Exhibit 10.311
POST CLOSING AGREEMENT
THIS POST CLOSING AGREEMENT (this "Agreement") is made and entered into as
of the 9th day of August, 2004, by and between INLAND WESTERN LAWRENCEVILLE
XXXXXXXX, L.L.C., a Delaware limited liability company ("Purchaser"), and
XXXXXXX XXXXXXXX PARTNERS, L.L.C., a Florida limited liability company
("Seller"), in connection with the acquisition by Purchaser of that certain
property commonly known as The Village Shoppes at Xxxxxxxx Shopping Center,
Lawrenceville, Georgia (the "Property").
WHEREAS, Purchaser is acquiring the Property from Seller (the
"Transaction").
WHEREAS, in order to proceed with and consummate such acquisition and as a
condition to closing the Transaction, Purchaser requires that Seller agree to
the obligations set forth below, which are to be performed after such closing.
NOW, THEREFORE, for good and valuable consideration including the mutual
promises contained herein, the parties hereto agree as follows:
1. WARRANTIES. Seller's right, title and interest in, to and under the
roof warranty set forth on EXHIBIT A attached hereto and made a part hereof (the
"Warranty") was not assigned to Purchaser at the closing of the Transaction
because such Warranty may not be assigned or transferred without the prior
consent of the Warranty issuer. From and after the date of this Agreement,
Seller shall use its best efforts to obtain the aforementioned consent (upon the
receipt of which Seller shall assign such Warranty to Purchaser) or have the
Warranty reissued in the name of Purchaser. Seller shall be responsible for the
payment of any and all fees and costs in connection with obtaining any such
consent or the re-issuance of the Warranty. Seller shall, until the first to
occur of (i) the expiration of the Warranty and (ii) the date that the Warranty
is assigned to Purchaser (with any and all required consents) or reissued in the
name of Purchaser, cooperate with Purchaser, at no cost to Seller, with respect
to the enforcement of the terms and provisions of, and any and all claims under,
the Warranty.
2. CLOSE OUT MANUALS. Within fifteen (15) days of the date hereof,
Seller shall compile and deliver original "Close Out Manuals" including, with
respect to the Property, copies of warranties from the general contractor and
sub-contractors, product warranties from manufacturers of products, equipment
and components installed, and operating manuals pertaining to any and all
mechanical equipment (including HVAC), fire and safety systems, and sprinkler
systems.
3. INDEMNIFICATION. Seller agrees to indemnify and hold harmless
Purchaser, and each of their successors, assigns, officers, directors and
employees (each an "Indemnified Party" and collectively, the "Indemnified
Parties") harmless from any loss, cost or expense incurred by any Indemnified
Party, including costs and attorneys fees, ("Loss") as a result of Sellers'
failure to obtain the required documents or complete its obligations under this
Agreement, or any Loss that results from a certificate hereafter being false of
misleading in any material respect.
4. MISCELLANEOUS. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of Georgia. The invalidity or
unenforceability of any provision of
this Agreement shall not affect, modify or impair the validity and
enforceability of all other provisions of this Agreement. This Agreement shall
be binding on and shall inure to the benefit of the parties hereto and their
representatives, heirs, legatees, successors, and assigns; provided, however,
that Seller shall have no right whatsoever to assign its interest under this
Agreement and any such attempted assignment shall automatically be null and void
and of no force and effect, and shall be deemed a breach by Seller of its
obligations hereunder. No failure or delay by Purchaser in exercising any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege hereunder. No
change, amendment or modification of this Agreement shall be binding or
enforceable unless in writing and executed by the party to be bound thereby. The
covenants, agreements and indemnification provisions contained in this Agreement
shall be enforceable notwithstanding the closing of the Transaction. In the
event of litigation with respect to any portions of this Agreement, the
prevailing party will be entitled to collect all reasonable legal fees incurred
in connection with such litigation from the non-prevailing party. Purchaser
shall have all remedies available at law and in equity on account of a default
by Seller under this Agreement. Time is of the essence of this Agreement and the
terms hereof. This Agreement maybe signed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Post Closing and
Indemnity Agreement effective as of the first date written above.
SELLER:
XXXXXXX XXXXXXXX PARTNERS, LLC, a
Florida limited liability company
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Manager
PURCHASER:
INLAND WESTERN LAWRENCEVILLE XXXXXXXX,
L.L.C., A Delaware limited liability company
By: Inland Western Retail Real Estate Trust, Inc.,
A Maryland corporation, its sole member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Asst. Secretary
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EXHIBIT A
WARRANTY
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