Exhibit 10.147
CAM RECONCILIATION ESCROW AGREEMENT
THIS CAM RECONCILIATION ESCROW AGREEMENT (this "Escrow Agreement") is made
as of this ______ day of May, 2004, by and among NORTHPOINTE DELAWARE, LLC, a
Delaware limited liability company, and CHULA VISTA PLAZA, LLC, a California
limited liability company (collectively, "Seller"); INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C., a Delaware limited liability company ("Inland"); and
CHICAGO TITLE INSURANCE COMPANY ("Escrow Agent").
RECITALS:
A. Seller and Inland Real Estate Acquisitions, Inc. previously entered
into an Agreement of Purchase and Sale, dated as of March 23, 2004 (as amended
and reinstated, the "Agreement"), a copy of which Agreement has been delivered
to Escrow Agent and is incorporated by reference herein. Inland Real Estate
Acquisitions, Inc. subsequently assigned its interest in the Agreement to Inland
by Assignment and Assumption of Agreement of Purchase and Sale effective May 27,
2004.
B. Capitalized terms used herein and not defined herein shall have the
meanings ascribed to those terms in the Agreement.
C. Seller has informed Inland that (a) Seller has completed the calendar
year 2003 common area maintenance expense reconciliations for each and all of
the tenants of the Property, and (b) such reconciliations show (that Seller owes
to the Property tenants, on an aggregate, net basis, One Hundred Thirty Nine
Thousand Thirty-Nine and 60/100 Dollars ($139,039.60) (the "Escrowed Funds") as
reimbursement for such tenants' overpayment of their respective shares of common
area maintenance expenses for calendar year 2003.
D. Seller and Inland have agreed that Seller will deposit with Escrow
Agent the Escrowed Funds, which funds shall be held, administered and disbursed
pursuant to the terms of this Escrow Agreement.
NOW, THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Simultaneously with the execution of this Escrow Agreement, Seller
will deposit, in cash, with the Escrow Agent the Escrowed Funds.
2. (a) The Escrow Agent agrees to invest the Escrowed Funds in Permitted
Investments, as hereinafter defined. The Escrow Agent shall not invest the
Escrowed Funds in any investment that would require the Escrow Agent to pay a
penalty for withdrawal to pay any disbursement hereunder. Interest earned on the
Escrowed Funds shall accrue to such funds and be paid to Seller. For tax
purposes, interest earned on the escrowed funds shall be for the account of
Seller, Seller's tax identification numbers are:___________.
(b) The term "Permitted Investments" means:
(i) Government Obligations as hereinafter defined;
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
(ii) Negotiable or non-negotiable certificates of deposit and
time deposits (including Eurodollar certificates of
deposit), maturing within ninety (90) days from the date
of acquisition, issued by a federally chartered bank
having at least $10 billion in total assets (an "Approved
Bank"); and
(iii) money market funds of Chase Manhattan Bank or Bank of
America, N.A.
The term "Government Obligations" means (a) direct
obligations of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged, or (b) obligations issued by
a person controlled or supervised by and acting as an
instrumentality of the United States of America, the
payment of the principal of, premium, if any, and interest
on which is fully guaranteed as a full faith and credit
obligation of the United States of America (including any
securities described in (a) or (b) above in this sentence
issued or held in book-entry form on the books of the
Department of the Treasury of the United States of
America), which obligations, in either case, are not
subject to redemption prior to maturity at less than par
by anyone other than the owner.
3. (a) (i) Inland shall have the right, at any time and from time to
time to request (each, a "Disbursement Request") Escrow Agent to disburse
Escrowed Funds in an amount equal to (1) the amount that any tenant of the
Property shall request as reimbursement for its overpayment of its pro rata
share 2003 common area maintenance expenses for the Property, or (2) any amount
offset against any rent or other amount that becomes due and payable under such
tenant's lease of space at the Property for its overpayment of its pro rata
share 2003 common area maintenance expenses. Inland shall forward copies of all
Disbursement Requests to Seller at the time forwarded to Escrow Agent.
(ii) Escrow Agent promptly shall disburse to Inland the amount
requested in a Disbursement Request, unless Escrow Agent receives a written
notice from Seller objecting to a release of all or part of the amount requested
in the Disbursement Request within five (5) business days after Seller's and
Escrow Agent's receipt of the Disbursement Request. Seller agrees that it shall
not object to any requested disbursement provided that the amount so requested
(with respect to each tenant on a tenant by tenant basis) does not exceed the
amount owed to the tenant (as set forth on Exhibit A attached hereto and made a
part hereof) for its overpayment of its pro rate share of 2003 common area
maintenance expenses of the Property. Any such objection must set forth the
basis on which such objection is made and the amount to which such objection is
made. In such event, Escrow Agent shall release only such amount requested for
payment in the Disbursement Request that Seller does not object to, if any, and
Escrow Agent shall continue to hold the portion of the amount requested for
payment in the Disbursement Request to which Seller objects until directed to do
otherwise by joint written instruction from the parties or a decision by the
Consulting Broker (as defined below) pursuant to (iii) below directing the
disposition of such portion of the amount requested for payment in the
Disbursement Request objected to by Seller.
(iii) In the event Seller objects to the release of any funds
requested for payment in a Disbursement Request, and the parties cannot resolve
such disagreement or dispute, then either party shall have the right, upon ten
(10) days notice to the other party, to have the disagreement or dispute
submitted to the Consulting Broker, for decision, whose decision shall be
binding on Seller and Inland. Seller or Inland shall have the right to propose
to the other the name of a third-party commercial real estate broker with at
least ten (10) years experience in the shopping center field to resolve such
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
2
disagreement or dispute (the "Consulting Broker"). If the parties cannot agree
on such proposed Consulting Broker, either one shall have the right to refer the
selection of the Consulting Broker to the president of a commercial real estate
brokerage association that serves the area in which the Property is located and
is qualified with ten years experience in the shopping center field, except if
the president is not an independent party or otherwise qualified as provided
above, in which case the matter shall be submitted to the next senior officer of
such association who is independent of both parties and has the requisite
experience qualification, who shall make such designation within ten (10)
business days after request herefore by either party, in which event such
designated broker shall be deemed the "Consulting Broker". With regard to any
disagreement or dispute referred to the Consulting Broker pursuant to this
subparagraph (iii), such Consulting Broker shall review the matter and render a
decision within thirty (30) days after referral of the matter for a decision.
Seller and Inland shall each be responsible, for and pay one-half (1/2) of the
Consulting Broker's reasonable fees and expenses incurred in connection with
rendering its decision pursuant to this subparagraph (iii), and have the right
to exercise all rights and remedies available to it to enforce the Consulting
Broker's decision.
4. Escrow Agent acknowledges that it has received compensation for its
services performed pursuant to this Escrow Agreement; PROVIDED, HOWEVER, in the
event of a dispute between Seller and Inland concerning disbursement of the
Escrowed Funds or as a result of interpleader, Seller and Inland shall each pay
one-half (1/2) of Escrow Agent's reasonable attorneys' fees and cost.
8. All notices, requests and other communications to any party hereunder
and all notices to the Escrow Agent required under this Escrow
Agreement shall be in writing (including telecopies, facsimile
transmissions, and similar writings) and shall be given to such party
at its address, telecopier or facsimile number, set forth below or
such other address, telecopier or facsimile number as such party may
hereafter specify for that purpose by notice to the other party. If a
party sends notice by facsimile, then it shall also send a duplicate
copy by hand, U.S. Mail, overnight mail or other means; provided,
however, that notice shall be deemed given upon the confirmed
transmission of the facsimile copy.
TO SELLER:
Barclays Realty and Management Co.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With copy to:
Xxxxxxx Coie
00000 X.X. Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Facsimile: ________________________
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
3
TO INLAND:
Inland Real Estate Acquisitions, Inc.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile (000) 000-0000
With copy to:
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
TO THE ESCROW AGENT:
Chicago Title Insurance Company
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Each such notice, request or other communication shall be effective and shall
be deemed received (a) if given by telecopier or facsimile transmission, when
such telecommunication is transmitted and confirmation of receipt obtained
(provided, however, that a duplicate copy shall also be sent to the same party
by hand, U.S. Mail, overnight mail or other means), (b) if given by mail, three
days after such communication is so deposited, postage prepaid, by registered or
certified mail, return receipt requested, in the U.S. Mail, (c) if given by
overnight mail, then on the next business day after deposit with a nationally
recognized overnight mail service, or (d) if given by any other means, when
delivered at the address specified in this Section.
6. No amendment or modification of this Escrow Agreement shall be
effective unless in writing, signed by all of the parties hereto.
7. Escrow Agent hereby accepts the duties imposed upon it by this Escrow
Agreement and agrees to perform such duties subject to the following terms and
conditions:
(a) The Escrow Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Escrow Agreement.
(b) In the absence of bad faith, the Escrow Agent may conclusively
rely upon written notices and statements or documents received from a party to
this Escrow Agreement or from a duly authorized representative of a party to
this Escrow Agreement, as Escrow Agent reasonably believes to be genuine, and
shall incur no liability on account of such reliance.
(C) Except where it shall be determined that the Escrow Agent is
liable for gross negligence or willful misconduct:
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
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(1) The Escrow Agent shall not be liable for any error of
judgment; and
(2) The Escrow Agent shall not be liable with respect to any
action taken or omitted to be taken by the Escrow Agent in accordance with this
Escrow Agreement.
(d) No provision of this Escrow Agreement shall be construed to
require the Escrow Agent to expend or risk the Escrow Agent's own funds or
otherwise incur any financial liability in the performance of any of the duties
hereunder.
(e) Escrow Agent shall not be responsible for the validity or the
execution of this Escrow Agreement.
(f) The parties shall indemnify and hold Escrow Agent harmless from
and against any and all loss, liability, claim, damage or expense (hereinafter
collectively "Damages"), including reasonable attorney's fees, (1) which Escrow
Agent may incur or suffer by reason of its performance under this Escrow
Agreement (except Escrow Agent's gross negligence or willful misconduct) for
which such party is responsible, and (2) which arise from or relate to any
action by or failure of such party related to the subject matter of this Escrow
Agreement.
8. This document may be executed in as many counterparts as may be
required; and it shall not be necessary that the signature of, or on behalf of,
each party, or that the signatures of all persons required to bind any party,
appear on each counterpart; but it shall be sufficient that the signature of, or
on behalf of, each party, or that the signatures of the persons required to bind
any party, appear on one or more of such counterparts. All counterparts shall
collectively constitute a single document.
9. This Escrow Agreement may be executed and delivered by exchange of
facsimile copies showing the signatures of Seller, Inland and Escrow
Agent and those signatures need not be affixed to the same copy. The
facsimile copies showing the signatures of Seller, Inland and Escrow
Agent will constitute originally signed copies of the same agreement
requiring no further execution.
10. Time is of the essence of this Escrow Agreement and the terms hereof.
11. The Liability of each Seller under this Escrow Agreement is and shall
be joint and several.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[See following pages for counterpart signature pages]
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
5
SELLER'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the ______ day of May, 2004 as to Seller.
SELLER:
NORTHPOINTE DELAWARE, LLC,
a Delaware limited liability company
By: Xxxxxxx'x Realty and Management Co., its
Authorized agent
By:
--------------------------------
Xxxx X. Xxxxxxx
Vice President
CHULA VISTA PLAZA, LLC, a California
limited liability company
By: Xxxxxxx'x Realty and Management Co., its
Authorized agent
By:
--------------------------------
Xxxx X. Xxxxxxx
Vice President
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
6
INLAND'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the _______ day of May, 2004 as to Inland.
INLAND:
INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C, a Delaware
limited liability company
By: INLAND WESTERN RETAIL
REAL ESTATE TRUST, INC.,
a Maryland corporation, its sole member
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------
Its: [ILLEGIBLE]
----------------------------
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
7
ESCROW AGENT'S COUNTERPART SIGNATURE PAGE TO
ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the _______ day of May, 2004 as to Escrow Agent.
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------
Name:
----------------------
Title:
---------------------
NORTHPOINTE-CAMRECONCILIATIONAGREEMENT
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EXHIBIT A
[SEE ATTACHED]
XXXXXXXXXXX-XXXXXXXXXXXXXXXXXXXXXXXXXX
0
XXXXXXXXXXX XXXXX
OTHER CLOSING ITEMS
AS OF MAY 20, 2004
BALANCE 2003 CAM/INS
UNIT TENANT AS OF 5/20 RECENT CHARGE * TOTAL REMARKS
------------------------------------------------------------------------------------------------------------------------------
100 SAFEWAY STORE 14,070.13 14,070.13
1-B MARKS HALLMARK (6,091.08) (6,091.08)
1-C GREAT CLIPS (2,021.33) (2,021.33)
1-D MAIL BOXES, ETC. 1,300.00 1,300.00 Additional security deposit
1-F MOTHER'S CUPBOARD (1,929.97) (1,929.97)
200 BORDERS (3,834.14) (3,834.14)
300 BEST BUY (9,113.98) (11,572.28) 5,090.20 (15,596.06)
400 STAPLES 1,104.37 2,888.97 3,993.34
450 PETSMART (2,416.32) (7,158.48) 2,960.80 (6,614.00)
4-A PAYLESS SHOES #3567 (474.87) (205.36) (680.23)
4-B BATH & BODY WORKS (969.60) (716.28) (1,685.88)
4-C XXXXX BEAUTY 625.41 (2,080.71) (1,455.30) Rent Adj March to May
000 XXXXXX #000 955.22 3,864.47 4,819.69
5-A RADIO SHACK #3766 (88.39) 623.62 712.01
5-B AMERICA'S BEST (5,501.71) (5,501.71)
5-C XXXX WEBS 750.00 (1,817.89) (1,067.89) Rent Increase Feb to May
600 T.J. MAXX #690 1,251.01 1,643.59 2,894.60
700 FASHION BUG #2313 (501.10) 3,301.74 2,800.64
900 GART SPORTS (35,850.06) (46,259.75) (82,109.81)
940 LINENS 'N THINGS 0.03 3,311.47 3,311.50
1000 COUNTRY BUFFET (14,134.79) (14,134.79)
FAD 1 SAFEWAY GAS BAR 1,731.42 1,731.42
2 PAY DAY PLUS (835.02) (835.02)
3 PIZZA HUT (407.56) (407.56)
4 RED XXXXX REST (8,544.10) (8,544.10)
5 PIER ONE 569.84 3,222.13 3,791.97
6 HOLLYWOOD VIDEO 329.59 (5,527.37) (5,197.78)
7A AZTECA RESTAURANT (1,864.70) (1,864.70)
7B CORRAL WEST (9,161.84) (9,161.84)
7C VACANT 0.00
7D FOXY NAIL (2,229.88) (2,229.88)
8 TACO XXXX (1,329.26) (1,329.26)
9 WA MUTUAL BANK (559.50) (5,294.39) (5,853.89)
10 APPLE BEE'S (318.68) (318.68)
---------------------------------------------------
Total (46,014) (124,?3?.27) 31,607.24 (139,???.60)
===================================================
*CAM/Insurance charge for tenants billed on Actual.
[ILLEGBILE]
[ILLEGBILE]
[ILLEGBILE]
EXHIBIT A
FORM GUARANTY OF LEASE
THIS GUARANTY OF LEASE (this "Guaranty") is made as of the ___ day of
_________, 2004, by NORTHPOINT DELAWARE LLC, a Delaware limited liability
company and CHULA VISTA PLAZA LLC, a California limited liability company
(collectively, "Guarantor"), to and for the benefit of INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C., a Delaware limited liability company ("Purchaser").
R E C I T A L S:
A. Seller and Purchaser previously entered into that certain Agreement of
Purchase and Sale dated as of March 23, 2004 (the "Agreement"), with respect to
certain real property and all improvements thereon commonly known as Xxxxxxxxxxx
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, and more particularly described in
the Agreement. All capitalized terms which are not expressly defined in this
Guaranty, but which are defined in the Agreement, shall have the same meaning
herein as are ascribed to such terms in the Agreement.
B. By Letter dated April 21, 2004, Purchaser terminated the Agreement.
C. By Reinstatement of and First Amendment to Agreement of Purchase and
Sale dated as of _________, 2004, Seller and Purchaser reinstated the Agreement
in its entirety and amended the Agreement (the "Amendment").
D. Pursuant to the Amendment, Seller agreed to fully, irrevocably and
unconditionally guaranty the full and prompt payment by Corral West Ranchwear,
Inc. ("Corral"), of any and all rent, including, without limitation, minimum
rent and Corral's pro rata share of so-called common area maintenance expenses,
taxes and insurance premiums (collectively, "Rent"), that becomes due any
payable during the period of time commencing as of the Closing and ending on the
first (1st) anniversary of the Closing under and pursuant to that certain
Shopping Center Lease, dated as of February 4, 1991, between Guarantor (as
assignee of landlord's interest thereunder) and Corral, as amended by that
certain Agreement Amending Terms of Existing Lease, dated as of April 1, 1997,
as further amended by that certain Agreement Amending Terms of Existing Lease,
dated as of December ____, 2000, and as further amended by that certain
Agreement Setting Lease Terms, dated as of August 21, 2001 (collectively, the
"Corral Lease").
E. The execution and delivery of this Guaranty by Guarantor is a material
inducement to Purchaser to close the transaction contemplated by the Agreement
and the Amendment.
NOW, THEREFORE, in consideration of the Recitals set forth above and for
other good and valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, Guarantor hereby covenants and agrees as follows:
1. RECITALS. The Recitals set forth above are, by this reference,
incorporated herein as if the same had been fully set forth in the body of this
Guaranty in their entirety.
2. GUARANTY. Guarantor absolutely, unconditionally and irrevocably hereby
guarantees to Purchaser: (a) The full and prompt payment when due, whether upon
acceleration or otherwise, and at all times thereafter, of any and all Rent
which may now be or hereafter become due any payable by Corral under and
pursuant to the Lease during the period of time commencing as of the Closing and
ending on the first (1st) anniversary of the Closing; and (b) payment of all
Enforcement Costs (as defined in Section 8 below) (all of the foregoing to be
collectively referred to herein as "Liabilities"). For the purposes of
NORTHPOINTE-REINSTATEMENTOFCONTRACT.02
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this Guaranty any voluntary or involuntary bankruptcy or similar proceeding
filed by or against Corral shall have no effect on Guarantor's liability under
this Guaranty, and the amount of Rent guaranteed by Guarantor in such instance
shall be the amount of Rent that becomes or would have become due any payable
under the Lease as if such bankruptcy or similar event had not occurred.
3. PURCHASER'S REMEDIES.
(a) This Guaranty is an absolute, irrevocable, present and continuing
guaranty of payment and not merely a guaranty of collection. In the event
of any failure of Corral to fully and timely pay any and all Rent as and
when due and payable under the Lease, Guarantor agrees, immediately upon
demand by Purchaser, to pay all such Rent to Purchaser. Nothing contained
in this Guaranty is intended to or shall limit or restrict any of
Purchaser's rights and remedies under and pursuant to the Lease, and
Purchaser's pursuit of such rights and remedies shall not affect
Guarantor's liability under this Guaranty.
(b) Notwithstanding anything to the contrary herein contained, in any
action to enforce any of the liabilities or obligations of Guarantor under
this Guaranty, Purchaser, at its election, may proceed against Guarantor
with or without: (i) joining Corral in any such action; (ii) commencing any
action against or obtaining any judgment against Corral; or (iii)
commencing any proceeding to enforce or realize upon any collateral or
other security (including, without limitation, any security deposit or
other guaranties) which may be given to secure Corral's obligations under
the Lease, or to obtain any judgment, decree or foreclosure sale with
respect thereto. Nevertheless, the maintenance of any action or proceeding
by Purchaser to recover any sum or sums that may be or become due under the
Lease shall not preclude Purchaser from demanding and receiving the payment
of such sums from Guarantor, or from thereafter instituting and maintaining
subsequent actions or proceedings for any subsequent default or defaults of
Corral under the Lease. Guarantor does hereby agree that, without affecting
the liability of Guarantor under this Guaranty and without notice to
Guarantor, Purchaser may (i) grant to Corral additional time for the
payment of Rent, or (ii) avail itself of or exercise any or all of the
rights and remedies against Corral provided by law, in equity, or by the
Lease, and may proceed either against Corral alone or jointly against
Corral and Guarantor or against Guarantor alone without first proceeding or
exhausting any remedy or claim against Corral.
4. RETURN OF PAYMENTS. Guarantor agrees that, if at any time all or any
part of any payment made by Guarantor pursuant to this Guaranty and theretofore
applied by Purchaser to any Liabilities is rescinded or returned by Purchaser
for any reason whatsoever (including, without limitation, the insolvency,
bankruptcy, liquidation or reorganization of any party), then such Liabilities
shall, for the purposes of this Guaranty, be deemed to have continued in
existence to the extent of such payment, notwithstanding such application by
Purchaser, and this Guaranty shall continue to be effective or be reinstated, as
the case may be, as to such Liabilities, all as though such payment by Guarantor
and application by Purchaser had not been made. Guarantor does hereby further
agree that with respect to any payments made by Guarantor hereunder, Guarantor
shall not have any rights based on suretyship, subrogation or otherwise to stand
in the place of Purchaser so as to compete with Purchaser as a creditor of
Corral, until such time as Purchaser shall have been paid in full and Guarantor
hereby waives all such rights to the fullest extent permitted by law.
5. NO DISCHARGE. Guarantor agrees that the obligations, covenants and
agreements of Guarantor under this Guaranty shall not be affected or impaired by
any act of Purchaser, or any event or condition except the full, final and
unavoidable payment of all Liabilities and any other sums due hereunder.
Guarantor agrees that the liability of Guarantor hereunder shall not be
discharged or in any manner affected by: (i) any failure, omission, delay or
inadequacy, whether entire or partial, of Purchaser to exercise any right, power
or remedy regarding the Lease or to enforce or realize upon (or to make any
guarantor a party to the enforcement or realization upon) any of Purchaser's
security for the Lease,
NORTHPOINTE-REINSTATEMENTOFCONTRACT.02
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including, but not limited to, any impairment or release of such security by
Purchaser; (ii) the application of payments received from any source to the
payment of any obligation other than the Liabilities, even though Purchaser
might lawfully have elected to apply such payments to any part or all of the
Liabilities; (iii) the addition or release of any and all other guarantors,
obligor and other persons liable for the payment of the Liabilities, and the
acceptance or release of any and all other security for the payment of the
Liabilities; (iv) any assignment of the Lease or sublease of all or any portion
of Corral's premises; or (v) any distress or reentry by Purchaser or
dispossession of Corral or any action or remedy taken by Purchaser under the
Lease, or any failure to notify Guarantor of any default by Corral; all whether
or not Guarantor shall have had notice or knowledge of any act or omission
referred to in the foregoing clauses (i) through (v).
6. APPLICATION OF AMOUNTS RECEIVED. Any amounts received by Purchaser
from whatsoever source on account of any Liabilities may be applied by Purchaser
toward the payment of such Liabilities, and in such order of application, as
Purchaser may from time to time elect.
7. WAIVER. Guarantor expressly waives: (i) notice of the acceptance by
Purchaser of this Guaranty; (ii) notice of the existence, creation, payment or
nonpayment of the Liabilities; (iii) presentment, demand, notice of dishonor,
protest and all other notices whatsoever; and (iv) any failure by Purchaser to
inform Guarantor of any facts Purchaser may now or hereafter know about Corral,
the Lease or the Corral premises, it being understood and agreed that Purchaser
has no duty so to inform Guarantor of any circumstances bearing on the Lease and
this Guaranty. No modification or waiver of any of the provisions of this
Guaranty will be binding upon Purchaser except as expressly set forth in a
writing duly signed and delivered on behalf of Purchaser.
8. ENFORCEMENT COSTS. If: (i) this Guaranty is placed in the hands of an
attorney for enforcement or collection or is enforced or collected through any
legal proceeding; or (ii) an attorney is retained to represent Purchaser in any
proceeding (including, without limitation, any bankruptcy, reorganization,
receivership or other proceeding affecting creditors' rights) involving a claim
under or related to this Guaranty, then Guarantor shall pay to Purchaser, upon
demand, all attorneys' fees, costs and expenses, including, without limitation,
court costs and filing fees, and all other costs and expenses incurred in
connection therewith (all of which are referred to herein as "ENFORCEMENT
COSTS") in addition to all other amounts due hereunder.
9. GOVERNING LAW; INTERPRETATION. This Guaranty shall be governed by the
laws of the State of
Washington, without reference to the conflicts of law
principles of that state. The headings of Paragraphs in this Guaranty are for
convenience only and shall not be construed in any way to limit or define the
content, scope or intent of the provisions hereof. As used in this Guaranty, the
singular shall include the plural, and masculine, feminine and neuter pronouns
shall be fully interchangeable where the context so requires. If this Guaranty
is executed by more than one person or entity, then references to "Guarantor"
herein shall be deemed to refer to each such person or entity and the liability
of each such person or entity shall be joint and several, and the release by
Purchaser of any of them shall not release or affect in any manner the
obligations of any other of them, and this Guaranty shall not be revoked,
discharged or impaired as to any such persons or entities by reason of the death
or incapacity or insolvency of any other of them. If any provision of this
Guaranty, or any paragraph, sentence, clause, phrase or word, or the application
thereof, in any circumstances, is adjudicated by a court of competent
jurisdiction to be invalid, the validity of the remainder of this Guaranty shall
be construed as if such invalid part were never included herein. Time is of the
essence of this Guaranty. All payments to be made hereunder shall be made in
currency and coin of the United States of America which is legal tender for
public and private debts at the time of payment.
10. ENTIRE AGREEMENT. This Guaranty constitutes the entire agreement
between Guarantor and Purchaser with respect to the subject matter hereof and
supersedes all prior such agreements and understandings, both written and oral.
This Guaranty may not be modified or amended except by a
NORTHPOINTE-REINSTATEMENTOFCONTRACT.02
6
written instrument signed by Purchaser and Guarantor. If this Guaranty is
executed in several counterparts, each of those counterparts shall be deemed an
original, and all of them together shall constitute one and the same instrument.
11. SUCCESSORS AND ASSIGNS.
(a) This Guaranty shall bind Guarantor and the heirs, assigns,
successors, executors, administrators and legal and personal representatives of
Guarantor; provided, however, that Guarantor shall not be entitled to assign,
transfer or delegate its obligations hereunder. Regardless of whether this
Guaranty is executed by more than one person or entity, it is agreed that the
undersigned's liability hereunder is several and independent of any other
guaranties or other obligations at any time in effect with respect to the
Liabilities, and that each Guarantor's liability hereunder may be enforced
regardless of the existence, validity, enforcement or nonenforcement of any such
other guaranties or other obligations.
(b) This Guaranty shall inure to the benefit of and be enforceable by
Purchaser and Purchaser's beneficiaries, the officers, agents, representatives,
employees, partners, members, directors, officers and shareholders of each of
them, each of their respective successors and assigns, and each present or
subsequent mortgagee of the Property and its successors and assigns.
12. WAIVER OF JURY TRIAL BY GUARANTOR. Guarantor hereby waives the right
to trial by jury in any action or proceeding that hereafter may be instituted in
respect of this Guaranty.
13. NOTICES. Any notice, request, demand, instruction or other document to
be given or served hereunder or under any document or instrument executed
pursuant hereto shall be in writing and shall be delivered personally or sent by
United States registered or certified mail, return receipt requested, or by a
nationally recognized overnight express courier, postage prepaid and addressed
to the parties at their respective addresses set forth below, and the same shall
be effective upon receipt (or refusal of acceptance) if delivered personally or
two (2) business days after deposit in the mails, if mailed, or one (1) business
day after deposit with an overnight express courier. A party may change its
address for receipt of notices by service of a notice of such change in
accordance herewith.
If to Purchaser: Inland Real Estate Acquisitions, Inc.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
with a copy to: The Inland Real Estate Group
000x Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
If to Guarantor: Barclays Realty and Management Co.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
with a copy to: Xxxxxxx Coie
00000 X.X. Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the date and year first specified above.
GUARANTOR:
NORTHPOINT DELAWARE LLC, A Delaware limited liability
company
By:
------------------------------------
Name:
----------------------------
Its:
----------------------------
CHULA VISTA PLAZA LLC, a California limited liability
company
By:
------------------------------------
Name:
----------------------------
Its:
----------------------------
[ADD NOTARY XXXXXX]
XXXXXXXXXXX-XXXXXXXXXXXXXXXXXXXXXXX.00
0
