other amounts and other income not apportioned at the Closing for the
benefit of Seller, however, Purchaser shall not be required to expend any
funds or institute any litigation in its collection efforts. Nothing in
this SECTION 6.3(a) shall restrict Seller's right to collect delinquent
rents directly from a tenant by any legal means; provided, however, Seller
shall have no right to terminate a tenant's lease or otherwise commence
eviction proceedings against such tenant.
(b) Certain of the Leases contain tenant obligations to pay
for taxes, common area expenses, operating expenses and/or additional
charges of any other nature relating to the Property and/or certain
portions thereof (collectively, the "CHARGES"). To the extent that tenants
are obligated to reimburse Seller for Charges monthly, and such
reimbursement is actually received by Seller and is for the month in which
Closing occurs, then any of the Charges actually received by Seller from
such tenants for Charges for the month in which Closing occurs shall be
pro-rated between Seller and Purchaser, on a per diem basis, based on
Charges actually received by Seller for the month of Closing.
(c) Purchaser and Seller acknowledge and agree that Charges
which Seller has heretofore collected from tenants at the Property
(collectively, the "TENANTS") for calendar year 2004 from January 1, 2004
through and including the Closing Date ("SELLER'S RECONCILIATION PERIOD"),
have not yet been reconciled with the Tenants to the extent Seller's
recovery of such expenses from the Tenants for such period exceeded or was
less than the actual amount of such expenses for such period (the "TENANT
RECONCILIATION"). In connection with the Tenant Reconciliation, the parties
agree that (i) within a reasonable time after Closing, Seller shall deliver
to Purchaser the data reasonably supporting the Charges Seller collected
from the Tenants during Seller's Reconciliation Period and the amount of
Charges actually paid by Seller during Seller's Reconciliation Period, and
(ii) at the end of calendar year 2004, Purchaser shall be responsible for
preparing the final Tenant Reconciliation (subject to Seller's approval
with respect to Seller's Reconciliation Period) strictly in accordance with
the terms and conditions of the applicable Leases and, to the extent
applicable, either reimbursing or billing Tenants accordingly. If the
Tenant Reconciliation for Seller's Reconciliation Period shows that amounts
collected during Seller's Reconciliation Period were more than the amount
of Charges actually paid by Seller during Seller's Reconciliation Period,
then Seller shall reimburse such Tenant to the extent of any over-payment
of such Charges actually received by Seller for Seller's Reconciliation
Period, except that if Purchaser requests that Seller pay such
reimbursements to Purchaser, then Purchaser shall indemnify, defend and
hold harmless Seller for Purchaser's failure to pay such reimbursements to
the Tenants. If it is determined that Tenant has underpaid to Seller any
portion of the Charges for Seller's Reconciliation Period, Purchaser shall
make good faith attempts to collect the amount of any under-payment of such
Charges from such Tenant, and shall, upon receipt, immediately deliver such
amount to Seller. The agreements of Seller and Purchaser set forth herein
shall survive the Closing.
(d) Notwithstanding anything to the contrary contained herein,
(i) Purchaser shall have no rights or claims with respect to the tenant
payments of operating expenses for calendar year 2003 and prior years and
(ii) Purchaser shall have no rights or claims with respect to amounts owed
by tenants to Seller for reimbursement of certain capital expenditures made
by Seller to the Property prior to the Effective Date, and with respect to
items (i) and (ii) above, Seller shall be entitled to collect such amounts
directly from tenants in accordance with this
Page 14
SECTION 6.3 and such amounts shall not be prorated and shall not be subject
to the priority of payment set forth in SECTION 6.3(a) above.
Notwithstanding anything to the contrary contained herein, with respect to
tenant payments for operating expenses for calendar year 2003, if Seller's
reconciliation thereof determines that tenants overpaid to Seller such
operating expenses, Seller shall be responsible for and shall pay to such
tenants directly the amount of any such overpayment (whether before or
after Closing). Seller shall endeavor in good faith to pay to such tenants
directly the amount of any such overpayment on or before the Closing Date.
(e) If the Closing shall occur before the tax rate or the
assessed valuation of the Property is fixed for the then current year, the
apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation. Subsequent to the
Closing, when the tax rate and the assessed valuation of the Property is
fixed for the year in which the Closing occurs, the parties agree to adjust
the proration of taxes and, if necessary, to refund or repay such sums as
shall be necessary to effect such adjustment. If the Property is not
assessed as a separate parcel for tax or assessment purposes, then such
taxes and assessments attributable to the Property shall be determined by
Purchaser and Seller. If, as of the Closing, the Property is not being
treated as a separate tax parcel, then within thirty (30) days after the
Closing, Purchaser shall, at its sole cost and expense, have the Property
assessed separately for tax and assessment purposes. In the event the
Property has been assessed for property tax purposes at such rates as could
result in "roll-back" taxes upon changes in land usage or ownership of the
Property, Purchaser agrees to pay all such taxes and indemnify and save
Seller harmless from and against any and all claims and liabilities for
such taxes.
(f) To the extent utility meters are not read, if the Closing
shall occur before the actual amount of utilities and all other operating
expenses with respect to the Property for the month in which the Closing
occurs are determined, the apportionment of such utilities and other
operating expenses shall be upon the basis of an estimate by Seller of such
utilities and other operating expenses for such month. Subsequent to the
Closing, when the actual amount of such utilities and other operating
expenses with respect to the Property for the month in which the Closing
occurs are determined, the parties agree to adjust the proration of such
utilities and other operating expenses and, if necessary, to refund or
repay such sums as shall be necessary to effect such adjustment.
(g) Payments under any Contracts for the month in which
Closing occurs which are assigned to Purchaser shall be prorated as of the
Proration Date.
(h) The amount of all refundable rental security deposits in
effect as of the Closing Date, including all interest charges required by
law or other agreement to be paid thereon, shall be paid by Seller to
Purchaser to the extent not previously applied.
The agreements of Seller and Purchaser set forth in this SECTION 6.3 shall
survive the Closing.
6.4 CLOSING COSTS. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date one-half (1/2) of any escrow fees
(excluding escrow fees associated with the Holdback Escrow Agreement) and other
customary charges of the Title Company, the excise tax, the title insurance
premium for the base Owner's Policy (as defined in SECTION 6.5(a)), and
Purchaser shall pay, on the Closing Date, the cost of any endorsements or
additional coverage over the base Owner's Policy, the cost of the updated
Survey, all recording costs, all escrow fees associated with the Holdback Escrow
Agreement and one-half (1/2) of all other escrow fees and other customary
charges of the Title Company. Except as otherwise provided herein, each party
shall pay its own attorneys' fees.
Page 15
6.5 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, or at such
other time as indicated below, Seller shall deliver to Purchaser the following:
(a) TITLE POLICY. Within a reasonable period of time following
Closing, an Owner's Policy of Title Insurance in ALTA standard form (the
"OWNER'S POLICY"), naming Purchaser as insured, in the amount of the
Purchase Price, insuring that Purchaser owns good and marketable fee simple
title to the Property, subject only to the Permitted Encumbrances.
Purchaser, at Purchaser's sole expense, may elect to obtain additional
coverage or endorsements over the base Owner's Policy, but obtaining such
additional coverage or endorsements will not be a condition precedent to
Purchaser's Closing obligations pursuant to this Agreement.
(b) EVIDENCE OF AUTHORITY. Such organizational and authorizing
documents of Seller as shall be reasonably required by the Title Company to
evidence Seller's authority to consummate the transactions contemplated by
this Agreement.
(c) FOREIGN PERSON. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in the federal Foreign
Investment in Real Property Tax Act of 1980, and the 1984 Tax Reform Act,
as amended.
(d) LEASES. The originals of all of the Leases and all
security deposits, if any, in the possession of GECRG on the Closing Date.
Seller shall have no liability to Purchaser for any tenant security deposit
not actually paid to Seller.
(e) CONTRACTS. The originals of all of the Contracts, if any,
in the possession of GECRG.
6.6 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing, Purchaser
shall deliver to Seller the following:
(a) PURCHASE PRICE. The Purchase Price by wire transfer of
immediately available funds.
(b) POST EFFECTIVE DATE LEASE EXPENSES. Immediately available
funds in an amount equal to the costs and expenses incurred and paid by
Seller under (i) any new lease of space in the Improvements pursuant to
SECTION 9.1(b) of this Agreement, and (ii) any extension, renewal or
modification of any lease of space in the Improvements pursuant to SECTION
9.1(b) of this Agreement executed after the Effective Date. Said costs and
expenses shall include, but not be limited to, costs incurred and paid by
Seller for tenant improvements, leasing commissions, capital improvements,
and reasonable attorney's fees (provided that Purchaser shall only be
obligated to reimburse Seller up to $1,500.00 for such reasonable
attorneys' fees).
(c) EVIDENCE OF AUTHORITY. Such organizational and authorizing
documents of Purchaser as shall be reasonably required by the Title Company
to evidence Purchaser's authority to consummate the transactions
contemplated by this Agreement,
(d) TAXPAYER I.D. CERTIFICATE. Taxpayer I.D. Certificate, in
the form attached to this Agreement as EXHIBIT E.
6.7 DOCUMENTS TO BE EXECUTED BY SELLER AND PURCHASER. At the Closing,
Seller and Purchaser shall also execute and deliver the following:
Page 16
(a) DEED. Statutory Warranty Deed (the "DEED") conveying the
Land and the Improvements to Purchaser in the form attached to this
Agreement as EXHIBIT B.
(b) TENANT NOTICES. Signed statements or notices to all
tenants of the Property, in the form attached to this Agreement as
EXHIBIT G, notifying such tenants that the Property has been transferred to
Purchaser and that Purchaser is responsible for security deposits
(specifying the amounts of such deposits).
(c) XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF PERSONAL
PROPERTY, SERVICE CONTRACTS, WARRANTIES AND LEASES. Xxxx of Sale,
Assignment and Assumption of Personal Property, Service Contracts,
Warranties and Leases (the "ASSIGNMENT") in the form attached to this
Agreement as EXHIBIT C.
(d) HOLDBACK ESCROW AGREEMENT. If applicable, the Holdback
Escrow Agreement in the form attached to this Agreement as EXHIBIT H.
7.
RISK OF LOSS
7.1 CONDEMNATION. If, prior to the Closing, action is initiated to
take any of the Property by eminent domain proceedings or by deed in lieu
thereof, Purchaser may either at or prior to Closing (a) terminate this
Agreement, in which event the Xxxxxxx Money shall be refunded to Purchaser, and
neither party shall have any further right or obligation hereunder other than
the Surviving Obligations, or (b) consummate the Closing, in which latter event
all of Seller's assignable right, title and interest in and to the award of the
condemning authority shall be assigned to Purchaser at the Closing and there
shall be no reduction in the Purchase Price.
7.2 CASUALTY. Except as provided in SECTIONS 4.2 and 5.1 of this
Agreement, Seller assumes all risks and liability for damage to or injury
occurring to the Property by fire, storm, accident, or any other casualty or
cause until the Closing has been consummated. If the Property, or any part
thereof, suffers any damage in excess of $250,000.00 prior to the Closing from
fire or other casualty, which Seller, at its sole option, does not elect to
repair, or if as a direct result of the fire or other casualty event Safeway or
Party City has an immediate right to terminate its Lease, Purchaser may either
at or prior to Closing (a) terminate this Agreement, in which event the Xxxxxxx
Money shall be refunded to Purchaser (subject to Purchaser's delivery of the
Reports as required by SECTION 3.1 of this Agreement), and neither party shall
have any further right or obligation hereunder other than the Surviving
Obligations, or (b) consummate the Closing, in which latter event all of
Seller's right, title and interest in and to the proceeds of any insurance
covering such damage (less an amount equal to any expenses and costs incurred by
Seller to repair or restore the Property and any portion of such proceeds paid
or to be paid on account of the loss of rents or other income from the Property
for the period prior to and including the Closing Date, all of which shall be
payable to Seller), to the extent the amount of such insurance does not exceed
the Purchase Price, shall be assigned to Purchaser at the Closing. If the
Property, or any part thereof, suffers any damage less than $250,000.00 prior to
the Closing, and such damage does not give Safeway or Party City the right to
terminate its Lease, Purchaser agrees that it will consummate the Closing and
accept the assignment of the proceeds of any insurance covering such damage plus
an amount equal to Seller's deductible under its insurance policy and there
shall be no reduction in the Purchase Price.
Page 17
8.
DEFAULT
8.1 BREACH BY SELLER. In the event that Seller shall fail to
consummate this Agreement for any reason, except Purchaser's default or a
termination of this Agreement by Purchaser or Seller pursuant to a right to do
so under the provisions hereof, Purchaser, as its sole and exclusive remedy may
either (a) terminate this Agreement and receive a refund of the Xxxxxxx Money,
and neither party shall have any further right or obligation hereunder other
than the Surviving Obligations, or (b) pursue the remedy of specific performance
of Seller's obligations under this Agreement; provided, however, that (i)
Purchaser shall only be entitled to such remedy if (A) any such suit for
specific performance is filed within ninety (90) days after Purchaser becomes
aware of the default by Seller, (B) Purchaser is not in default under this
Agreement, (C) Purchaser is ready, willing and able to tender the Purchase Price
to the Title Company in immediately available funds, and (D) Purchaser has
furnished ten (10) days prior written notice to Seller of its intent and
election to seek specific enforcement of this Agreement; and (ii)
notwithstanding anything to the contrary contained herein, Seller shall not be
obligated to expend any sums to cure any defaults under this Agreement and if
Purchaser seeks specific performance under this Agreement, Purchaser agrees to
accept the Property in its "WHERE IS, AS IS" condition. Purchaser hereby agrees
that prior to its exercise of any rights or remedies as a result of any defaults
by Seller, Purchaser will first deliver written notice of said default to
Seller, and if Seller so elects, Seller shall have the opportunity, but not the
obligation, to cure such default within ten (10) days after Seller's receipt of
such notice. In no event whatsoever shall Purchaser file any instrument of
record against title to the Property; provided, however, Purchaser may file a
lis pendens of this Agreement simultaneously with its filing of a suit for
specific performance pursuant to this SECTION 8.1. Notwithstanding any of the
foregoing to the contrary, in no event whatsoever shall Purchaser have the right
to seek money damages of any kind as a result of any default by Seller under any
of the terms of this Agreement, except in the event Purchaser prevails in its
suit for specific performance pursuant to this SECTION 8.1, Purchaser shall also
be entitled to pursue Seller for Purchaser's reasonable attorneys' fees and
court costs incurred and directly relating to such lawsuit. In no event shall
Seller be liable to Purchaser for any punitive, speculative or consequential
damages.
8.2 BREACH BY PURCHASER.
(a) If Purchaser fails to complete this purchase without legal
excuse, and regardless of whether Seller incurs any actual damages, Seller
shall have the right to forfeit and retain the Deposit as its sole and
exclusive remedy; provided, however, in any event in which the Deposit
exceeds five percent (5%) of the total purchase price under this Agreement
or any amendment hereto, the difference represented by such excess shall be
returned to Purchaser upon Seller's exercise of such remedy. The parties
acknowledge that this provision is intended to satisfy the requirements of
RCW 64.04.005(l)(a); is not to be construed to be a limitation upon any
right or remedy available to Seller in the event of any other default or
indemnity on the part of Purchaser under this or any other agreement; and
does not affect Seller's right to recover attorneys' fees in any action
commenced with respect to this Agreement.
(b) Notwithstanding the provisions of SECTION 8.2(a) above,
the foregoing shall not in any way limit, affect or impair any of
Purchaser's indemnities as provided in SECTIONS 4.2, 5.1, 6.3(b) OR 10.2 of
this Agreement.
Page 18
9.
FUTURE OPERATIONS
9.1 FUTURE OPERATIONS.
(a) From the date of this Agreement until the Closing or
earlier termination of this Agreement:
(i) Seller will keep and maintain the Property in
substantially its condition as of the date of this
Agreement;
(ii) Seller will perform all of Seller's obligations
under the Contracts. Seller will not, without the
prior written consent of Purchaser, modify, enter
into, or renew any Contract which cannot be
cancelled upon thirty (30) days prior written
notice.
(b) From the Effective Date until the Closing or earlier
termination of this Agreement, Seller will not lease any space in the
Improvements except upon the prior written approval of Purchaser (such
approval not to be unreasonably withheld or delayed); provided, however,
this limitation upon Seller shall not apply with respect to
non-discretionary lease renewals, lease extensions, rights of first refusal
or offer, or options pursuant to rights granted under leases existing as of
the Effective Date. For purposes of this SECTION 9.1(b) it shall be
unreasonable for Purchaser to withhold its approval of any new lease so
long as such new lease satisfies the applicable minimum leasing parameters
set forth on EXHIBIT I attached hereto. All costs and expenses incurred and
paid by Seller under (i) any new lease entered into after the Effective
Date and (ii) any extension, renewal or modification of an existing lease
entered into after the Effective Date, shall be paid by Purchaser in
accordance with SECTION 6.6(b) of this Agreement. Said costs and expenses
shall include, but not be limited to, costs incurred and paid by Seller for
tenant improvements, leasing commissions, capital improvements, and
reasonable attorney's fees (provided that Purchaser shall only be obligated
to reimburse Seller up to $1,500.00 for such reasonable attorneys' fees).
If Purchaser does not deliver written notice to Seller of its approval or
disapproval of any matters for which Seller seeks Purchaser's approval as
set forth above within five (5) business days after Purchaser's receipt of
Seller's request for such approval, Purchaser shall be deemed to have
approved such matters and to have agreed to assume all obligations with
respect thereto.
10.
MISCELLANEOUS
10.1 NOTICES. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective either: (a) on the date personally delivered to the address
below, as evidenced by written receipt therefore, whether or not actually
received by the person to whom addressed; (b) on the third (3rd) business day
after being sent, by certified or registered mail, return receipt requested,
addressed to the intended recipient at the address specified below; (c) on the
first (1st) business day after being deposited into the custody of a nationally
recognized overnight delivery service such as Federal Express Corporation, Xxxxx
or Purolator, addressed to such party at the address specified below, or (d) on
the first (1st) business day after the date delivered by facsimile to the
respective numbers specified below. For purposes of this SECTION 10.1, the
addresses of the parties for all
Page 19
notices are as follows (unless changed by similar notice in writing given by the
particular person whose address is to be changed):
If to Seller: c/o GE Capital Real Estate
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxx
Telephone: (949) 477-
1566
Fax: (949) 477-
0903
Email:
Xxxx.Xxxxxx@xxxxxxxxx.xxx
with a copy to: Xxxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000)000-0000
Fax: (000)000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
If to Purchaser: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx
Xxxxxxxx
Tel: (630) 218-
8000, Ext. 2019
Fax: (630) 218-
4935
Email:
Xxxxxxxx@xxxxxxxxxxx.xxx
with a copy to: The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
Tel: (630) 218-
8000, Ext. 2854
Fax: (000) 000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
Page 20
If to Title Company: First American Title Insurance Company
00 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Tel: (312) 917-
7257
Fax: (312) 533-
0480
Email:
xxxxxxxxxx@xxxxxxx.xxx
10.2 REAL ESTATE COMMISSIONS. Seller shall pay to CB Xxxxxxx Xxxxx,
Inc. (hereinafter called "AGENT" whether one or more) upon the Closing of the
transaction contemplated hereby, and not otherwise, a cash commission in the
amount agreed on in a separate listing agreement between Seller and Agent. Said
commission shall in no event be earned, due or payable unless and until the
transaction contemplated hereby is closed and fully consummated strictly in
accordance with the terms of this Agreement and Seller has received the Purchase
Price in immediately available funds; if such transaction is not closed and
fully consummated for any reason, including, without limitation, failure of
title or default by Seller or Purchaser or termination of this Agreement
pursuant to the terms hereof, then such commission will be deemed not to have
been earned and shall not be due or payable. Except as set forth above with
respect to Agent, neither Seller nor Purchaser has authorized any broker or
finder to act on Purchaser's behalf in connection with the sale and purchase
hereunder and neither Seller nor Purchaser has dealt with any broker or finder
purporting to act on behalf of any other party. Purchaser agrees to indemnify
and hold harmless Seller from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Purchaser
or on Purchaser's behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Seller agrees to indemnify and
hold harmless Purchaser from and against any and all claims, losses, damages,
costs or expenses of any kind or character arising out of or resulting from any
agreement, arrangement or understanding alleged to have been made by Seller or
on Seller's behalf with any broker or finder in connection with this Agreement
or the transaction contemplated hereby. Notwithstanding anything to the contrary
contained herein, this SECTION 10.2 shall survive the Closing or any earlier
termination of this Agreement.
10.3 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly set
forth herein.
10.4 AMENDMENT. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
10.5 HEADINGS. The captions and headings used in this Agreement are
for convenience only and do not in any way limit, amplify, or otherwise modify
the provisions of this Agreement.
10.6 TIME OF ESSENCE. Time is of the essence of this Agreement;
however, if the final date of any period which is set out in any provision of
this Agreement falls on a Saturday, Sunday or legal holiday under the laws of
the United States or the State of Washington, then, in such event, the time of
such period shall be extended to the next day which is not a Saturday, Sunday or
legal holiday.
Page 21
10.7 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Washington and the laws of the United States pertaining to
transactions in such State.
10.8 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall bind and
inure to the benefit of Seller and Purchaser and their respective heirs,
executors, administrators, personal and legal representatives, successors and
permitted assigns. Purchaser shall not assign Purchaser's rights under this
Agreement without the prior written consent of Seller, which consent may be
withheld absolutely except Purchaser may assign this Agreement to a to-be-formed
entity sponsored by Purchaser or its affiliates, so long as Purchaser delivers
written notice to Seller of such assignment at least fourteen (14) days prior to
scheduled Closing Date and so long as the source of funds used to pay the
Purchase Price is the same source of funds controlled by Purchaser on the
Effective Date. In the event Seller consents to an assignment for which Seller's
consent is required, Purchaser and such assignee shall execute and deliver an
Assignment of Purchase and Sale Agreement in the form attached hereto as
EXHIBIT F. Any subsequent assignment may be made only with the prior written
consent of Seller. No assignment of Purchaser's rights hereunder shall relieve
Purchaser of its liabilities under this Agreement. This Agreement is solely for
the benefit of Seller and Purchaser; there are no third party beneficiaries
hereof. Any assignment of this Agreement in violation of the foregoing
provisions shall be null and void. Notwithstanding anything to the contrary
contained herein, Seller shall be entitled to assign its rights under this
Agreement to one or more entities prior to the Closing Date without the
necessity of Purchaser's consent, but notwithstanding such assignment and a
conveyance of the Property to Seller's assignee, Seller shall not be released
from its obligations under this Agreement.
10.9 INVALID PROVISION. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from this
Agreement.
10.10 ATTORNEYS' FEES. In the event it becomes necessary for either
party hereto to File suit to enforce this Agreement or any provision contained
herein, the party prevailing in such suit shall be entitled to recover, in
addition to all other remedies or damages, as provided herein, reasonable
attorneys' fees incurred in such suit.
10.11 MULTIPLE COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; in making proof of this Agreement, it shall not be necessary
to produce or account for more than one such counterpart with each party's
signature.
10.12 EXPIRATION. The execution of this Agreement by Purchaser and the
delivery hereof to Seller shall constitute an offer which shall be automatically
withdrawn, revoked and terminated unless Seller accepts the same by executing
this Agreement and delivering one fully executed counterpart hereof to the Title
Company prior to 4:00 p.m. Central Standard Time the_____day of__________, 2004.
10.13 EFFECTIVE DATE. As used herein the term "Effective Date" shall
mean the first date the Title Company is in receipt of both this Agreement
executed by Purchaser and Seller (whether in counterparts or not) and the
Xxxxxxx Money.
10.14 EXHIBITS. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
Page 22
(a) EXHIBIT A, the legal description of the Land.
(b) EXHIBIT B, the form of the Deed.
(c) EXHIBIT C, the form of the Assignment.
(d) EXHIBIT D, the form of the Estoppel Certificate.
(e) EXHIBIT D-1, the form of the Guarantor Estoppel Certificate.
(f) EXHIBIT E, the form of the Taxpayer I.D. Certificate.
(g) EXHIBIT F, the form of Assignment of Purchase and Sale
Agreement.
(h) EXHIBIT G, the form of Tenant Notice.
(i) EXHIBIT H, the form of the Holdback Escrow Agreement.
(j) EXHIBIT I, the Leasing Parameters.
10.15 NO RECORDATION. Seller and Purchaser hereby acknowledge that
neither this Agreement nor any memorandum or affidavit thereof shall be recorded
of public record in Snohomish County, Washington or any other county. Should
Purchaser ever record or attempt to record this Agreement, or a memorandum or
affidavit thereof, or any other similar document, then, notwithstanding anything
herein to the contrary, said recordation or attempt at recordation shall
constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Agreement by filing a notice of said termination in the county in which the
Land is located.
10.16 MERGER PROVISION. Except as otherwise expressly provided herein,
any and all rights of action of Purchaser for any breach by Seller of any
representation, warranty or covenant contained in this Agreement shall merge
with the Deed and other instruments executed at Closing, shall terminate at
Closing and shall not survive Closing.
10.17 DTPA WAIVER. PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER
THAT (A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION, (B)
PURCHASER IS REPRESENTED BY LEGAL COUNSEL, AND (C) PURCHASER IS SEEKING TO
ACQUIRE THE PROPERTY, WHICH WILL NOT BE USED AS A FAMILY RESIDENCE, FOR A
CONSIDERATION THAT EXCEEDS $500,000, OR (D) (i) PURCHASER IS A BUSINESS ENTITY
THAT EITHER HAS ASSETS OF $25,000,000 OR MORE OR IS OWNED OR CONTROLLED BY A
CORPORATION OR ENTITY WITH ASSETS OF $25,000,000 OR MORE, OR (ii) PURCHASER IS A
SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF THIS
TRANSACTION. PURCHASER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS, REMEDIES AND BENEFITS UNDER ANY CONSUMER PROTECTION LAW, WHETHER
FEDERAL, STATE OR LOCAL. PURCHASER COVENANTS NOT TO XXX SELLER UNDER ANY SUCH
CONSUMER PROTECTION LAW.
10.18 JURY WAIVER. PURCHASER AND SELLER DO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN
Page 23
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, OR UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING
OR SELLER AT CLOSING, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ANY ACTIONS OF EITHER PARTY ARISING OUT OF OR
RELATED IN ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT
LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR
DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE
VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR SELLER TO ENTER INTO
AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS DELIVERED BY PURCHASER AT CLOSING
AND SHALL SURVIVE THE CLOSING OF TERMINATION OF THIS AGREEMENT.
10.19 LIMITATION ON LIABILITY. No present or future partner, director,
officer, shareholder, employee, advisor, agent, attorney, asset manager, or
subasset manager of or in Seller shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made or
entered into under or in connection with the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Purchaser and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to
Seller's assets for the payment of any claim or for any performance, and
Purchaser hereby waives any and all such personal liability, PROVIDED, HOWEVER,
that the limitation on Seller's liability under this Section 10.19 shall not be
deemed to limit the rights of Purchaser to seek specific performance pursuant to
SECTION 8.1 of this Agreement. The limitations on liability contained in this
SECTION 10.19 are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided in any other provision of this Agreement
or by law or by any other contract, agreement or instrument.
10.20 CONFIDENTIALITY. Without limiting the terms and conditions of
SECTION 4.2 of this Agreement, Purchaser shall keep confidential and shall not
disclose the terms of the transfers contemplated in this Agreement, including,
without limitation, the Purchase Price and all other financial terms, without
the prior written consent of Seller except: (1) to Purchaser's directors,
officers, partners, employees, legal counsel, accountants, engineers,
architects, financial advisors and similar professionals and consultants to the
extent such party deems it necessary or appropriate in connection with the
transaction contemplated hereunder (and Purchaser shall inform each of the
foregoing parties of such party's obligations under this SECTION 10.20 and shall
secure the agreement of such parties to be bound by the terms hereof) or (2) as
otherwise required by law or regulation.
10.21 COOPERATION/AUDIT. Seller agrees to reasonably cooperate with
reasonable requests of Purchaser's independent accounting firm (at no cost or
expense to Seller) relative to the performance by said accounting firm of an
audit of Seller's books and records with respect to the rental income and
operating expenses for the Property.
Page 24
PURCHASER: INLAND REAL ESTATE ACQUISITIONS,
INC.,
an Illinois corporation
Date of Execution
by Purchaser:
5/3/04
------
By: /s/ Xxxx Xxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
SELLER: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
Date of Execution By: GE CAPITAL REALTY GROUP, INC.,
by Seller: a Texas corporation,
its attorney-in-fact
5/4/04
------
By: /s/ [ILLEGIBLE]
----------------------------
Name: [ILLEGIBLE]
----------------------
Title: VP
---------------------
The undersigned Title Company hereby acknowledges receipt of the Xxxxxxx Money
and a copy of this Agreement, and agrees to hold and dispose of the Xxxxxxx
Money in accordance with the provisions of this Agreement.
TITLE COMPANY: FIRST AMERICAN TITLE INSURANCE
COMPANY
Date of Execution
by Title Company:
5-6-04 By: /s/ Xxxxxxxxx Xxxx
------ --------------------------------------------
Name: Xxxxxxxxx Xxxx
--------------------------------------
Title: Asst. Escrow Officer
-------------------------------------
Signature Page
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
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
SNOHOMTSH 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:
Page 1
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.
Page 2
EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
AFTER RECORDING RETURN TO:
----------------------
----------------------
----------------------
STATUTORY WARRANTY DEED
Reference # (if applicable):____________________________________________________
Grantor(s): ITW MORTGAGE INVESTMENTS III, INC.
Grantee(s): _____________________________________________________
Legal Description (Abbreviated):________________________________________________
Assessor's Tax Parcel ID#:______________________________________________________
THE GRANTOR, ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation,
for and in consideration of the sum of Ten Dollars ($10.00) and other valuable
consideration in hand paid to Grantor, conveys and warrants to _________________
___________________, a _____________________________, the following described
real estate, situate in the County of Snohomish, State of Washington.
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:
Page 1
LOT A OF CITY OF MARYSVILLE LOT LINE ADJUSTMENT NO. BLA95-011, 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.
SUBJECT to the permitted encumbrances described in EXHIBIT A attached hereto
and made a part hereof.
Page 2
Dated this_____day of______________, 2004.
ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation,
its attorney-in-fact
By:
------------------------------
Name:
-------------------------
Title:
------------------------
THE STATE OF TEXAS SECTION
SECTION
COUNTY OF DALLAS SECTION
On this day personally appeared before me _____________________________, to
me known to be the ____________________of GE CAPITAL REALTY GROUP, INC., a Texas
corporation, as attorney-in-fact for ITW MORTGAGE INVESTMENTS III, INC., a
Delaware corporation, described in and who executed the within and foregoing
instrument, and acknowledged that s/he signed the same as the free and voluntary
act and deed of the corporation(s), for the uses and purposes mentioned in this
instrument.
Given under my hand and official seal this ________ day of ______________,
2004.
__________________________________________
Notary Public, State of Texas
Printed Name:_____________________________
Residing at:______________________________
My Commission Expires:____________________
(SEAL)
Page 3
EXHIBIT A
TO STATUTORY WARRANTY DEED
1. Real property taxes and assessments for the year 2004 and hereafter, not
yet due and payable.
2. [INSERT SCHEDULE B EXCEPTIONS PER TITLE COMMITMENT AND VESTING DEED]
TOGETHER with all and singular tenements, hereditaments and
appurtenances thereunto belonging or in any way appertaining.
Page 4
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
XXXX OF SALE, ASSIGNMENT AND ASSUMPTION OF
PERSONAL PROPERTY, SERVICE CONTRACTS, WARRANTIES AND LEASES
ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation ("GRANTOR"), for
and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other
good and valuable consideration to it in hand paid by _________________________,
a ____________________________ ("GRANTEE"), the receipt and sufficiency of which
are hereby acknowledged, has Granted, Sold, Assigned, Transferred, Conveyed, and
Delivered and does by these presents Grant, Sell, Assign, Transfer, Convey and
Deliver unto Grantee, all of Grantor's rights, titles, and interests in and to
the following described properties located in, affixed to, and/or arising or
used in connection with the improved property with parking and other amenities
(the "PROJECT") situated on the land in the County of Snohomish, State of
Washington, more particularly described on EXHIBIT A attached hereto and made a
part hereof for all purposes (the "LAND," which together with the Project is
sometimes hereinafter called the "PROPERTY"):
(a) All fixtures, equipment, machinery, building materials, furniture,
furnishings, carpet drapes, and other intangible personal property owned by
Grantor, and all intangible personal property owned by Grantor, including the
name "Safeway Plaza at Marysville," transferable utility contracts, transferable
telephone exchange numbers, plans and specifications, engineering plans and
studies, floor plans and landscape plans (the "PERSONAL PROPERTY"), and located
on, attached to, or used in connection with the operation and maintenance of the
Property;
(b) Any leases for space in the Project (the "LEASES"), together with
security and other deposits owned or held by Grantor pursuant to the Leases,
which Leases and security deposits are described on EXHIBIT B attached hereto;
(c) The assignable service, maintenance, or management contracts relating
to the ownership and operation of the Property (the "SERVICE CONTRACTS")
attached hereto as EXHIBIT C; and
(d) Any assignable warranties and guaranties relating to the Property or
any portion thereof (collectively, the "WARRANTIES"): and
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee assumes and
agrees to be bound by and timely perform, observe, discharge, and otherwise
comply with each and every one of the agreements, duties, obligations, covenants
and undertakings upon the lessor's part to be kept and performed under the
Leases and any obligations of Grantor under the Service Contracts.
Page 1
(ii) Grantee hereby indemnifies and agrees to hold harmless Grantor from
and against any and all liabilities, claims, demands, obligations, assessments,
losses, costs, damages, and expenses of any nature whatsoever (including,
without limited the generality of the foregoing, reasonable attorneys' fees and
court costs) which Grantor may incur, sustain, or suffer, or which may be
asserted or assessed against Grantor on or after the date hereof, arising out
of, pertaining to or in any way connected with the obligations, duties, and
liabilities under the Leases and the Service Contracts, or any of them, arising
from and after the date hereof.
(iii) The burden of the indemnity made in paragraph (ii) hereof shall not
be assigned. Except as aforesaid, this Agreement shall bind and inure to the
benefit of the parties and their respective successors, legal representatives
and assigns.
(iv) Neither this Agreement nor any term, provision, or condition hereof
may be changed, amended or modified, and no obligation, duty or liability or any
party hereby may be released, discharged or waived, except in a writing signed
by all parties hereto.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT MAKE
AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER
THAN THE WARRANTY OF TITLE AS SET OUT IN THE DEED), PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE
DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR
BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY,
STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH
RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE, DOES NOT
MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH
ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS, INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF
HAZARDOUS MATERIALS OR SUBSTANCES. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT
HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, GRANTEE IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY GRANTOR AND ACCEPTS
Page 2
THE PROPERTY AND WAIVES ALL OBJECTIONS OR CLAIMS AGAINST GRANTOR (INCLUDING, BUT
NOT LIMITED TO, ANY RIGHT OR CLAIM OF CONTRIBUTION) ARISING FROM OR RELATED TO
THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY. GRANTEE FURTHER
ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH
RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT GRANTOR
HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION
AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION. GRANTOR IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND
AGREED THAT THE PURCHASE PRICE FOR THE PROPERTY HAS BEEN ADJUSTED BY PRIOR
NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY GRANTOR AND PURCHASED
BY GRANTEE SUBJECT TO THE FOREGOING.
Page 3
IN WITNESS WHEREOF, Grantor and Grantee have executed this Assignment of
Personal Property, Service Contracts, Warranties and Leases on ________________,
2004 to be effective as of the ______ day of ________________________, 2004.
GRANTOR: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation,
its attorney-in-fact
By:
------------------------------
Name:
-------------------------
Title:
------------------------
GRANTEE: --------------------,
a
---------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 4
EXHIBIT A
TO ASSIGNMENT
LEGAL DESCRIPTION
Page 5
EXHIBIT B
TO ASSIGNMENT
LEASES
Page 6
EXHIBIT C
TO ASSIGNMENT
SERVICE CONTRACTS
Page 7
EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
ESTOPPEL CERTIFICATE
To:
Inland Real Estate Acquisitions, Inc., and
Inland Western Marysville, L.L.C.,
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx-Xxx
Re: Lease Agreement dated and amended ("Lease"),
between as "Landlord", and
, as "Tenant", guaranteed by
("Guarantor") for leased premises known as
Space No. _______ (the "Premises") of the property commonly known as Safeway
Plaza at Marysville, Marysville, Washington (the "Property").
1. Tenant hereby certifies that the following represents with respect to the
Lease are accurate and complete as of the date hereof.
a. Dates of all amendments, letter agreements, modifications and waivers related
to the Lease
b. Commencement Date
c. Expiration Date
d. Current Annual Base Rent
Adjustment Date Rental Amount
e. Fixed or CPI Rent Increases
f. Square Footage of Premises
g. Security Deposit Paid to Landlord
h. Renewal Options __________ Additional Terms for
_________ years at $________ per year
i. Termination Options Termination Date _______________
Fees Payable _________________
2. Tenant further certifies to Purchaser that:
Page 1
a. the Lease is presently in full force and effect and represents the entire
agreement between Tenant and Landlord with respect to the Premises;
b. the Lease has not been assigned and the Premises have not been sublet by
Tenant;
c. Tenant has accepted and is occupying the Premises, all construction required
by the Lease has been completed and any payments, credits or abatements required
to be given by Landlord to Tenant have been given;
d. Tenant is open for business or is operating its business at the Premises;
e. no installment of rent or other charges under the Lease other than current
monthly rent has been paid more than 30 days in advance and Tenant is not in
arrears on any rental payment or other charges;
f. Landlord has no obligation to segregate the security deposit or to pay
interest thereon;
g. Landlord is not in default under the Lease and no event has occurred which,
with the giving of notice or passage of time, or both, could result in a default
by Landlord;
h. Tenant has no existing defenses, offsets, liens, claims or credits against
the payment obligations under the Lease;
i. Tenant has not been granted any options or rights to terminate the Lease
earlier than the Expiration Date (except as stated in paragraph 1(i));
j. Tenant has not been granted any options or rights of first refusal to
purchase the Premises or the Property;
k. Tenant has not received notice of violation of any federal, state, county or
municipal laws, regulations, ordinances, orders or directives relating to the
use or condition of the Premises or the Property;
1. no hazardous wastes or toxic substances, as defined by all applicable
federal, state or local statutes, rules or regulations have been disposed,
stored or treated on or about the Premises or the Property by Tenant;
m. Tenant has not received any notice of a prior sale, transfer, assignment,
pledge or other hypothecation of the Premises or the Lease or of the rents
provided for therein;
n. Tenant has not filed, and is not currently the subject of any filing,
voluntary or involuntary, for bankruptcy or reorganization under any applicable
bankruptcy or creditors rights laws;
the Lease does not give the Tenant any operating exclusives for the Property;
o. Rent has been paid through ___________, 2004;
p. Tenant agrees to relinquish and waive any rights it may have against
Purchaser with respect to reconciliations of common area expenses, taxes,
insurance or other charges provided for in the Lease, however denominated, for
any period prior to January 1, 2004, and agrees to look solely to the current
landlord with respect to any claims in connection therewith.
This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and obtain financing which shall be secured by a
deed of trust (or mortgage), security agreement and assignment of rents, leases
and contracts upon the property. Tenant acknowledges that Purchaser's interest
in the Lease (as landlord) will be assigned to a lender as security for the
loan. All rent payments under the Lease shall continue to be paid to landlord in
accordance with the terms of the Lease until Tenant is notified otherwise in
writing by Buyer's lender or its successors and assigns. In the event that a
lender succeeds to landlord's interest under the Lease, Tenant agrees to attorn
to the lender at lender's request, so long as the lender agrees that unless
Tenant is in default under the Lease, the Lease will remain in full force and
effect. Tenant further acknowledges and agrees that Purchaser (including its
lender), their respective successors and assigns shall have the right to rely on
the information contained in this Certificate. The undersigned is authorized to
execute this Tenant Estoppel Certificate on behalf of Tenant.
[TENANT]
By:
Its:
Date: , 2003
Page 2
EXHIBIT D-1
TO PURCHASE AND SALE AGREEMENT
GUARANTOR ESTOPPEL CERTIFICATE
Date: _______________ , 2004
To: ___________
Inland Real Estate Acquisitions, Inc., and
Inland Western Marysville, L.L.C.,
and its lenders, successors and assigns ("Purchaser")
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx-Xxx
Re: Guaranty Agreement dated ___________ ("Guaranty of Lease") pertaining to
that certain lease dated _______ between ______________________ as Landlord
and _________________________________ as Tenant for leased premises known
as ____________________________________ (the "Premises") located at the
property commonly known as ________________ (the "Property").
1. Guarantor certifies to Lender and Purchaser that: (a) the Guaranty of Lease
has been properly executed by Guarantor and is presently in full force and
effect without amendment or modification except as noted above; (b) Guarantor
has no existing defenses, offsets, liens, claims or credits against the
obligations under the Guaranty of Lease.
2. This certification is made with the knowledge that Purchaser is about to
acquire title to the Property and a lender is about to provide Landlord with
financing which shall be secured by a deed of trust (or mortgage), security
agreement and assignment of rents, leases and contracts upon the Property.
Guarantor further acknowledges and agrees that Purchaser and its lender and
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate.
3. The undersigned is authorized to execute this Guarantor Estoppel Certificate
on behalf of Guarantor.
[GUARANTOR]
By:
-------------------------------------
Page 1
EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
TAXPAYER I.D. CERTIFICATE
In connection with certain Internal Revenue Service reporting requirements
imposed upon Seller, Purchaser hereby certifies that listed below is Purchaser's
address and taxpayer I.D. number, true and correct as of the Closing Date.
Address:
-------------------------------------------
-------------------------------------------
Taxpayer I.D. No.:
----------------------------------
Purchaser hereby consents to Seller's release of the above information in
connection with any reporting requirements imposed upon Seller by any
governmental authority.
-------------------,
a
-----------------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 1
EXHIBIT F
TO PURCHASE AND SALE AGREEMENT
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT OF PURCHASE AND SALE AGREEMENT ("ASSIGNMENT"), is made as
of this ________ day of ____________, 20__, by and between __________________, a
_____________________________ ("SELLER"), ___________________________________, a
___________________________ ("PURCHASER"), and ______________________________, a
_______________________ duly formed and organized under the laws of the State of
_____________________ ("ASSIGNEE") (Seller, Purchaser and Assignee are sometimes
referred herein, collectively, as the "PARTIES"). All initially capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement (as such term is defined below).
RECITALS
A. Seller and Purchaser have entered into that certain Purchase and Sale
Agreement ("PURCHASE AGREEMENT"), dated as of __________, 20__, for the sale of
the property described in the Purchase Agreement ("PROPERTY") and commonly known
as "__________________," located in the City of ____________, County of
______________, State of _______ and more particularly described in the Purchase
Agreement.
B. The Parties desire to enter into this Assignment to, among other things,
assign the Purchaser's rights and interests in the Purchase Agreement to
Assignee and to evidence Assignee's assumption of Purchaser's obligations and
liabilities under the Purchase Agreement.
ASSIGNMENT:
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. ASSIGNMENT OF PURCHASE AGREEMENT. Purchaser hereby assigns and transfers
to Assignee all of Purchaser's right, title, claim and interest in and to the
Purchase Agreement, the Property, and all sums paid or deposited into escrow or
to Seller by Purchaser in connection with the Purchase Agreement.
2. ASSUMPTION. Assignee hereby acknowledges and agrees to all of the terms
of the Purchase Agreement and accepts the foregoing assignment and assumes and
agrees to perform all obligations of Purchaser under the Purchase Agreement, in
accordance with the terms thereof.
3. NO RELEASE. The assignment and assumption set forth in Paragraphs 1 and
2 hereof shall not release Purchaser from the obligation of Purchaser or
Assignee to perform in accordance with the terms of the Purchase Agreement.
Purchaser acknowledges that, notwithstanding such assignment and assumption,
Purchaser shall remain primarily obligated under the Purchase Agreement and
Purchaser and Assignee shall be co-obligors under the Purchase Agreement with
joint and several liability for the performance of all obligations of Purchaser
set forth thereunder, including, without limitation, the indemnification
obligations of Purchaser set forth in the Purchase Agreement.
Page 1
4. AMENDMENT TO PURCHASE AGREEMENT. The Purchase Agreement is hereby
amended in the following manner:
(a) The term "PURCHASER" as used in the Purchase Agreement is amended
to mean Purchaser and/or Assignee.
(b) All exhibits to the Purchase Agreement, as so amended, shall be
signed and delivered by Seller and Assignee in accordance with the terms of the
Purchase Agreement.
5. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE. Assignee hereby represents
and warrants to Seller that each and every representation and warranty made by
Purchaser in the Purchase Agreement is true and correct with respect to Assignee
as of the date of the Purchase Agreement and the Closing Date (as defined in the
Purchase Agreement) and such representations and warranties apply fully to this
Assignment and shall survive the Deed (as defined in the Purchase Agreement). In
particular, and without any limitation or affect upon the other representations
and warranties made by Purchaser and Assignee under the Purchase Agreement, as
amended hereunder, Assignee hereby represents and warrants to Seller that
neither Assignee, nor any partner, related entity, or affiliate of Assignee is
in any way affiliated with Seller, GE Capital Realty Group, Inc., General
Electric Capital Corporation, General Electric Company, or any affiliate of
General Electric Company, which representation and warranty shall also survive
the Closing and the delivery of the Deed (as defined in the Purchase Agreement)
to Assignee. Purchaser acknowledges and agrees to be bound by the disclaimer of
representations and warranties contained in Article 5 of the Purchase Agreement,
which acknowledgment and agreement and disclaimer shall survive the Deed.
6. RATIFICATION OF AGREEMENTS. Except as expressly amended and modified
under this Assignment, the Parties hereby ratify and affirm the terms and
provisions of the Purchase Agreement in their entirety.
7. GOVERNING LAW. This Assignment shall be governed by and construed in
accordance with the laws of the State of ______________.
Page 2
IN WITNESS WHEREOF, the parties have executed this Assignment as of the day
and year first above written.
PURCHASER: -------------------,
a
-----------------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
ASSIGNEE: -------------------,
a
-----------------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
SELLER: -------------------,
a
-----------------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 3
EXHIBIT G
TO PURCHASE AND SALE AGREEMENT
NOTICE TO TENANT
_________ , 2004
___________________________
Unit No.___________________
___________________________
___________________________
RE: Sale by ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation
("LANDLORD") to _______________________________, a ___________________
("NEW LANDLORD"), of the land and buildings known as "Safeway Plaza at
Marysville"(the "PROPERTY"), Marysville, Snohomish County, Washington
Dear Tenant:
You are hereby notified that Landlord has sold the Property, of which your
leased premises (the "LEASE") is a part, to New Landlord. Accordingly, New
Landlord, as the new owner of the Property and now as landlord under the Lease,
elects that____________________________ ("TENANT") attorn to Landlord in
accordance with the Lease and the Lease is and shall continue in full force and
effect for the unexpired portions of the term of the Lease upon all of the
terms, covenants, conditions and agreements set forth in the Lease with
Landlord.
Further, you are advised that New Landlord has received and is responsible
for Tenant's security deposit in the amount of $______________________.
The address and telephone number of the New Landlord for any notices and
all purposes under the Lease is:
____________
____________
____________
____________
Page 1
Thank you for your assistance and cooperation during this transition.
LANDLORD: ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation,
its attorney-in-fact
By:
------------------------------
Name:
-------------------------
Title:
------------------------
NEW LANDLORD: --------------------,
a
---------
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 2
EXHIBIT H
TO PURCHASE AND SALE AGREEMENT
HOLDBACK ESCROW AGREEMENT
THIS HOLDBACK ESCROW AGREEMENT (this "AGREEMENT") is entered into by and
among ITW MORTGAGE INVESTMENTS III, INC., a Delaware corporation ("SELLER"), ___
____________________, a ___________________ ("BUYER") and FIRST AMERICAN TITLE
INSURANCE COMPANY ("ESCROW AGENT").
RECITALS:
A. Seller and Buyer entered into that certain Purchase and Sale Agreement
dated as of ____________, 2004 (the "CONTRACT"), pursuant to which Seller agreed
to sell to Buyer and Buyer agreed to purchase the real estate and improvements
known as "Safeway Plaza at Marysville," located in the City of Marysville,
Snohomish County, Washington as more particularly described in the Contract (the
"PROPERTY").
B. Prior to the closing of the transaction contemplated by the Contract
(the "CLOSING"), Seller did not execute a lease with Citifinancial ("TENANT")
for space at the Property for approximately 1,500 net rentable feet known as
Suite _________ (the "PREMISES").
C. Seller has agreed that PURSUANT to SECTION 4.7 of the Contract,
$47,625.00 (the "HOLDBACK") would be held back from the Purchase Price at the
Closing and will be held in escrow and disbursed in accordance with the terms
set forth herein. The Holdback is comprised of (i) annual base rent of $17.50
per square foot of the Premises over a twelve (12) month period; (ii) annual
triple net charges of $4.25 per square foot of the Premises over a twelve (12)
month period ((i) and (ii) are herein collectively called the "ESCROWED RENT");
and (iii) $10.00 per square foot of the Premises for tenant improvement costs
and leasing commissions associated with executing a new lease with Tenant or any
other tenant ("REPLACEMENT TENANT") ((iii) is herein called the "LEASING
COSTS").
D. At Closing, Buyer deposited the portion of the Purchase Price equal to
the Holdback with Escrow Agent.
E. Escrow Agent agrees to act as escrow agent to hold, administer, invest
and disburse the Holdback on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual covenants of the parties herein contained, and in further
consideration of the sum of One Dollar ($1.00), which each of the parties
acknowledges is adequate and sufficient, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein, unless otherwise herein
defined, shall have the meanings set forth in the Contract.
2. APPOINTMENT. Buyer and Seller hereby appoint Escrow Agent to serve as
such for the purpose set forth herein and Escrow Agent accepts such appointment.
3. ACKNOWLEDGMENT OF RECEIPT. Escrow Agent hereby acknowledges receipt of
the Holdback.
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4. ADMINISTRATION OF HOLDBACK. Escrow Agent hereby agrees to hold and
administer the Holdback pursuant to the terms and conditions of this Agreement.
5. SELLER'S LEASING. From and after Closing until the expiration of this
Agreement, Seller shall have the right, but not the obligation, to lease the
Premises to Tenant or a Replacement Tenant upon the same or better terms and
conditions set forth in this Agreement, or upon terms and conditions otherwise
reasonably acceptable to Buyer. If the business terms and conditions of the
lease with the Tenant or a Replacement Tenant are the same or better for Buyer
than the terms and conditions set forth in this Agreement, or if the terms and
conditions of such lease are otherwise reasonably acceptable to Buyer and
Seller, and so long as such new lease does not violate any express use
restrictions reserved to tenants at the Property existing as of the date of this
Agreement, Buyer shall promptly (but in no event later than ten (10) days after
receipt of such new lease) execute such new lease.
6. CONDITIONS PRECEDENT TO DISBURSEMENT OF HOLDBACK. It shall be a
condition precedent to disbursement that Buyer provide to Seller and Escrow
Agent a draw request on or before the seventh (7th) day of each calendar month
during the term of this Agreement, specifying the amount then being drawn from
the Holdback. Escrow Agent may, without any further evidence or direction, rely
on such draw request and the amounts set forth therein and Escrow Agent may
presume that such amounts are consistent with the terms, conditions and
agreements of Seller and Buyer set forth herein unless Seller objects to such
disbursement within ten (10) business days following Seller's receipt of Buyer's
draw request, in which event the terms and conditions set forth in PARAGRAPH 11
below shall control. Unless Seller objects to such disbursement within such ten
(10) business period, the Holdback shall be disbursed by Escrow Agent to Buyer
on the eleventh (11th) day after Escrow Agent's receipt of the draw request from
Buyer.
7. DISPOSITION OF HOLDBACK. Commencing on June 7, 2004 and continuing on
the seventh (7th) day of each calendar month thereafter during the term of this
Agreement, Escrow Agent will disburse to Buyer from the Holdback on the eleventh
(11th) day after Escrow Agent's receipt of the draw request from Buyer as set
forth in PARAGRAPH 6 above, an amount equal to one-twelfth (1/12) of the
Escrowed Rent (less any base rents, triple net charges and other additional rent
and charges [excluding security deposits and prepaid rent] received by Buyer
from Tenant or a Replacement Tenant). On June 7, 2005, if this Agreement has not
previously terminated, Escrow Agent will disburse to Buyer any remaining funds
in the Holdback that are due Buyer under this Agreement and the balance, if any,
will be disbursed to Seller. Notwithstanding anything to the contrary contained
herein, any draw by Buyer from the Holdback on June 7, 2004 shall be an amount
equal to Buyer's pro rata share for the month of June.
8. LEASING COSTS. In the event Buyer executes a new lease with a
replacement tenant before the Holdback is fully disbursed to Buyer, then Buyer
may draw upon the remaining portion of the Holdback in the amount of the lesser
of (i) $_____________ or (ii) the Leasing Costs payable by the landlord under
such new lease in consummating such lease with Tenant or a Replacement Tenant,
subject, however to the conditions set forth in PARAGRAPH 6 above.
9. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
earlier to occur of (i) the full disbursement of the Holdback, or (ii) June 7,
2005, or (iii) the execution by Tenant or a Replacement Tenant of a new lease,
or (iv) termination hereof by written agreement of the parties hereto.
Notwithstanding anything to the contrary contained herein, in the event Tenant
or a Replacement Tenant executes a new lease for the Premises, prior to
disbursement to Seller of any
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funds in the Holdback, Escrow Agent shall first disburse to Buyer out of the
Holdback the amount of Leasing Costs required by PARAGRAPH 8 of this Agreement.
10. INDEMNIFICATION OF ESCROW AGENT. If this Agreement or any matter
relating hereto shall become the subject of any litigation or controversy, Buyer
and Seller shall, jointly and severally, hold Escrow Agent free and harmless
from any loss or expense, including attorneys' fees, that may be suffered by it
by reason thereof other than as a result of Escrow Agent's breach of this
Agreement, negligence or willful misconduct. In the event conflicting demands
are made or notices served upon Escrow Agent with respect to this Agreement, or
if there shall be uncertainty as to the meaning or applicability of the terms of
this Agreement, Buyer and Seller expressly agree that Escrow Agent shall be
entitled to file a suit in interpleader and to obtain an order from the court
requiring Buyer and Seller to interplead and litigate their several claims and
rights among themselves. Upon the filing of the action in interpleader and the
deposit of the Holdback into the registry of the court, Escrow Agent shall be
fully released and discharged from any obligations imposed upon it by this
Agreement with respect to the amount so deposited with the court.
11. LIABILITY. Escrow Agent shall not be liable for the sufficiency or
correctness as to form, manner, execution or validity of any instrument
deposited with it, nor as to the identity, authority or rights of any person
executing such instrument. It is agreed that the duties of the Escrow Agent are
purely ministerial in nature, and that Escrow Agent's duties hereunder shall be
limited to the safekeeping of the Holdback and documents received by it as
Escrow Agent, and for their disposition in accordance with the terms of this
Agreement. Seller and Buyer hereby release the Escrow Agent from any act done or
omitted to be done by Escrow Agent in good faith in the performance of its
duties hereunder. The Escrow Agent may seek the advice of independent legal
counsel in the event of any dispute or question as to the construction of any of
the provisions of this Agreement or its duties hereunder, and it shall incur no
liability and shall be fully protected in respect of any action taken or
suffered by it in good faith in accordance with the opinion of such counsel.
12. MAINTENANCE OF CONFIDENTIALITY BY ESCROW AGENT. Except as may otherwise
be required by law or by this Agreement, Escrow Agent shall maintain in strict
confidence and not disclose to anyone the existence of this Agreement, the
Contract, the identity of the parties to the foregoing, the amount of the
Purchase Price, the provisions of this Agreement or the Contract or any other
information concerning the transactions contemplated hereby or by the Contract,
without the prior written consent of Buyer and Seller.
13. INVESTMENT OF HOLDBACK.
(a)Escrow Agent shall invest and reinvest the Holdback at the written
instruction of Buyer in an interest-bearing FEDERALLY insured account as Buyer
shall direct. The investment of the Holdback shall be at the sole risk of Buyer.
Buyer shall provide the Escrow Agent with a taxpayer identification number and
shall pay all income taxes due by reason of interest accrual on the Holdback and
all such interest shall be the sole property of Buyer (regardless of whether any
portion of the principal sum of the Holdback is released to Seller strictly in
accordance with the terms and conditions of this Agreement) to be held or
invested by Escrow Agent as Seller may direct.
(b)Escrow Agent is not and shall not be responsible for maintaining the
value of any investment or providing investment counseling. In addition, Escrow
Agent is not to be held responsible for any loss of principal or interest which
may be incurred as a result of making the investments or redeeming said
investments for the purposes of this Agreement.
Page 3
(c)Except as to deposits of funds for which Escrow Agent has received
express written direction concerning investment or other handling, the parties
hereto agree that the Escrow Agent shall be under no duty to invest or reinvest
any deposits at any time held by it hereunder; and further Escrow Agent can
commingle such deposits with other deposits or its own funds in accordance with
all laws, and may use any part or all such funds for its own benefit without
obligation to any part for interest or earnings derived thereby, if any. Nothing
herein shall diminish Escrow Agent's obligation to apply the full amount of the
Holdback in accordance with the terms of this Agreement.
14. NOTICES. Any notice required or permitted to be given hereunder shall
be deemed to be given when hand delivered or one (1) business day after pickup
by Xxxxx Air Freight, Airborne, Federal Express, or similar overnight express
service, or by facsimile (only as provided below) in either case addressed to
the parties at their respective addresses referenced below:
If to Seller: c/o GE Capital Real Estate
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxx
Telephone: (949) 477-
1566
Fax: (949) 477-
0903
Email:
Xxxx.Xxxxxx@xxxxxxxxx.xxx
with a copy to: Xxxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000)000-0000
Fax: (000)000-0000
Email: xxxxxxxxx@xxxxxxxxxxxx.xxx
If to Buyer: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Tel: (000) 000-0000, Ext.
2019
Fax: (000)000-0000
Email:
Xxxxxxxx@xxxxxxxxxxx.xxx
Page 4
with a copy to: The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
Tel: (000) 000-0000, Ext.
2854
Fax: (000)000-0000
Email: xxxxx@xxxxxxxxxxx.xxx
If to Escrow
Agent: First American Title Insurance Company
00 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Tel: (312) 917-
7257
Fax: (312) 553-
0480
Email:
xxxxxxxxxx@xxxxxxxx.xxx
or in each case to such other address as either party may from time to time
designate by giving notice in writing to the other party. Except for facsimile
notices between 9:00 a.m. and 5:00 p.m. Dallas time on a business day that are
followed up by an overnight courier delivery, telephone and facsimile numbers
are for informational purposes only. Effective notice will be deemed given only
as provided above. For purposes of this PARAGRAPH 14, the addresses of the
parties for all notices are as set forth above (unless changed by similar notice
in writing given by the particular person whose address is to be changed).
13. MISCELLANEOUS.
(a)This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators,
representatives, successors and assigns.
(b)This Agreement shall be construed under and governed by the laws of the
State of Washington and, in the event that any provision hereof shall be deemed
illegal or unenforceable, said provision shall be severed herefrom and the
remainder of this Agreement shall be enforced in accordance with the intent of
the parties as herein expressed.
(c)This Agreement may not be amended or altered except by an instrument in
writing executed by all the parties hereto.
(d)Any fee charged by Escrow Agent this escrow shall be paid by Buyer in
its entirety and Seller shall have no liability or responsibility therefor.
(e)Escrow Agent may resign at any time without designation of cause and
without liability, by providing, notice to Buyer and Seller. In such event,
Escrow Agent shall hold the Holdback and deliver the same only upon the joint
written instructions from Buyer and Seller, and
Page 5
Buyer and Seller agree to appoint a new escrow agent within thirty (30) days
from the date Escrow Agent resigns.
(f)Buyer may not, without Seller's and Escrow Agent's prior consent,
assign this Agreement and its rights and obligations hereunder to any entity or
individual or other legal person.
(g)This Agreement may be executed in multiple counterparts and by the
parties on separate counterparts, each of which shall be deemed to be an
original and all of which shall together constitute one and the same agreement.
The parties may execute and deliver this Agreement by forwarding signed
facsimile copies of this Agreement. Such facsimile signatures shall have the
same binding effect as original signatures, and the parties hereby waive any
defense to validity based on any such copies or signatures.
[SIGNATURE PAGES FOLLOW]
Page 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of __________ day of _________, 2004. In the event of a conflict
between the terms hereof and the terms of the Contract, the Contract shall
govern.
SELLER ITW MORTGAGE INVESTMENTS III, INC.,
a Delaware corporation
By: GE CAPITAL REALTY GROUP, INC.,
a Texas corporation,
its attorney-in-fact
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 7
PURCHASER: --------------------,
a
--
By:
--------------------------------,
a
--------------------------------,
its
------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Page 8
TITLE COMPANY: FIRST AMERICAN TITLE INSURANCE
COMPANY
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Page 9
EXHIBIT H
TO PURCHASE AND SALE AGREEMENT
LEASING PARAMETERS
1. SUITE 1246-E (AVAILABLE): 1,500 SF, $16 psf/yr. for rent, $5 psf for tenant
improvements and $5 psf for leasing commissions.
2. SUITE 1262-D (AVAILABLE): 1,300 SF, $18 psf/yr. for rent, $5 psf for tenant
improvements and $5 psf for leasing commissions.
3. SUITE 1262-J (SUBS 'N MORE - CURRENTLY MONTH TO MONTH): 1,000 SF, $20 psf/yr.
for rent, $10 psf for tenant improvements and $5 psf for leasing commissions.
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