EXHIBIT 10.192
LAKEWOOD TOWNE CENTER
AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS
MBK NORTHWEST, LLC,
a Washington limited liability company
Seller,
and
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
Buyer
TABLE OF CONTENTS
Section Page
Number Title Number
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1. DEFINED TERMS...................................................................1
2. PURCHASE PRICE..................................................................6
2.1 Purchase Price..........................................................6
2.2 Payment of Purchase Price...............................................6
2.3 Xxxxxxx Money Deposit...................................................6
2.4 Escrow and Leasing Agreement............................................7
3. INSPECTION OF PROJECT BY BUYER..................................................7
3.1 Building Inspection and Documents.......................................7
3.1.1 Title Commitment..............................................7
3.1.2 Survey........................................................7
3.1.3 Leases and Service Contracts..................................8
3.1.4 Schedule of Personal Property.................................8
3.1.5 Operating Statements and Budget...............................8
3.1.6 Rent Roll.....................................................8
3.1.7 Licenses and Permits..........................................8
3.1.8 Plans and Specifications......................................8
3.1.9 Tax and Utility Bills.........................................8
3.1.10 Soil Tests and Reports........................................8
3.1.11 Inspection Reports............................................8
3.1.12 Warranties and Guaranties.....................................8
3.1.13 Financial Statements..........................................8
3.1.14 Books and Records.............................................8
3.1.15 Government Reports, Correspondence and Notices................9
3.2 Back-Up Information.....................................................9
3.3 Return of Building Documents............................................9
3.4 Assignment of Service Contracts.........................................9
3.5 License to Enter........................................................9
4. CONDITIONS TO CLOSING..........................................................10
4.1 Buyer's Conditions to Closing..........................................10
4.1.1 Condition of Title...........................................10
4.1.2 Survey Approval and Recertification..........................11
4.1.3 Inspection Approval..........................................11
4.1.4 Due Diligence Approval.......................................11
4.1.5 Tenant Estoppels.............................................11
4.1.6 Seller's Deliveries..........................................12
4.1.7 Representations and Warranties...............................12
4.1.8 Seller's Authorization.......................................12
4.1.9 Title Policy.................................................12
4.1.10 No Material Change...........................................12
4.1.11 Seller's Covenants...........................................13
4.1.12 Election to Purchase.........................................13
4.1.13 Theatre Lease Amendment......................................13
4.1.14 Restrictive Use Declaration..................................13
4.2 Failure of Conditions..................................................13
4.3 Seller's Conditions....................................................14
4.3.1 Representations and Warranties...............................14
4.3.2 Buyer's Deliveries...........................................14
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4.3.3 Authorization................................................14
4.3.4 Mutual Conditions............................................14
4.3.5 Seller's Title Policy........................................14
4.4 Failure of Seller Conditions...........................................14
5. COVENANTS......................................................................15
5.1 Seller's Covenants.....................................................15
5.1.1 Leasing Activities...........................................15
5.1.2 New Contracts................................................16
5.1.3 Payment of Obligations.......................................16
5.1.4 Insurance....................................................16
5.1.5 Compliance with Laws.........................................16
5.1.6 Remove Liens.................................................16
5.1.7 Tenant Estoppels.............................................16
5.1.8 Operating Reports............................................17
5.1.9 Maintenance..................................................17
5.1.10 Personal Property............................................17
5.1.11 Completion of Construction...................................17
5.1.12 Cooperation with Buyer's Audit...............................17
5.2 Buyer's Covenants......................................................17
5.2.1 Tenant Contacts..............................................17
5.2.2 Seller's Development Activities..............................17
6. CLOSING........................................................................18
6.1 Agreement to Constitute Escrow Instructions............................18
6.2 Closing Date; Closing..................................................18
6.3 Items to be Delivered by Seller........................................18
6.4 Items to be Delivered by Buyer.........................................20
6.5 Directions to Title Insurer............................................20
6.6 Prorations and Other Adjustments.......................................20
6.7 Items Not to be Prorated...............................................24
6.8 Security Deposits......................................................24
6.9 Possession.............................................................24
6.10 Closing Costs..........................................................24
6.10.1 Seller's Closing Costs.......................................24
6.10.2 Buyer's Closing Costs........................................25
6.10.3 Other Closing Costs..........................................25
7. WARRANTIES.....................................................................25
7.1 Representations and Warranties of Seller...............................25
7.1.1 Leases.......................................................25
7.1.2 Rent Roll and Tenants........................................25
7.1.3 Authority....................................................26
7.1.4 Conformance with Laws........................................26
7.1.5 Building Documents...........................................26
7.1.6 No Bankruptcy Proceedings....................................26
7.1.7 No Default...................................................26
7.1.8 No Hazardous Wastes..........................................27
7.1.9 No Litigation................................................27
7.1.10 No Notices...................................................27
7.1.11 No Undisclosed Assessments...................................27
7.1.12 No Violation of Other Agreements.............................27
7.1.13 Operating Statements.........................................28
7.1.14 Project Construction.........................................28
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7.1.15 Service Contracts............................................28
7.1.16 Utilities Available..........................................28
7.1.17 Zoning and Other Governmental Information....................28
7.1.18 Permits and Authorizations...................................28
7.1.19 No Purchase Rights...........................................28
7.2 Representations and Warranties of Buyer................................29
7.2.1 Authority; Required Approvals................................29
7.2.2 No Conflicts.................................................29
7.3 Survival of Representations and Warranties.............................29
7.4 "AS IS"; "WHERE IS"....................................................29
8. TERMINATION OF AGREEMENT.......................................................30
8.1 Termination............................................................30
8.2 Liquidated Damages.....................................................30
9. REAL ESTATE COMMISSION.........................................................31
10. ASSIGNMENT.....................................................................31
11. MISCELLANEOUS..................................................................31
11.1 Material Damage or Condemnation........................................31
11.2 Attorneys' and Other Fees..............................................32
11.3 Notices................................................................32
11.4 Time of Essence........................................................33
11.5 Waiver or Modification; Not Recordable.................................33
11.6 Successors and Assigns; Survival; Joint and Several Liability..........33
11.7 Number and Gender......................................................33
11.8 Governing Law..........................................................34
11.9 Construction...........................................................34
11.10 Integration of Other Agreements........................................34
11.11 Like-Kind Exchange.....................................................34
11.12 Indemnification by Seller..............................................34
11.13 Duplicate Originals; Counterparts......................................35
11.14 Non-Waiver of Rights...................................................35
11.15 Days...................................................................35
11.16 Incorporation of Exhibits..............................................35
11.17 IRS Form 1099-S........................................................36
11.18 Further Assurances.....................................................36
11.19 Merger.................................................................36
11.20 Confidentiality........................................................36
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EXHIBITS:
Exhibit "A" - Assignment of Intangible Property
Exhibit "B" - Assignment of Leases
Exhibit "C" - Assignment of Service Contracts
Exhibit "D" - Xxxx of Sale
Exhibit "E" - Legal Description of Land
Exhibit "E-1" - Site Plan
Exhibit "F" - Notice to Tenants
Exhibit "G" - Rent Roll
Exhibit "H" - Escrow and Leasing Agreement
Exhibit "I" - Tenant Estoppel
Exhibit "I-1" - Seller Estoppel
Exhibit "J" - Statutory Warranty Deed
Exhibit "K" - Affidavit of Non-Foreign Person Status
Exhibit "L" - Certificate of Truth of Representations and Warranties (Seller)
Exhibit "L-1" - Certificate of Truth of Representations and Warranties (Buyer)
Exhibit "M" - Restrictive Use Declaration
Exhibit "N" - Theatre Lease Amendment
Exhibit "O" - Master Lease
Schedule 7.1.1 Unleased Space
Schedule 7.1.2 Unfinished/Defective Tenant Improvements
Schedule 7.1.8 Environmental Matters
Schedule 7.1.9 Litigation
Schedule 7.1.18 Permits, Authorizations
(iv)
AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY AND ESCROW INSTRUCTIONS
(Lakewood- Power Center)
THIS AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY AND ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of May ___, 2004, by and
between MBK NORTHWEST, LLC, a
Washington limited liability company ("Seller"),
and, INLAND REAL ESTATE ACQUISITIONS, INC., an Illinois corporation ("Buyer"),
with reference to the following facts;
A. Seller owns the "Project" (defined in SECTION 1 below) which
consists of that certain shopping center consisting of approximately five
hundred seventy-eight thousand eight hundred forty-three (578,843) square feet
of GLA (defined below) that constitutes a portion of a mixed use retail/office
area commonly known as Lakewood Towne Center located in the City of Lakewood,
County of Xxxxxx, State of
Washington and is depicted in the Site Plan attached
hereto as EXHIBIT "E-1" (the "Site Plan"). The Project is referred to by Seller
as the "Power Center" portion of Lakewood Towne Center. Seller also owns the
"Neighborhood Center" (defined below) that is a part of Lakewood Towne Center
but is NOT a part of the Project and other portions of Lakewood Towne Center
are owned by Target Corporation (which owns the "Target Parcel") and The
Xxxxxxxx Estate (which owns the "Marshalls Parcel").
B. Seller hereby agrees to sell, transfer, assign and convey the
Project to Buyer, and Buyer agrees to purchase the Project from Seller, in
accordance with the terms, provisions and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, conditions and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, the Project, on the following terms and conditions:
1. DEFINED TERMS
For the purposes of this Agreement defined terms, as indicated by
initial capital letters, shall have the meanings set forth in this Agreement.
The following terms shall have the meanings indicated in this Article 1:
ASSIGNMENT OF INTANGIBLE PROPERTY. "Assignment of Intangible Property"
shall mean an assignment of the Intangible Property executed by Seller in favor
of Buyer in the form of EXHIBIT "A" attached hereto.
ASSIGNMENT OF LEASES. "Assignment of Leases" shall mean an assignment
of the Leases executed by Seller in favor of Buyer, together with an assumption
of the Leases executed by Buyer in favor of Seller, in the form of EXHIBIT "B"
attached hereto.
ASSIGNMENT OF SERVICE CONTRACTS. "Assignment of Service Contracts"
shall mean an assignment of the Service Contracts (and certain other agreements,
documents, and rights) executed by Seller in favor of Buyer, together with an
assumption of the Service Contracts executed by Buyer in favor of Seller, in the
form of EXHIBIT "C" attached hereto.
BASIC RENT ROLL. "Basic Rent Roll" shall mean a "Rent Roll" (defined
below) containing data effective as of April 30, 2004. Xxxx of Sale.
XXXX OF SALE. "Xxxx of Sale" shall mean a xxxx of sale conveying the
Personal Property executed by Seller in favor of Buyer in the form of EXHIBIT
"D" attached hereto.
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BUILDING DOCUMENTS. "Building Documents" shall have the meaning set
forth in SECTION 3.1.
BUYER'S CONDITIONS. "Buyer's Conditions" shall have the meaning set
forth in SECTION 4.1.
BUYER'S TERMINATION NOTICE. "Buyer's Termination Notice" shall have
the meaning set forth in SECTION 4.1.12.
CAM CHARGES. "CAM Charges" shall have the meaning set forth in SECTION
6.6.1.6.
CAM ESTIMATES. "CAM Estimates" shall have the meaning set forth in
SECTION 6.6.1.6.
CHICAGO TITLE. "Chicago Title" shall mean Chicago Title Insurance
Company.
CLOSING. "Closing" shall mean the recordation of the Deed in the
Auditor's Records of Xxxxxx County,
Washington, and the delivery of the other
documents required to be delivered hereunder and the payment by Buyer to Seller
of the Purchase Price for the Project.
CLOSING DATE. "Closing Date" shall mean the date on which the Closing
occurs pursuant to SECTION 6.2 hereof.
CLOSING OFFICE. "Closing Office" shall mean the offices of the Escrow
Holder, or such other place as Buyer and Seller shall designate.
CONTRACT PERIOD. "Contract Period" shall mean the period commencing
upon the Effective Date and ending upon the first to occur of the Closing or the
termination of this Agreement.
XXXXX. "XXXXX" shall mean that certain Restated and Amended
Construction, Operation and Reciprocal Easement Agreement dated as of June 27,
2001, and recorded in the Official Records of the Xxxxxx County Auditor under
Recording No. 200106290842, as amended by that certain First Amendment to
Restated and Amended Construction, Operation and Reciprocal Easement Agreement
dated as of October 19, 2001, and recorded in the Official Records of the Xxxxxx
County Auditor under Recording No. 200110190305.
DEED. "Deed" shall mean a special warranty deed conveying the Land and
the Improvements, executed and acknowledged by Seller in favor of Buyer, in the
form of EXHIBIT "I" attached hereto.
XXXXXXX MONEY DEPOSIT. "Xxxxxxx Money Deposit" shall have the meaning
specified in SECTION 2.3.
EFFECTIVE DATE. "Effective Date" shall mean the date this Agreement
has been executed by Seller and Buyer, a fully executed copy thereof has been
delivered to Escrow Holder and Escrow Holder has delivered a fully executed copy
of this Agreement to Seller and Buyer.
END OF THE INSPECTION PERIOD. "End of the Inspection Period" shall
mean June 2, 2004.
ENVIRONMENTAL REPORTS. "Environmental Reports" shall have the meaning
set forth in SECTION 7.1.8.
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ESCROW HOLDER. "Escrow Holder" shall mean the Chicago, Illinois,
office of Chicago Title Insurance Company, which office is located at 000 X.
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Attention: Xxxxx Xxxxxx).
ESCROW AND LEASING AGREEMENT. "
Escrow and Leasing Agreement" shall
mean that certain agreement referenced in SECTION 2.4 of this Agreement with
respect to certain unleased space, certain leased but unoccupied space within
the Project, the Theatre Related Improvements and the costs related thereto,
which Agreement shall be substantially in the form attached hereto as EXHIBIT
"H."
EXCEPTION DOCUMENTS. "Exception Documents" shall mean the documents
referred to in the Title Commitment creating exceptions to title or encumbrances
against the Project.
GLA. "GLA" shall mean the gross leasable area of the space being
measured as measured from the outside of exterior walls or the center of any
common walls, as the case may be, without deduction for columns or other
structural elements within the space being measured. The Leases provide for
certain exclusions from the calculation of GLA of the Project.
HAZARDOUS SUBSTANCES. "Hazardous Substances" shall have the meaning
set forth in SECTION 7.1.8.
IMPROVEMENTS. "Improvements" shall mean all buildings, structures,
parking lots, signs, walkways, fixtures and equipment, landscaping, apparatus
and appliances, water banks and channels, if any, and all other improvements
located at or on or affixed to the Land, except for any fixtures and equipment
owned by Tenants.
INSPECTION PERIOD. "Inspection Period" shall mean the period of time
commencing on the later of (i) the date the Building Documents have been
delivered to Buyer, and (ii) the Effective Date, and ending on the End of the
Inspection Period.
INTANGIBLE PROPERTY. "Intangible Property" shall mean all licenses,
permits, certificates of occupancy, Tenant files, and to the extent transferable
by Seller, warranties and guaranties, all awards hereafter made or to be made to
Seller relating to the Land or the Improvements or any part thereof by reason of
a taking by eminent domain or conveyance in lieu thereof, and all similar items
owned by Seller and used or designed for use in connection with the Project,
including without limitation plans, specifications, maps, drawings, and other
similar documents and/or items relating to the Project, as well as Seller's
non-exclusive right, if any, to use the words "Lakewood Towne Center" in
connection with the Project.
LAND. "Land" shall mean all that certain land described in EXHIBIT "E"
attached hereto, together with all appurtenances thereto, including, without
limitation, all easements and rights to use adjacent properties, any land lying
in the bed of any street, road or avenue, open or proposed, in front of, within
or adjoining or adjacent to the land described in EXHIBIT "E".
LEAD TENANTS. "Lead Tenants" shall mean the Tenants using the
following trade names at the Project: Xxxxxxxxxx'x, G.I. Joes, Xxxxxx & Noble,
Bed Bath & Beyond, Dollar Store, Office Depot, Burlington Coat Factory,
PetsMart, Loews Cineplex Odeon Theatre, 24 Hour Fitness, Xxxx Dress for Less,
Old Navy, Michaels, Old Country Buffet and Pier 1 Imports.
LEASE. "Lease" shall mean each of the leases for space within the
Project (other than temporary or seasonal tenancies), all of which are listed on
the Rent Roll.
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LEASING GUIDELINES. "Leasing Guidelines" shall mean the leasing
parameters set forth on EXHIBIT "B" to the
Escrow and Leasing Agreement attached
hereto as EXHIBIT "H."
LEGAL LOTS. "Legal Lots" shall have the meaning set forth in SECTION
4.1.16.
MASTER LEASE. "Master Lease" shall mean that certain agreement
referenced in SECTION 2.4 of this Agreement with respect to certain unleased
space and certain leased but unoccupied space within the Project and the costs
related thereto, which Agreement shall be in the form attached hereto as EXHIBIT
"O."
NEIGHBORHOOD CENTER. "Neighborhood Center" means that certain real
property owned by Seller and located adjacent to the Project but is NOT part of
the Project, as shown on the Site Plan.
NOTICES TO TENANTS. "Notices to Tenants" shall mean notices to each
Tenant substantially in the form of EXHIBIT "F" attached hereto, completed and
executed by Seller as of the Closing Date.
ORREA. ORREA shall mean that certain Operation, Restriction and
Reciprocal Easement Agreement dated as of May 10, 1988, and recorded in the
Official Records of the Xxxxxx County Auditor under Recording No. 8805100535, as
amended by that certain Amendment No. 1 to Operation, Restriction and Reciprocal
Easement Agreement dated as of July 6, 1989, and recorded in the Official
Records of the Xxxxxx County Auditor under Recording No. 8907140366, Second
Amendment to Operation, Restriction and Reciprocal Easement Agreement dated
March, 1991, and recorded in the Official Records of the Xxxxxx County Auditor
under Recording No. 9106270353, Third Amendment to Operation, Restriction and
Reciprocal Easement Agreement dated September 26, 1997, and recorded in the
Official Records of the Xxxxxx County Auditor under Recording No. 9902180168,
Fourth Amendment to Operation, Restriction and Reciprocal Easement Agreement
dated as of June 26, 2001, and recorded in the Official Records of the Xxxxxx
County Auditor under Recording No. 200106290843, and Fifth Amendment to
Operation, Restriction and Reciprocal Easement Agreement dated as of October 19,
2001, and recorded in the Official Records of the Xxxxxx County Auditor under
Recording No. 200110190304.
PERMITTED TIDE EXCEPTIONS. "Permitted Title Exceptions" shall have the
meaning set forth in SECTION 4.1.1.
PERSONAL PROPERTY. "Personal Property" shall mean all tools,
equipment, supplies, fixtures not deemed to be or constituting realty,
furniture, furnishings and all other items of personal property owned by Seller
and that are used in connection with the ownership or operation of the Project.
A list of the Personal Property is to be attached to the Xxxx of Sale.
PLANS AND SPECIFICATIONS. "Plans and Specifications" shall mean the
plans and specifications for the Project, including as-built drawings and
specifications for the Improvements to the extent in Seller's possession or
control.
PROJECT. "Project" shall mean all of Seller's right, title and
interest in and to the Land, the Improvements, the Intangible Property, the
Service Contracts, the Personal Property and the Leases, collectively, and any
and all rights appurtenant thereto. The Project does not include certain other
real property owned by Seller in the vicinity of the Project, which also
constitute portions of Lakewood Towne Center.
PURCHASE PRICE. "Purchase Price" shall have the meaning set forth in
SECTION 2.1 below.
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REAL ESTATE TAX AFFIDAVIT. "Real Estate Tax Affidavit" shall have the
meaning set forth in SECTION 6.3.15.
READERBOARD SIGN CONTRACT. "Readerboard Sign Contract" shall mean that
certain Rental Agreement with Tube Art Displays, Inc. dated December 10, 2001
relating to the electronic readerboard located on Bridgeport Way adjacent to the
Project.
RENT ROLL. "Rent Roll" shall mean a schedule setting forth various
particulars respecting each Lease and any temporary or seasonal tenancies,
including the information set forth on EXHIBIT "G" attached hereto.
RESTRICTIVE USE DECLARATION. "Restrictive Use Declaration" shall have
the meaning set forth in SECTION 4.1.14, which Declaration shall be
substantially in the form attached hereto as EXHIBIT "M."
SELLER ESTOPPEL. "Seller Estoppel" shall mean a certification duly
executed by Seller, in the form of EXHIBIT "I-1" attached hereto.
SELLER'S CONDITIONS. "Seller's Conditions" shall have the meaning set
forth in SECTION 4.3.
SERVICE CONTRACTS. "Service Contracts" shall mean any and all
currently effective written or oral service, maintenance, janitorial, HVAC,
landscaping, trash removal, parking lot maintenance, parking, brokerage, leasing
commission, advertising or other contracts, arrangements or agreements affecting
the Project (other than Leases).
SELLER'S TITLE POLICY. "Seller's Title Policy" shall mean a policy of
title insurance comparable to the Title Policy naming Seller as the insured with
respect to the transaction contemplated hereunder.
SUBSEQUENT LEASING PERIOD. "Subsequent Leasing Period" shall mean the
period between the Closing Date and the last day of the eighteenth (18th) full
calendar month thereafter.
SURVEY. "Survey" shall mean an ALTA survey of the Land and the
Improvements.
TENANT. "Tenant" shall mean a lessee of a portion of the Project
pursuant to a Lease.
TENANT ESTOPPEL. "Tenant Estoppel" shall mean a certification duly
executed by a Tenant, in the form of EXHIBIT "I" attached hereto or such other
form, if any, as the Tenant is required to deliver under its Lease.
THEATRE RELATED IMPROVEMENTS. "Theatre Related Improvements" shall
mean the remodeling of the Xxxx'x Cineplex Odeon premises front exterior facade
and demolition of the adjoining food court space and construction of an exterior
paved parking area in lieu thereof pursuant to plans and specifications to be
prepared by Seller and approved by Buyer, which approval shall not be
unreasonably withheld, conditioned or delayed.
TITLE COMMITMENT. "Title Commitment" shall mean a binder, preliminary
title report or commitment issued by the Title Insurer (and Chicago Title with
respect to co-insurance) to Buyer providing for the issuance, at the Closing, to
Buyer of the Title Policy.
TITLE INSURER. "Title Insurer" shall mean Transnation Title Insurance
Company, Inc., whose address is 6111 000 Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000
(Attention: Xx. Xxxxx Xxxxx).
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TITLE POLICY. "Title Policy" shall mean an ALTA (extended coverage)
Owner's Policy of Title Insurance (including mechanic's lien coverage) (Form
B-1970), dated the date and time of Closing and with liability in the amount of
the Purchase Price, insuring Buyer as owner of good, marketable and indefeasible
fee title to the Land and Improvements, subject only to the Permitted Title
Exceptions, and including affirmative insurance (by endorsement or otherwise)
that the property described therein (that is, the Land) is the same as is
depicted on the Survey and that the Improvements are located thereon, and
including such other endorsements as are required by Buyer after Buyer's review
of the Survey and the Title Commitment. The Title Policy shall include
co-insurance issued by Chicago Title for fifty-five percent (55%) of the Title
Policy's coverage limits.
TITLE COMMENT DATE. "Title Comment Date" shall have the meaning set
forth in SECTION 4.1.1.
WORK IN PROCESS. "Work in Process" shall mean, collectively, (i)
completion of tenant improvements as required by the
Escrow and Leasing
Agreement, and (ii) the Theatre Related Improvements.
2. PURCHASE PRICE
2.1 PURCHASE PRICE.
The purchase price for the Project (the "Purchase Price")
shall be Eighty-One Million One Hundred Thousand Dollars ($81,100,000.00).
Seller and Buyer agree that none of the Purchase Price is allocated to the
Personal Property.
2.2 PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be payable all in cash (by same day
federal funds wire transfer) at the Closing. Buyer shall deliver the Purchase
Price to Escrow Holder by same day federal funds wire transfer on the scheduled
Closing Date.
2.3 XXXXXXX MONEY DEPOSIT.
Seller and Buyer agree to cause an escrow (the "Escrow") to be
opened with the Escrow Holder. Within three (3) business days after the
Effective Date, Buyer shall deposit with Escrow Holder One Million Dollars
($1,000,000) by wire transfer of immediately available funds (the "Deposit").
The Deposit, together with any interest earned thereon, shall be the "Xxxxxxx
Money Deposit." If the Deposit is not timely made by the applicable date for
such Deposit, then this Agreement shall automatically terminate and be of no
further force or effect whatsoever. Any funds delivered to Escrow Holder,
including without limitation the Deposit, shall be deposited by Escrow Holder in
a money market fund or account, which pays interest or dividends, in Escrow
Holder's name separate from Escrow Holder's personal or other business accounts.
Interest accruing on the Xxxxxxx Money Deposit, if any, shall be held for the
benefit of the party entitled to receive the Xxxxxxx Money Deposit, which party
shall pay any income taxes thereon. If so directed by Buyer, the Deposit shall
apply towards the payment of the Purchase Price. The taxpayer identification
numbers of Seller and Buyer are set forth on the signature page of this
Agreement. The Escrow shall be opened and maintained for the purpose of holding
and disbursing monetary deposits and documents evidencing monetary amounts as
directed by Buyer and Seller, and Escrow Holder is hereby directed to disburse
funds held by Escrow Holder in accordance with the terms and provisions of this
Agreement, or as otherwise directed in a writing signed by both Buyer and
Seller. These instructions shall be irrevocable and shall supersede any
conflicting provision in Escrow Holder's general conditions or in any escrow
instructions executed upon Escrow Holder's request. The Xxxxxxx Money
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Deposit shall be subject to the provisions of ARTICLE 8 hereof. If this
Agreement is terminated by Buyer prior to the End of the Inspection Period,
Escrow Holder shall return the Xxxxxxx Money Deposit, less Buyer's share of
Escrow termination costs, to Buyer in accordance with Buyer's unilateral
instructions.
2.4
ESCROW AND LEASING AGREEMENT.
Seller and Buyer acknowledge that the Purchase Price is based,
in part, on all of the GLA of the Project being leased and occupied by Tenants
that have commenced payments of full base rent and common area charges and other
additional rent payments pursuant to their respective leases. The current leased
and occupancy level of the Project is, and on the Closing Date may be, less than
all of the GLA of the Project and, accordingly, Seller and Buyer agree to enter
into the Master Lease and
Escrow and Leasing Agreement concurrently with the
Closing. Pursuant to such Agreements, during the Subsequent Leasing Period
Seller is to coordinate all leasing activities with respect to vacant space
within the Project existing as of the Closing Date until Tenants for such space
have commenced paying rent (the "Required Leasing Level"), including negotiation
of leases and construction of tenant improvements. The amount to be deposited in
the Escrow Account under the
Escrow and Leasing Agreement shall be deposited
into such Account on the Closing Date by Seller. The amount of the Escrow
Account and the conditions for disbursement thereof will be set forth in the
Escrow and Leasing Agreement.
3. INSPECTION OF PROJECT BY BUYER
3.1 BUILDING INSPECTION AND DOCUMENTS.
Seller agrees to assist and cooperate with Buyer in obtaining
access to the Project and documents relating thereto for the purpose of Buyer's
inspection. Subject to any contractual rights of any Tenant to deny access to
all or any portion of the Project, Seller agrees to provide Buyer and Buyer's
agents, architects, engineers, other consultants and employees access to the
Project to inspect each and every part thereof subject to the provisions of
SECTION 3.5 hereof. Buyer shall have the right, through Buyer's agents,
consultants and employees, to contact the Tenants subject to (i) Buyer giving
Seller prior written or telephonic notice of any meetings or telephone calls
with Tenants and an opportunity for Seller or Seller's agents, consultants or
employees to participate in any such meetings or telephone calls, (ii) Buyer
promptly delivering to Seller copies of all correspondence or other written
communications between Buyer and any Tenants, and (iii) upon request of Seller,
Buyer advising Seller of the details of any material or significant telephone or
other communications with Tenants.
To the extent Seller has not already done so, within three
(3) business days after the Effective Date, Seller shall deliver to Buyer copies
of the Leases, Service Contracts, and the documents listed in SECTIONS 3.1.1,
3.1.2, 3.1.5, 3.1.6, 3.1.9 AND 3.1.10 below and Seller shall either deliver
copies to Buyer, or make available to Buyer at the property management office at
the Project, the other documents and records listed below relating to the
Project (collectively "Building Documents") for Buyer to inspect
(notwithstanding anything to the contrary set forth herein, Seller shall deliver
copies of such items to Buyer upon Buyer's request that Seller do so if Seller
can reasonably accommodate Buyer's request, rather than only making copies
available for Buyer's review):
3.1.1 TITLE COMMITMENT. The Title Commitment together with
legible copies of all recorded documents referenced therein.
3.1.2 SURVEY. The most recent ALTA survey of the Property
(the "Existing Survey") in Seller's possession or control.
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3.1.3 LEASES AND SERVICE CONTRACTS. Copies of all Leases
and Service Contracts, as such documents may be amended. Seller shall make
available for Buyer's review all pertinent correspondence relating to the Leases
or Service Contracts, including any and all Tenant correspondence files and
other similar items.
3.1.4 SCHEDULE OF PERSONAL PROPERTY. A current schedule of
the Personal Property describing in detail the Personal Property. Seller also
agrees to provide Buyer with an updated copy of the schedule with any changes
thereto noted, recertified as of the Closing Date, which updated copy shall be
attached as Schedule "D-1" to the Xxxx of Sale.
3.1.5 OPERATING STATEMENTS AND BUDGET. Income and expense
statements for the Project for the period ending December 31, 2003, and monthly
reports for periods thereafter, in each case prepared from the books and records
of the Project; and the operating budget for the Project for the 2004 calendar
year.
3.1.6 RENT ROLL. The most current Rent Roll available to
Seller and Rent Rolls for calendar years 2002 and 2003.
3.1.7 LICENSES AND PERMITS. A list and copies of all
zoning compliance and similar letters or documents regarding compliance with
zoning and subdivision requirements, licenses, building and other permits and
all certificates of occupancy and similar documents required in connection with
the Project and/or the maintenance or operation thereof in the possession of, or
reasonably available to, Seller.
3.1.8 PLANS AND SPECIFICATIONS. Copies of the Plans and
Specifications to the extent in Seller's possession or control.
3.1.9 TAX AND UTILITY BILLS. Copies of (i) the current tax
xxxx(s) or notice(s) affecting the Project, (ii) tax bills for calendar years
2002 and 2003, and (iii) any notices of proposed increases or changes in the
assessed value of the Project. Copies of utility bills for the Project paid for
by Seller are available for review by Buyer at the property manager's office at
the Project.
3.1.10 SOIL TESTS AND REPORTS. Soil and geological tests
and reports relating to the Project.
3.1.11 INSPECTION REPORTS. Inspection reports relating to
or referring to the construction and/or maintenance of the Improvements,
including environmental, asbestos, lead paint, termite, earthquake, engineering,
ADA, architectural and similar reports to the extent in Seller's possession or
control, including without limitation, the Environmental Reports listed in
SCHEDULE 7.1.8 hereto.
3.1.12 WARRANTIES AND GUARANTIES. Copies of any and all
currently effective written warranties and/or guaranties pertaining to the
landscaping, roofs, plumbing, mechanical, electrical and heating and air
conditioning systems, parking lots and equipment that are part of the Project.
3.1.13 FINANCIAL STATEMENTS. Copies of financial
statements, financial information, and other information concerning or relating
to each Tenant to the extent in Seller's possession or control.
3.1.14 BOOKS AND RECORDS. Seller shall make available for
Buyer's review and photocopying, all other books and records in Seller's
possession or control covering the operations of the Project for periods
commencing with calendar year 2002, including, without limitation, monthly
operating statements, capital expenditure records, cash receipt journals,
account receivable aging reports, occupancy reports, common area expense
reconciliations, and any and all invoices, receipts, and other items relating to
the operation, repair, maintenance or management of the Project.
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3.1.15 GOVERNMENT REPORTS, CORRESPONDENCE AND NOTICES.
Copies of (i) the most current report, if any, with respect to each part of the
Project from each governmental body having jurisdiction over any part of the
Project, and (ii) a list and copies of any notices of all building, health and
safety violations with respect to the Project received by Seller since January
1, 2002.
3.2 BACK-UP INFORMATION.
Seller shall deliver to Buyer or provide Buyer access to,
within five (5) days, but in no event less than three (3) business days,
following the written request of Buyer, such back-up information and documents
relating to the operating records of Seller with respect to the Project which
are reasonably necessary for the ownership, use, operation or management of the
Project, and which are in the possession or reasonable control of Seller.
3.3 RETURN OF BUILDING DOCUMENTS.
If this Agreement is terminated for any reason, Buyer shall
use Buyer's good faith efforts to return to Seller the Building Documents that
Buyer has received from or through Seller within ten (10) days following such
termination.
3.4 ASSIGNMENT OF SERVICE CONTRACTS.
Except for the Readerboard Sign Contract which shall be
assumed by Buyer at the Closing, Buyer shall have the option with respect to
each Service Contract to either (i) direct Seller to assign Seller's obligations
thereunder to Buyer or (ii) direct Seller to terminate such Service Contract as
of, or as soon as possible after, the Closing Date in accordance with the terms
of the applicable Service Contract; provided, however, that Buyer's rights
shall be further subject to the rights, if any, of other parties to any Service
Contract to refuse to allow Seller to assign said Service Contract to Buyer. Any
Service Contracts which are not to be assigned by Seller as herein provided
shall be terminated by Seller as provided below in this SECTION 3.4, and Seller
shall indemnify and hold Buyer harmless from and of any obligation, claim,
demand, loss, liability, cause of action, cost and expense (including reasonable
attorneys' fees), with respect to such Service Contracts, including any and all
termination and other like fees, other than for matters relating to periods
between the Closing Date and the date any Service Contracts are terminated as
provided below. Buyer shall make its election with respect to termination of
Service Contracts under this SECTION 3.4 at least seven (7) business days prior
to the Closing with respect to any Service Contracts which Buyer directs Seller
are to be terminated on, or as soon as possible after, the Closing Date. Seller
leases a 2002 Ford F-150 vehicle (the "Ford F-150 Lease"). Seller shall retain
the Ford F-150 lease and the vehicle.
3.5 LICENSE TO ENTER.
Subject to the provisions of this SECTION 3.5, Seller hereby
agrees that Buyer and/or Buyer's architects, engineers, agents, representatives,
contractors and subcontractors (collectively, "Buyer's Inspecting
Representatives") may enter upon the Project prior to the Closing in order to
conduct reasonable engineering studies, environmental tests and studies, soil
tests and other tests and studies provided that Buyer shall be responsible for
any damage caused thereby to the Property and Buyer shall not disturb Tenants.
Buyer shall be responsible for any liability, costs, claims, damage or injury
caused by such entry and shall keep the Property free of any and all liens
arising therefrom. Buyer shall indemnify and hold Seller harmless against such
liability, costs, claims, demands, damage or injury. Buyer shall maintain
commercial general liability insurance policies to cover their activities on the
Project pursuant to this Section in the amount of $1,000,000. Buyer agrees to
cause Seller to be named as an additional insured on the commercial general
liability insurance policy maintained by
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Buyer with respect to Buyer and Buyer's Inspecting Representatives who conduct
physical inspections of the Project other than visual inspections of portions of
the Project open generally to Tenants' customers. Buyer shall deliver to Seller
evidence of compliance with such insurance requirements as requested by Seller
prior to entering the Project for purposes requiring such insurance coverage.
The provisions of this Section shall survive the Closing and the termination of
this Agreement, as applicable. Buyer shall give Seller prior written or
telephonic notice (including telephonic notice to Seller's on-site management
office (000) 000-0000), and Seller shall have the right to reasonably approve
the scheduling of: (1) access by Buyer and Buyer's Inspecting Representatives to
any portions of the Project that are not open to Tenants' customers generally,
and (2) any invasive testing.
4. CONDITIONS TO CLOSING
4.1 BUYER'S CONDITIONS TO CLOSING.
Buyer's obligation to acquire the Project, and the Closing,
shall, in addition to any other conditions set forth herein in favor of Buyer,
be conditional and contingent upon the satisfaction, or waiver by Buyer in
writing (in Buyer's sole and absolute discretion), on or before the applicable
time period set forth below of each and all of the following conditions
(collectively "Buyer's Conditions"):
4.1.1 CONDITION OF TITLE. Buyer shall have approved those
covenants, conditions, restrictions, rights of way, easements, reservations, and
other matters of record disclosed in (i) the Title Commitment and (ii) the
Exception Documents. If Buyer disapproves of any matter disclosed in the Title
Commitment or the Exception Documents, Buyer shall notify Seller of such
disapproval no later than May 21, 2004 (the "Title Comment Date") (provided,
however, that if the Title Commitment is supplemented or amended, Buyer shall
have until the later of such date or seven (7) days after receipt of such
supplement or amendment to disapprove of any new matters shown therein and
further provided that any matters of record created or caused by Buyer shall be
deemed approved by Buyer), and Seller shall have seven (7) days from receipt of
such disapproval to agree to attempt to remove the disapproved matter; provided
further however, if Buyer fails within such period to approve any matter
disclosed in the Title Commitment or the Exception Documents, by written notice
to Seller and Escrow Holder, then such matter shall be deemed disapproved by
Buyer. The Title Comment Date shall be extended by one (1) day for each day of
delay in delivering the Title Commitment, Existing Survey and Exception
Documents to Buyer after the date three (3) business days after the Effective
Date. Subject to Seller's obligations below under this SECTION 4.1.1 to remove
certain monetary liens, Seller's agreement to attempt to remove such other
disapproved items shall not be deemed an agreement by Seller to remove such
disapproved items nor shall Seller's failure to remove such disapproved items,
for any reason whatsoever, including, without limitation, that Seller is unable
or unwilling to remove such matters, be considered or deemed a default by Seller
under, or a breach by Seller of, the terms of this Agreement. If Seller is
successful in removing all disapproved matters, the Title Commitment and
Exception Documents shall then be deemed approved, and this contingency shall be
satisfied. If Seller does not agree to attempt to remove all disapproved
matters, or if Seller is not successful in removing all disapproved matters,
Buyer shall have seven (7) days from the date Seller notifies Buyer in writing
that Seller will not attempt to remove or cannot remove disapproved matters, if
Seller does not agree to remove such disapproved matters, to either terminate
this Agreement or agree to accept title to the Project subject to the
disapproved matters that Seller cannot, or will not, remove. If Buyer does not
notify Seller in writing within such seven (7) day period of Buyer's willingness
to accept title to the Project subject to those matters Seller cannot, or will
not, remove, Buyer shall be deemed to have elected to terminate this Agreement
and the Xxxxxxx Money Deposit shall be returned to Buyer.
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The exceptions to title that Buyer approves, or is deemed to have approved,
under this SECTION 4.1.1, and under the terms of SECTION 4.1.2 below, and any
liens or encumbrances created by Buyer, and any Leases entered into in
accordance with SECTION 5.1.1, shall be referred to as "Permitted Title
Exceptions"; provided, however, that notwithstanding any other provision of this
SECTION 4.1.1, or SECTION 4.1.2 below but except as permitted in SECTION 5.1.6
below, the Permitted Title Exceptions shall not include, and Seller shall remove
at or before the Closing and shall cause the Project to be delivered free and
clear of, any lien encumbering the Project that secures the payment of money,
such as mechanic's and materialmen's liens, and the liens of deeds of trust and
mortgages unless Buyer otherwise notifies Seller in writing or unless such liens
or encumbrances were created by Buyer.
Buyer acknowledges and agrees that Seller is in the process of: (i) preparing
and recording an "Amended Binding Site Plan" for the reconfiguration of the
Legal Lots at the Land, a copy of which has been delivered to Buyer, (ii)
amending the ORREA and the XXXXX with respect to construction of certain
improvements at the Project and the "Neighborhood Center," and (iii) dedicating
as a public street 59th Avenue to the City of Lakewood. Buyer shall have the
right to approve the documents referenced in the immediately preceding clauses
(i) through (iii) in connection with Buyer's title review, which approval shall
not be unreasonably withheld, conditioned or delayed. Seller shall have the
right to complete the foregoing notwithstanding any disapproval by Buyer and in
such event Buyer's sole remedy shall be to terminate this Agreement because of a
failure of this Buyer's Condition. Buyer acknowledges receipt of draft copies of
such documents.
4.1.2 SURVEY APPROVAL AND RECERTIFICATION. If Buyer
elects, Buyer shall have obtained, at Buyer's expense, an updated ALTA survey of
the Land and Improvements (the "Buyer's Survey") and Buyer shall have reviewed
and approved those matters disclosed by the Buyer's Survey, if any, and the
Existing Survey no later than the Title Comment Date. If Buyer fails, within
such period, to disapprove any matter disclosed in the Buyer's Survey, if any,
and the Existing Survey, by written notice to Seller, then the Buyer's Survey,
if any, and the Existing Survey shall be deemed approved by Buyer. Otherwise,
the process for removing and approving the matters disclosed in the Existing
Survey shall be the same as applied to the Title Commitment, as set forth in
SECTION 4.1.1 above.
4.1.3 INSPECTION APPROVAL. Buyer shall have approved in
writing, in Buyer's sole and absolute discretion, at or before the End of the
Inspection Period, the condition of the Project following Buyer's inspection of
the Project. With respect to Buyer's investigation, Buyer may, by means of
agents and experts acceptable to Buyer, inspect and receive reports concerning
the condition of the Project, including, but not limited to, the condition of
the roofs, the utilities and the mechanical systems, the structure of the
Improvements, the absence of material deferred maintenance relating thereto, and
the soil and environmental condition of the Project. Buyer's failure to notify
Seller of Buyer's approval of the physical condition of the Project at or prior
to the End of the Inspection Period shall be deemed an approval of the Project's
physical condition by Buyer.
4.1.4 DUE DILIGENCE APPROVAL. Buyer shall have approved,
in Buyer's sole discretion, at or prior to the End of the Inspection Period, all
matters disclosed by the Building Documents and other matters discovered by
Buyer in the course of Buyer's investigation of the Project. If Buyer fails, at
or prior to the End of the Inspection Period, to approve any such matters, by
written notice to Seller, then all such matters shall be deemed approved by
Buyer and this Buyer's Condition shall be deemed satisfied. See also SECTION
5.1.1 hereof.
4.1.5 TENANT ESTOPPELS. At least two (2) business days
prior to the scheduled date of the Closing, Buyer shall have received Tenant
Estoppels (Seller's Estoppel Certificates do not satisfy this requirement) in
form and substance satisfactory
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to Buyer from (a) all of the Lead Tenants and all other Tenants for which
memoranda of lease have been recorded in the Auditor's Records of Xxxxxx County,
Washington, and (b) other Tenants which, together with such Tenants under clause
(a), lease an aggregate of eighty-five percent (85%) of the GLA of the Project
which is leased as of May 10, 2004. The Tenant Estoppels may be dated any date
after May 10, 2004 and shall be substantially (i) in the form of EXHIBIT "I"
attached hereto for Tenants under Leases which do not limit the information to
be provided in the form of tenant estoppel such Tenants are required to execute
and deliver, or (ii) in the form referenced in the applicable Leases with
respect to Leases specifying the form of the estoppel certificates, or (iii)
such other form as Buyer may reasonably approve. Buyer shall not be required to
approve any estoppel certificate which contains any statement that is materially
inconsistent with the terms of the Basic Rent Roll or applicable Lease, or that
alleges any material default on the part of the landlord under the applicable
Lease, or that asserts any right to offset or withhold rent due under the
applicable Lease except as expressly permitted by the terms of the Lease.
Seller shall provide a Seller Estoppel Certificate to Buyer in the form attached
hereto as EXHIBIT "I-1" for the balance of the leased GLA of the Project two (2)
business days prior to the scheduled date of the Closing. If any Tenant for
which Seller delivers a Seller Estoppel Certificate thereafter delivers a Tenant
Estoppel to Buyer prior to the Closing satisfying the requirements of the second
preceding sentence, then Buyer shall return to Seller the respective Seller
Estoppel Certificate and such Seller Estoppel Certificate shall be of no force
or effect whatsoever and if such requirements are not satisfied then this
Buyer's Condition shall be deemed not satisfied and the provisions of SECTION
4.2 shall apply. Seller shall use Seller's commercially reasonable efforts to
obtain a Tenant Estoppel from each and every Tenant; provided however, that
Seller shall not be in default hereunder if despite Seller's commercially
reasonable efforts, Seller is unable to deliver a Tenant Estoppel from every
Tenant required hereunder but Seller has delivered a Seller's Estoppel
Certificate to the extent required hereunder.
4.1.6 SELLER'S DELIVERIES. Seller shall have delivered to
Buyer, at or before the Closing, all items to be delivered by Seller as
described in SECTION 6.3.
4.1.7 REPRESENTATIONS AND WARRANTIES. Seller's
representations and warranties, as set forth in SECTION 7.1, shall be true and
correct in all material respects as of the date of the Closing, and Seller shall
have delivered a certificate to Buyer, dated as of the date of the Closing, in
the form of EXHIBIT "L" attached hereto, certifying that the Seller's
representations and warranties set forth in this Agreement are true and correct
in all material respects as of the date of the certificate.
4.1.8 SELLER'S AUTHORIZATION. At or prior to the Closing,
Buyer shall have received evidence satisfactory to Buyer and Buyer's counsel
that Seller has the power and authority to enter into this Agreement and to
execute and deliver all of the other agreements and documents required to be
executed and delivered as provided herein, and to sell the Project to Buyer in
accordance with the terms and provisions hereof, and that the persons and
parties executing this Agreement and such other agreements and documents to be
delivered to Buyer on behalf of Seller have been duly authorized to do so. Such
evidence shall include a good standing certificate issued by the Secretary of
State of the State of
Washington.
4.1.9 TITLE POLICY. At the Closing, the Title Insurer and
Chicago Title shall be irrevocably committed to issue the Title Policy.
4.1.10 NO MATERIAL CHANGE. There shall have been: (i) no
material loss or damage to the physical condition of the Project or other
circumstances allowing Buyer to terminate this Agreement pursuant to SECTION
11.1 hereof; (ii) no material adverse change in the leasing and occupancy level
of the Project from that level existing on the Effective Date, which for
purposes of this provision shall mean a reduction in the amount of GLA leased by
any Tenants in excess of five thousand (5,000) square feet of GLA; (iii) no
material default or event which with the giving of
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notice or the passage of time or both would be a default, by any Tenant(s)
leasing in excess of five thousand (5,000) square feet of GLA in the aggregate,
(iv) no filing for protection under the United States Bankruptcy Act by any Lead
Tenant, and (v) no material adverse charge in the income or expenses of the
Project after the Effective Date. If there is an adverse change under clause
(ii) or (iii) above, involving less than five thousand (5,000) square feet of
GLA, Seller and Buyer agree to negotiate in good faith for Seller to make
additional deposits under the Escrow and Leasing Agreement for a period of up to
eighteen (18) months with respect thereto.
4.1.11 SELLER'S COVENANTS. Except for immaterial matters,
Seller shall have performed each and all of Seller's covenants and agreements
hereunder required to be performed on or before the Closing Date.
4.1.12 ELECTION TO PURCHASE. Buyer shall not have elected,
by written notice to Seller received by Seller before the End of the Inspection
Period, in Buyer's sole and absolute discretion, not to proceed with the
purchase of the Project. If Buyer elects, by written notice to Seller received
by Seller before the End of the Inspection Period ("Buyer's Termination
Notice"), for any reason or for no reason whatsoever, not to proceed with the
purchase of the Project, this Agreement shall immediately terminate and the
Xxxxxxx Money Deposit shall promptly be returned to Buyer.
4.1.13 THEATRE LEASE AMENDMENT. Seller and Loews Cineplex
Odeon (the "Theatre Tenant") shall have entered into an amendment to the two (2)
Leases (the "Theatre Lease Amendment") for the theatre at the Project
substantially in the form attached hereto as EXHIBIT "N," with such changes
thereto as may be reasonably approved by Buyer.
4.1.14 RESTRICTIVE USE DECLARATION. The Restrictive Use
Declaration shall have been recorded in the Auditor's Records of Xxxxxx County,
Washington encumbering the Project and the Neighborhood Center to evidence the
applicability of (i) exclusive use provisions in Leases for premises located in
the Project that apply to the Neighborhood and vice versa, and (ii) prohibited
use provisions under Leases in either the Project or the Neighborhood Center
that apply to the other property and are not already included in the XXXXX or
the ORREA.
4.1.15 00XX XXXXXX. A deed conveying 59th Avenue, as shown
on the Site Plan, to the City of Lakewood shall have been recorded in the
Auditor's Records of Xxxxxx County,
Washington.
4.1.16 LEGAL LOTS. An amended binding site plan or other
appropriate document shall have been recorded in the Auditor's Records of Xxxxxx
County,
Washington so that the real property portion of the Project consists of
"legal lots" under applicable laws of the State of
Washington ("Legal Lots")
contained wholly within the Project.
4.2 FAILURE OF CONDITIONS.
Buyer shall have the right (in Buyer's sole and absolute
discretion) to elect to waive any Buyer's Condition or other condition to the
Closing. In the event any Buyer's Condition is not satisfied, deemed satisfied,
or waived in writing by Buyer prior to the expiration of the applicable period
for satisfaction or waiver (and in the absence of a specified period then at or
before the Closing Date), then the Xxxxxxx Money Deposit shall be returned to
Buyer and this Agreement shall automatically terminate and neither Buyer nor
Seller shall have any further rights hereunder except as otherwise specifically
set forth herein with respect to matters which survive termination of this
Agreement; provided however, if there is a failure of a Buyer Condition set
forth in SECTIONS 4.1.5, 4.1.6, 4.1.7, 4.1.8, 4.1.9, 4.1.11 OR 4.1.13 THROUGH
4.1.16, inclusive, then the time period for satisfaction (or waiver by Buyer in
Buyer's sole discretion) of such
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Buyer's Conditions shall, at Buyer's option exercised by written notice to
Seller and Escrow Holder, be extended to June 21, 2004. In the event this
Agreement is terminated as provided herein, all documents and funds delivered by
one party to the other party shall be returned to the party making delivery.
4.3 SELLER'S CONDITIONS.
Seller's obligation to convey the Project to Buyer, and the
Closing, shall in addition to any other conditions set forth in this Agreement
in favor of Seller, be conditional and contingent upon the satisfaction, or
waiver by Seller (in Seller's sole and absolute discretion), on or before the
applicable time period specified below, of each and all of the following
conditions (collectively, the "Seller Conditions"):
4.3.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer, as set forth in SECTIONS 7.2 and 9.2 below, shall be
true and correct in all material respects as of the Closing Date, and Buyer
shall deliver a certificate to Seller, dated as of the Closing Date, certifying
that Buyer's representations and warranties set forth in this Agreement are true
and correct in all material respects as of the Closing Date.
4.3.2 BUYER'S DELIVERIES. Buyer shall have delivered to
Seller, at or before the Closing, all items to be delivered by Buyer as
described in SECTION 6.4 below.
4.3.3 AUTHORIZATION. At or prior to the Closing, Seller
shall receive evidence reasonably satisfactory to Seller and Seller's counsel,
that Buyer has the power and authority to enter into this Agreement and that
Buyer has the power and authority to execute and deliver all of the other
Agreements and documents required to be executed and delivered as provided
herein, and that the persons and parties executing this Agreement and such other
agreements and documents to be delivered to Seller on behalf of Buyer have been
duly authorized to do so, Such evidence shall include resolutions or other
evidence reasonably satisfactory to Seller and the Certificate of Buyer
referenced in SECTION 6.4.7 hereof.
4.3.4 MUTUAL CONDITIONS. The Buyer Conditions set forth in
SECTIONS 4.1.13 ("Theatre Lease Amendment"), 4.1.14 ("Restrictive Use
Declaration"), 4.1.15 ("59th Avenue"), and 4.1.16 ("Legal Lots"), of this
Agreement shall be satisfied or, with respect to the Buyer Condition in SECTIONS
4.1.13 and 4.1.14 only, waived by Seller.
4.3.5 SELLER'S TITLE POLICY. At the Closing, the Title
Insurer shall be irrevocably committed to issue the Seller's Title Policy.
4.4 FAILURE OF SELLER CONDITIONS.
In the event any Seller Condition is not satisfied or waived
by Seller prior to the expiration of the applicable period for satisfaction or
waiver as provided above, or in the event Seller fails to notify Buyer and
Escrow Holder in writing that any Seller Condition is not satisfied or waived by
Seller on or prior to the applicable period for satisfaction or waiver as
provided above, then this Agreement and the Escrow shall be automatically
terminated, and neither party shall have any further rights, duties or
obligations hereunder, except as otherwise provided in this Agreement; provided
however, if there is a failure of a Seller Condition set forth in SECTIONS 4.3.1
THROUGH 4.3.3, inclusive, Buyer shall have the right to cure such matters that
are capable of being cured within three (3) business days after Seller's written
notice to Buyer of such failure to satisfy such Seller's Conditions. If this
Agreement is terminated because of a failure of a Seller Condition set forth in
SECTIONS 4.3.3, 4.3.4, or 4.3.5 hereof, then in connection with the termination
of this Agreement, Escrow Holder is hereby irrevocably instructed to return the
Xxxxxxx Money Deposit to Buyer. If this Agreement is terminated because of a
failure of a Seller Condition set forth in SECTION 4.3.1 or 4.3.2,
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then the Xxxxxxx Money Deposit shall be subject to the provisions of SECTION 8.2
of this Agreement and if Buyer is thereby in default hereunder, then Seller
shall be entitled to receive the Xxxxxxx Money Deposit subject to and in
accordance with the provisions set forth in SECTION 8.2 of this Agreement.
5. COVENANTS
5.1 SELLER'S COVENANTS.
In addition to all other covenants of Seller contained herein,
Seller makes the following covenants to Buyer:
5.1.1 LEASING ACTIVITIES. During the Contract Period,
Seller agrees that Seller shall continue to perform all of Seller's obligations
as landlord under the Leases. Prior to the End of the Inspection Period, Seller
may enter into new Leases, amend, terminate, accept the surrender of, or grant
any consent with respect to any Lease, or approve the assignment of any Lease
without Buyer's consent; subject however, to Seller providing a copy of the
relevant document to Buyer within five (5) business days thereafter and in any
event at least three (3) business days prior to the End of the Inspection
Period. After the End of the Inspection Period, Seller shall not enter into any
new Leases, amend, terminate, accept the surrender of, or grant any consent with
respect to any Lease, or approve the assignment of any Lease, without the prior
written consent of Buyer, which consent may be given or withheld in Buyer's
reasonable discretion; provided however, Seller shall have the right, even if
Buyer refuses to consent, to enter into a Lease amendment with the Theatre
Tenant substantially in the form attached hereto as EXHIBIT "N." Seller shall
also have the right to terminate the lease with Sound Community Bank (which
Tenant is currently located in the area to be demolished in connection with the
Theatre Related Improvements), in connection with such Tenant's relocation from
the Project to the "Neighborhood Center" (which is not part of the Project). The
relocation of Sound Community Bank to the Neighborhood Center is currently
expected to occur on or about May 31, 2004. Seller shall promptly after
execution thereof deliver to Buyer an executed letter of intent or term sheet,
if any, for each Lease, amendment, termination, surrender, consent or assignment
for which Buyer's consent is to be requested under this Section. Buyer's failure
to respond to Seller in writing within seven (7) business days after Buyer's
receipt of a written request from Seller seeking Buyer's consent pursuant to
this SECTION 5,1.1 shall be deemed conclusively to constitute Buyer's consent to
the proposed transaction. Any such request by Seller shall contain a copy of the
proposed new Lease, amendment, termination, surrender, consent or assignment
and, in the case of a new Lease or an assignment, relevant information in
Seller's possession or control regarding the proposed Tenant necessary for Buyer
to evaluate the Tenant. Prior to the End of the Inspection Period, Buyer's
approval of new Leases or for lease amendments, extensions or terminations shall
not be required; provided, however, Seller shall deliver copies of all such
Leases or lease amendments, extensions or terminations to Buyer prior to the End
of the Inspection Period and if Buyer disapproves any of such Leases or Lease
amendments, extensions or terminations prior to the End of the Inspection
Period, or if Buyer disapproves the Theatre Lease Amendment and Seller
nevertheless executes such Lease amendment (whether before or after the End of
the Inspection Period), then the Buyer's Condition set forth in SECTION 4.1.4
hereof shall be deemed not satisfied and Buyer may exercise Buyer's rights
under SECTION 4.2 of this Agreement. Seller agrees to deliver drafts of Leases
to Buyer for review during the Lease negotiation process and to keep Buyer
advised of the status of Lease negotiations.
Pursuant to the Escrow and Leasing Agreement, Seller
is responsible for payment of all tenant allowances (including construction
costs which are the obligation of the landlord under Leases), leasing
commissions and other leasing costs to be borne by the landlord under the
Leases, if any, executed during the Contract
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Period to the extent of funds deposited therefor under the Escrow and Leasing
Agreement.
5.1.2 NEW CONTRACTS. During the Contract Period, Seller
agrees that Seller shall not enter into any new Service Contract or any other
contract relating or pertaining to the Project which would extend beyond the
Closing Date, or amend or modify any such contract, in any manner that would
preclude Buyer from terminating the same without cost or expense to Buyer on not
more than thirty (30) days' written notice, given at any time after the Closing,
unless Seller has obtained Buyer's prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed. Buyer's failure to respond
to Seller in writing within five (5) business days after Buyer's receipt of a
written request from Seller seeking Buyer's consent pursuant to this SECTION
5.1.2 shall be deemed conclusively to constitute Buyer's consent to the proposed
transaction. Any such request by Seller shall contain a copy of the proposed new
Service Contract.
5.1.3 PAYMENT OF OBLIGATIONS. At all times during the
Contract Period, Seller shall timely pay all monetary obligations and perform
Seller's material obligations under the Leases and Service Contracts and shall
timely pay all taxes, assessments, brokerage and leasing commissions, management
fees and utility charges affecting the Project. Seller agrees to deliver to
Buyer copies of any notice of default received by Seller under any Leases or
Service Contracts during the Contract Period.
5.1.4 INSURANCE. At all times during the Contract Period,
Seller shall maintain, or cause to be maintained, in full force and effect and
pay, or cause to be paid, all premiums for Seller's "all risk" and liability
insurance policies currently covering the Project.
5.1.5 COMPLIANCE WITH LAWS. During the Contract Period,
Seller shall use Seller's commercially reasonable efforts to remove, or cause to
be removed, any notices of violations of any federal, state or municipal or
other health, building, zoning, safety, environmental protection or other
applicable code, law, ordinance, rule or regulation now or hereafter existing
and relating to the Project and to promptly deliver copies of any such notices
to Buyer.
5.1.6 REMOVE LIENS. At or prior to the Closing, Seller
agrees to fully pay, satisfy or otherwise remove, at Seller's sole expense, all
deeds of trust, mortgages or other monetary liens against the Project, all
mechanic's or materialman's liens or any similar claim or lien claimed against
the Project, or any part thereof, arising from work performed or commenced or
materials supplied, prior to the Closing (except for any liens arising from the
activities of Buyer or Buyer's employees, agents or representatives), such that
there are and will be no mechanic's or materialman's liens existing or that may
arise by reason of the construction of the Improvements; provided however,
Seller shall have the right to obtain, and shall obtain at Seller's cost, a
title endorsement to Buyer's Title Policy insuring Buyer against loss with
respect to any such liens referenced in this clause (ii) if Seller is contesting
such liens in good faith and Seller shall not be required to remove liens
arising from leasehold improvements constructed by Tenants, if any, to the
extent such Tenants are responsible for the cost of such construction and
provided that Seller is reasonably enforcing such Tenant's Lease provisions
concerning removal or contest of any such liens and Seller shall not be required
to remove liens arising from activities of Buyer or Buyer's Representatives on
the Project.
5.17 TENANT ESTOPPELS. Seller shall use Seller's
commercially reasonable efforts to obtain and deliver to Buyer: (i) the Tenant
Estoppels described in SECTION 4.1.5. and (ii) estoppels in form reasonably
satisfactory to Buyer from guarantors of any Tenant's obligations under the
Leases (the "Lease Guarantor Estoppels") as
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promptly as is reasonably practicable, and in any event at least two (2)
business days prior to the scheduled Closing Date.
5.1.8 OPERATING REPORTS. Within fifteen (15) days after
the end of each calendar month during the Contract Period, Seller shall deliver
to Buyer an operating report with respect to the Project's operations for such
month, which report shall indicate gross rental income, gross income from other
(identified) sources, expenses of each kind and amount, rent delinquencies and
vacancies.
5.1.9 MAINTENANCE. During the Contract Period, Seller
shall maintain the Project, including all landscaping, in its present condition,
ordinary wear and tear excepted, and Seller shall not otherwise deviate from its
ordinary and customary operation, maintenance or management of the Project.
Seller shall, within three (3) days of its occurrence, provide Buyer with
written notice of any material change in the condition of the Project which is
other than as a result of ordinary wear and tear; the notice shall indicate the
extent of the damage, the anticipated cost of repair and the time necessary to
make such repairs.
5.1.10 PERSONAL PROPERTY. Except to the extent such items
are replaced with items having equal or greater value in the ordinary course of
business, Seller shall not dispose of any Personal Property costing in the
aggregate more than Five Thousand Dollars ($5,000.00) without Buyer's prior
written approval.
5.1.11 COMPLETION OF CONSTRUCTION. Seller agrees at
Seller's sole cost and expense to diligently complete construction, or cause
such construction to be completed, in a good and workerlike manner of all tenant
improvements under Leases executed prior to the Closing Date, and such other
items as are set forth in the Escrow and Leasing Agreement, pursuant to the
plans and specifications therefor. Seller also agrees to cause completion of all
"punch list" items with respect to the "Landlord Work," if any, and other tenant
improvements under Leases executed prior to the Closing Date, within the time
periods required by such Leases, whether or not such date occurs prior to the
Closing Date. Seller shall also assign and deliver to Buyer any and all
construction warranties obtained by Seller in connection with such construction
to the extent such warranties are assignable by Seller and except to the extent
such warranties have been assigned to Tenants. Subject to Seller's receipt of
all required governmental permits and approvals, and approvals of third parties
(including the Xxxx'x Cineplex Theatre Tenant), Seller shall commence and
complete construction of the Theatre Related Improvements within the time period
required by the Theatre Lease Amendment.
5.1.12 COOPERATION WITH BUYER'S AUDIT. Seller agrees to
reasonably cooperate with reasonable requests of Buyer'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 Project.
5.2 BUYER'S COVENANTS.
In addition to all other covenants of Buyer contained herein,
Buyer makes the following covenants to Seller:
5.2.1 TENANT CONTACTS. Buyer agrees to notify Seller prior
to contacting any Tenant and to allow Seller the opportunity to attend any
meeting between any Tenant and Buyer. Buyer agrees to promptly provide Seller
with copies of all correspondence and other communications between any Tenant
and Buyer.
5.2.2 SELLER'S DEVELOPMENT ACTIVITIES. Buyer, at no
expense to Buyer, agrees to reasonably cooperate with Seller's development
activities on other property owned by Seller, including specifically the
Neighborhood Center. Such
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cooperation by Buyer shall include Buyer's execution of such amendments to the
ORREA as Seller may reasonably request to allow for reconfiguration of the
building areas and common areas on such property.
6. CLOSING
6.1 AGREEMENT TO CONSTITUTE ESCROW INSTRUCTIONS.
This Agreement shall constitute escrow instructions and a copy
hereof shall be deposited with Escrow Holder for this purpose.
6.2 CLOSING DATE; CLOSING.
Escrow shall open on the date on which a copy of this
Agreement, properly executed by the parties hereto, has been deposited with
Escrow Holder, which copy the parties hereto agree shall be delivered to Escrow
Holder immediately following execution. Escrow Holder shall notify the parties
immediately upon receipt of a copy of this Agreement as so executed as to the
date of the opening of Escrow. The Closing shall take place on June 4, 2004 (the
"Closing Date"), at the Closing Office at 10:00 A.M. or at such other place and
time as the parties shall mutually agree in writing. The Closing shall be held
by delivery of certain documents and funds to the Escrow Holder or the Title
Insurer, as appropriate, at the Closing Office and it is not contemplated that
representatives of either Seller or Buyer will personally attend the Closing. If
the Closing has not occurred by June 7, 2004 for any reason whatsoever other
than a default of Seller, time being of the essence, then Seller shall have the
right in Seller's sole and absolute discretion to terminate this Agreement in
which event the Xxxxxxx Money Deposit shall be returned to Buyer unless Seller
is entitled to the Xxxxxxx Money Deposit pursuant to SECTION 8.2 hereof;
provided however, if there is an extension of time under, and pursuant to,
SECTION 4.2 hereof for the satisfaction of the Buyer's Conditions referenced in
such SECTION 4.2, or if there is an extension of time under, and pursuant to,
SECTION 4.4 hereof for the satisfaction of the Seller's Conditions referenced in
such SECTION 4.4, then the outside Closing Date shall be extended to June 21,
2004.
6.3 ITEMS TO BE DELIVERED BY SELLER.
At the Closing and as a Buyer's Condition to the occurrence of
the Closing, Seller shall deliver or cause to be delivered to Buyer the
following (the items listed in SECTIONS 6.3.1 through 6.3.6, 6.3.18 and 6.3.20
shall be delivered through Escrow Holder unless Seller and Buyer otherwise agree
in writing):
6.3.1 The Deed.
6.3.2 The Xxxx of Sale.
6.3.3 The Assignment of Leases.
6.3.4 The Assignment of Intangible Property.
6.3.5 The Assignment of Service Contracts and evidence of
termination with respect to any Service Contracts to be terminated pursuant to
SECTION 3.4 hereof.
6.3.6 The Escrow and Leasing Agreement and, if required by
Buyer, the Master Lease.
6.3.7 An updated and/or amended Rent Roll, containing any
new, changed, or other additional information not previously provided by any
Rent
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Roll previously delivered by Seller to Buyer and certified by Seller to be true
and correct as of the Closing Date.
6.3.8 A certificate, in the form of EXHIBIT "L" attached
hereto, certifying that the representations and warranties of Seller, as set
forth in SECTION 7.1 below, are true and correct as of the Closing Date.
6.3.9 Amendments or addenda, if any, to the Tenant
Estoppels and Seller Estoppels previously delivered pursuant hereto setting
forth any and all changes, amendments and/or modifications to the Leases other
than those set forth herein and, to the extent not previously delivered to
Buyer, the Tenant Estoppels, the Lease Guarantor Estoppels, if any, and the
Seller Estoppels.
6.3.10 The original Building Documents, including, but not
limited to, all books and records requested pursuant to SECTION 3.1.14;
provided, however, that copies of the Building Documents shall be acceptable if
the originals are not in the possession or control of Seller, except that Seller
shall deliver the original Leases and the original Service Contracts.
6.3.11 All master keys to the Project and each suite or
unit door and closed and locked location at the Project for which access
requires a key, to the extent the keys are in the possession of Seller.
6.3.12 A Certificate from and a written search of the
records of the Secretary of State or other appropriate governmental official(s)
of the State of Washington, indicating that there are no filings against Seller
in the Office of the Secretary of State of Washington under the Uniform
Commercial Code of Washington that would be a lien on any of the items included
in the definition of the "Project" that constitutes personal property (other
than such filings, if any, that shall be released at the time of the Closing).
6.3.13 The Notices to Tenants.
6.3.14 An affidavit, executed by Seller, in the form of
EXHIBIT "K" attached hereto, certifying that Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended.
6.3.15 A Real Estate Tax Affidavit executed by Seller in
form required by law (the "Real Estate Tax Affidavit").
6.3.16 Any other documents, instruments, records,
correspondence or agreements required hereunder to be delivered by Seller before
the Closing or reasonably requested by Buyer, that have not previously been
delivered to Buyer.
6.3.17 Final Closing Statement signed by Seller.
6.3.18 The Restrictive Use Declaration.
6.3.19 Termination of the CB Xxxxxxx Xxxxx exclusive lease
listing agreement with respect to the Project.
6.3.20 Partial Assignment and Assumption of Seller's rights
under the ORREA with Buyer cooperation with Seller's remaining development
activities (the "ORREA Assignment").
Additionally, Seller shall pay at the Closing all of Seller's expenses and costs
in connection with the Closing, as provided below; provided, however, that
Seller may, at
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Seller's option, grant a credit to Buyer toward payment of the Purchase Price in
the amount of such costs and expenses.
6.4 ITEMS TO BE DELIVERED BY BUYER.
At the Closing and as a Seller's condition to the occurrence
of the Closing, Buyer shall deliver, or cause to be delivered, to Seller the
following (the items listed in SECTIONS 6.4.1 through 6.4.5 and 6.4.10 shall be
delivered through Escrow Holder unless Seller and Buyer otherwise agree in
writing):
6.4.1 The Purchase Price (less the amount of the Xxxxxxx
Money Deposit if Buyer elects to apply the Xxxxxxx Money Deposit to the Purchase
Price), as adjusted pursuant to the provisions of this Agreement.
6.4.2 The Escrow and Leasing Agreement and, if required by
Buyer, the Master Lease.
6.4.3 The Assignment of Leases.
6.4.4 The Real Estate Tax Affidavit.
6.4.5 The Assignment of Service Contracts.
6.4.6 A certified copy of the resolutions of Buyer
authorizing the execution and delivery of this Agreement and the transactions
contemplated hereby if required by Escrow Holder.
6.4.7 A certificate, in the form of EXHIBIT "L-1" attached
hereto, certifying that the representations and warranties of Buyer, as set
forth in SECTION 7.2 below, are true and correct as of the Closing Date.
6.4.8 Any other documents, instruments, records,
correspondence or agreements required hereunder to be delivered by Buyer before
the Closing, or reasonably requested by Seller, that have not previously been
delivered to Seller.
6.4.9 Final Closing Statement signed by Buyer.
6.4.10 The ORREA Assignment.
Additionally, Buyer shall pay at the Closing all of Buyer's costs and expenses
of the Closing, as required below.
6.5 DIRECTIONS TO TITLE INSURER.
Buyer and Seller shall instruct the Title Insurer to record
the Restrictive Use Declaration, the Deed in favor of Buyer and the ORREA
Assignment, in that order, and to record all other documents, including deeds of
reconveyance, necessary for title to the Land and Improvements to be conveyed to
Buyer free and clear of all liens and encumbrances and other matters of record,
except the Permitted Title Exceptions.
6.6 PRORATIONS AND OTHER ADJUSTMENTS.
The parties shall prorate the following items between Buyer
and Seller as of 12:01 A.M. on the Closing Date. Seller and Buyer shall
reasonably cooperate in the preparation of prorations and other matters so that
Escrow Holder can, and Escrow Holder shall, provide to Seller and Buyer a
tentative closing statement, including a proration schedule, at least three (3)
days prior to the scheduled Closing
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Date. Seller shall be entitled to all income produced from the operation of the
Project which is allocable to the period prior to Closing and Seller shall be
responsible for all expenses allocable to that period; and Buyer shall be
entitled to all income and, as between Seller and Buyer solely with regard to
Service Contracts or other obligations accepted and expressly assumed by Buyer
at Closing, Buyer shall be responsible for all expenses allocable to the period
beginning at 12:01 A.M. on the day Closing occurs. At the Closing, all items of
income and expense listed below with respect to the Project shall be prorated in
accordance with the foregoing principles and the rules for the specific items
set forth hereafter:
6.6.1 ITEMS OF REVENUE AND EXPENSE.
6.6.1.1 Seller shall arrange for a billing under
all those Service Contracts for which fees are based on usage and with utility
companies for a billing for utilities, to include all utilities or service used
up to the Closing Date, and Seller shall pay the resultant bills. In the event
any of the Service Contracts to be assumed by Buyer cover periods beyond the
Closing Date the same shall be prorated on a per diem basis. In the event that
final meter readings cannot be obtained due to the utility companies' internal
operating procedures, Seller shall reimburse Buyer for any payments to such
utilities applicable to the period prior to the Closing Date immediately upon
receipt of evidence of such payments from Buyer.
6.6.1.2 Real estate taxes and personal property
taxes on the Project, including without limitation installments of general,
special or betterment assessments on the Project, shall be prorated based upon
the period (I.E., calendar or other tax fiscal year) to which same are
attributable, regardless of whether or not any such taxes are then due and
payable or are a lien. Seller shall pay at or prior to Closing (or Buyer shall
receive credit for) any unpaid taxes attributable to periods prior to the
Closing Date (whether or not then due and payable or a lien as aforesaid).
Seller shall receive credit for any previously paid or prepaid taxes
attributable to periods from and after the Closing Date. In the event that as of
the Closing Date the actual tax bills for the tax year or years in question are
not available and the amount of taxes to be prorated as aforesaid cannot be
ascertained, then rates, millages and assessed valuation of the previous year,
with known changes, shall be used; and after the Closing Date and when the
actual amount of taxes for the year or years in question shall be determinable,
such taxes will be re-prorated between the parties to reflect the actual amount
of such taxes.
6.6.1.3 Rentals and other payments (other than
"percentage rent" and common area maintenance charges which are dealt with in
SECTION 6.6.1.4 and SECTION 6.6.1.6) which are payable pursuant to Leases shall
be prorated on a per diem basis as if collected on the date such amounts accrue.
Buyer shall not be obligated to make any payment or give any credit to Seller on
account of or by reason of any rental or other payments which are unpaid as of
the Closing Date, but shall be required merely to turn over Seller's share of
the same within thirty (30) days if, as and when received by Buyer after the
Closing Date (subject to SECTION 6.6.3).
6.6.1.4 Percentage rent (I.E., that portion of
the rent payable by a Tenant under a Lease which is a percentage of the amount
of sales or of the dollar amount of sales), if any, payable under each Lease
shall not be prorated with respect to the lease year thereunder in which the
Closing occurs. Any percentage rent collected by Buyer relating to calendar year
2004 or later shall be retained by Buyer.
6.6.1.5 Gas, water, electricity, heat, fuel,
sewer and other utilities charges to which SECTION 6.6.6.1 cannot be applied,
and the governmental licenses, permits and inspection fees relating to the
Project, shall be prorated on a per diem basis.
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6.6.1.6 Common area maintenance expenses and
charges, shall be prorated. Seller shall be responsible for all common area
expenses and charges incurred prior to the Closing Date, and Buyer shall be
responsible for the same, on and subsequent to the Closing Date (but, as between
Seller and Buyer, only to the extent incurred under Service Contracts accepted
and expressly assumed by Buyer at Closing). All common area expense payments
made by each Tenant and such charges paid under its respective Lease for the
entire lease year during which the Closing occurs, including in each case
end-of-year adjustments, if any, shall be prorated between Seller and Buyer in
the following manner: Not later than two (2) days prior to Closing, Seller shall
deliver to Buyer, with regard to each Tenant required to pay common area charges
("CAM Charges") under its respective Lease a detailed computation showing all
estimated CAM Charge expenses incurred by Seller for the period from the
beginning of each such Tenant's then current billing period for CAM Charges
(E.G., calendar year, lease year, etc.) through the Closing Date (which
computation may be based on the estimated amounts therefor set forth in the
Project's budget for calendar year 2004), any CAM monthly estimates or charges
theretofore collected by Seller relating to such Tenant (hereinafter referred to
as the "CAM Estimates"), and a calculation of each Tenant's estimated prorata
share of CAM Charges (I.E., for CAM charges through the Closing Date net of any
such CAM Estimates), together with all invoices and other evidence documenting
such CAM Charges in detail required by such Tenant's Lease to the extent
available at that time. Such calculations prepared by Seller shall be
incorporated into a single post-Closing (as and when appropriate for annual
reconciliation or other billing of CAM charges for any Tenant) reconciliation
for CAM Charges to such Tenant, in which event such applicable amount, as and
when paid, shall be apportioned between Seller and Buyer based on the ratio of
pre- and post-Closing CAM expenses (taking into account any CAM Estimates
retained by Seller at Closing).
Any CAM Estimates for any Tenant shall be
retained by Seller up to the amount of the pre-Closing CAM Charges payable by
such Tenant as evidenced by such computations delivered by Seller at Closing,
and any excess shall be paid or credited to Buyer at Closing.
6.6.1.7 To the extent not paid by Seller prior to
Closing, all unpaid brokerage and leasing commissions or other compensation due
or accrued prior or subsequent to the Closing Date to any broker, agent, or
other person in connection with the Project for brokerage or other services
rendered to Seller or any predecessor of Seller in connection with the
management and/or leasing of the Project shall remain the responsibility of
Seller.
6.6.1.8 All prepaid rentals, and other prepaid
payments under any Leases, license agreements or concession agreements relating
to the Project, shall all belong to Buyer and all shall be assigned and
delivered to Buyer at the Closing.
6.6.1.9 Buyer shall not be responsible for any
charges, salaries, vacation pay or fringe benefits of employees of Seller prior
to or following the Closing and none of the foregoing shall be prorated.
6.6.1.10 Tax and other escrow deposits (if any)
held by Seller's lender under any loan secured by a mortgage on the Project
shall be retained by Seller.
6.6.2 All prorations and payments to be made under the
foregoing provisions shall be made on the basis of a written statement or
statements delivered to Buyer by Seller and approved by Buyer. In the event any
prorations, apportionments or computation shall prove to be incorrect for any
reason, then either party shall be entitled to an adjustment to correct the
same, provided that such party
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makes written demand on the one from who it is entitled to such adjustment
within one (1) year after the erroneous payment or computation was made.
6.6.3 All accounts receivable flowing from the Project
shall be disposed of as follows:
6.6.3.1 Buyer and Seller agree to treat all base
or minimum rental payments received from a Tenant as first applicable to base or
minimum rent which was owed by that Tenant, if any, for the month in which
Closing occurs. In the event that there remains any unpaid base or minimum rent
payable to Seller for a period prior to the Closing, all payments of base or
minimum rent received from such Tenant shall be applied to sums owed Buyer
before any part thereof shall be treated as belonging to Seller. In the event
that there remains any unpaid Tenant receivable other than base or minimum rent
(including without limitation any tax, CAM, insurance or percentage rent
payments) for any period prior to the Closing, all payments received from any
Tenant in arrears shall be applied to any sums currently owed Buyer from such
Tenant (whether base or minimum rent or any other amount) before any part
thereof shall be treated as belonging to Seller.
6.6.3.2 In the event that any Tenant of Seller or
Buyer at the Project shall hereafter apply or shall have heretofore applied for
relief under the provisions of any bankruptcy or similar laws for the protection
of debtors, the provisions of SECTION 6.6.3.1 shall not apply, and the parties
shall have the right to seek collection of their respective accounts, their
entitlements being determined by the Closing and the other provisions of this
Agreement.
6.6.3.3 Neither party shall have the right to
enter into any transactions that purport to compromise claims belonging to the
other, without the other party's prior written consent.
6.6.3.4 If at the time of Closing any Tenants owe
Seller any money, Seller shall have the right, subsequent to the Closing, to
collect such sums directly from the Tenants including bringing lawsuits against
the tenants (at Seller's sole expense) for such collection; provided, however,
Seller agrees that any such legal action or collection shall not include any
disturbance of the possession, use or occupancy of the tenants or any right to
evict the tenants, whether pursuant to the lease provisions or otherwise, and
Buyer shall not be obligated to join in any lawsuit or in any other way to
participate or cooperate with Seller in its collection attempts, unless required
to by law for Seller to maintain its action, and in such event, Buyer will (at
Seller's expense) join in such a lawsuit or action only if the same does not
include or require disturbance of the possession of any tenants, as aforesaid.
6.6.4 If, within one (1) year following the Closing Date,
any Tenant makes a claim against Buyer for any overcharge paid to Seller
(Including without limitation any withholding of rent by reason thereof), Seller
will and hereby agrees to defend, indemnify and hold Buyer harmless from and
against any loss, expense, or damage (including without limitation withheld
rents or reasonable attorney's fees) arising from or relating to any such
alleged overcharge paid to Seller or rent withholding in connection therewith.
The provisions of this SECTION 6.6.4 shall survive Closing for a period of one
year (and for such additional period as may be necessary to resolve any such
claim made within such one year period).
6.6.5 REMITTANCE BETWEEN PARTIES. Any amounts owed between
Buyer and Seller in accordance with the foregoing provisions shall be determined
to be delinquent thirty (30) days after notification to the party required to
make remittance. Delinquent balances shall bear interest at ten percent (10%)
per annum or, if a lesser rate, the maximum rate allowed by law; provided,
however, with respect to sums which must first be reimbursed by Tenants to
Buyer, such thirty (30)-day period shall not commence until receipt of the funds
by Buyer from the Tenants.
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Buyer agrees to use reasonable efforts to collect and assist Seller in
collecting any revenue which is owed to Seller as of the Closing Date or in
connection with such reconciliations; however, Buyer shall not be obligated to
incur any expense in pursuing such collections and Buyer shall not be obligated
to participate in any litigation as part of such collection efforts, except for
allowing suit to be filed in Buyer's name (to the extent necessary for the
prosecution of litigation; provided however, Seller shall have no right to
terminate any Leases or dispossess Tenants from their premises) and Seller shall
indemnify Buyer for any cost or liability incurred by Buyer solely on account of
Buyer allowing suit to be filed in Buyer's name, but not for any other claims
against Buyer based upon Buyer's conduct. Seller has conducted the
reconciliation for calendar year 2003 CAM Charges pursuant to the terms of the
Leases, and Buyer agrees to cooperate with Seller in resolving any issues that
may arise in connection with such reconciliations, and Seller shall be
responsible for any amounts payable to Tenants, and Seller shall be entitled to
any under payments required to be made by Tenants, in connection therewith.
6.7 ITEMS NOT TO BE PRORATED.
No proration shall be made for (i) insurance premiums, or (ii)
employee salaries, benefits, bonuses, payroll taxes or other employee costs.
Seller shall terminate and pay for all such services as of the Closing. Buyer
shall have no obligation to retain any of Seller's employees providing services
in connection with the ownership, management or operation of the Project, and
Seller shall be responsible for all claims of any such employees.
6.8 SECURITY DEPOSITS.
All security or other deposits, including accrued interest
thereon required to be paid to Tenants under the terms of their respective
Leases, if any, being held by Seller at the date of the Closing on behalf of
Tenants under any Leases and, to the extent applicable under any Service
Contracts or other contracts (such as contracts with tenant improvement
contractors retained by Tenants, if any) shall be credited to Buyer toward
payment of the Purchase Price based upon the amount of such deposits or
obligations as set forth in the Rent Roll or the Leases, or otherwise identified
by Seller and any discrepancies as to the amount of any such deposits or of
obligations disclosed in Tenant Estoppels shall be resolved in good faith by the
parties. All refundable security or other deposits paid by Seller under the
Readerboard Sign Contract or other Service Contracts or otherwise, if any, shall
be debited to Buyer and credited to Seller.
6.9 POSSESSION.
Possession of the Project shall be transferred by Seller to
Buyer upon the Closing Date, subject only to the Permitted Title Exceptions and
the rights of Tenants under validly executed written Leases which Permitted
Title Exceptions and Leases are then in full force and effect, and any temporary
or seasonal tenancies then in effect.
6.10 CLOSING COSTS.
6.10.1 SELLER'S CLOSING COSTS. Seller shall pay (i)
one-half of the escrow fee charged by Escrow Holder, (ii) the portion of the
premium applicable to standard coverage for the Title Policy, including
co-insurance issued by Chicago Title in connection therewith (with Seller's cost
for co-insurance not to exceed Nineteen Thousand Dollars ($19,000.00)) and the
premium for Seller's Title Policy, (iii) fees for obtaining pay off demand
statements from lenders, (iv) Seller's attorneys' fees in connection with this
Agreement and the transactions contemplated hereby, (v) the coat of endorsements
to insure around any mechanic's, materialmen's or similar liens or claims Seller
is contesting in good faith, (vi) all recording and similar costs to evidence
that any mortgage or other monetary encumbrance necessary to be reconveyed in
order
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that the Title Policy can be issued, (vii) the commission or fee payable to SCC
referenced in SECTION 9 hereof, and (viii) any excise, documentary transfer tax,
stamp tax and/or other recording fees and charges with respect to the Deed, in
the amount required to be paid by law.
6.10.2 BUYER'S CLOSING COSTS. Buyer shall pay (i) one-half
of the escrow fee charged by Escrow Holder, (ii) all recording costs of the
Deed, (iii) the cost of the additional premium (over and above the premium for
standard coverage) far the Title Policy, costs of co-insurance for the Title
Policy in excess of Nineteen Thousand Dollars ($19,000.00) and the charge for
any endorsements or reinsurance which Buyer elects to obtain to or for the Title
Policy and any additional premiums for reinsurance, (iv) the coat of the Buyer's
Survey, (v) all engineering and inspection costs, the costs of engineering,
environmental, seismic and other reports and all of Buyer's other due diligence
costs, and (vi) Buyer's attorneys' fees incurred in connection with this
Agreement and the transactions contemplated hereby.
6.10.3 OTHER CLOSING COSTS. Other closing costs not
specifically allocated above shall be allocated between Seller and Buyer as is
customary in Xxxxxx County, Washington.
7. WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby makes the following representations and
warranties for the benefit of Buyer and Buyer's successors and assigns. Seller
represents and warrants that the following representations and warranties are
true and correct as of the date of this Agreement and shall be true and correct
as of the Closing Date. Whenever the term "to Seller's knowledge" is used, such
term shall mean only the actual knowledge of Xxxxx X. Xxxxx and Xxxxx Xxxxx,
Seller's personnel who are most knowledgeable about the Project, and are the
most likely to receive notices and other communications concerning the Project,
after due inquiry.
7.1.1 LEASES. All of the Leases entered into by Seller,
and to Seller's knowledge all other Leases, were negotiated at arm's length.
With respect to each of the Leases, and except as disclosed in the Basic Rent
Roll or as otherwise specifically disclosed in writing to Buyer, the following
information is true and correct: (a) each of the Leases is in full force and
effect according to the terms set forth therein and in the Basic Rent Roll; (b)
the Leases have not been modified, amended, or altered, in writing or otherwise,
other than as so disclosed in the Basic Rent Roll; (c) to Seller's knowledge, no
Tenant is in default under or in arrears in the payment of any sums or in the
performance of any obligations required of it under its Lease nor has any event
occurred under any Lease which with the giving of notice or passage of time
constitutes a default under any Lease; (d) Seller has not applied and after the
End of the Inspection Period shall not apply without Buyer's consent, which
consent shall not be unreasonably withheld, any security deposit to rent due
from any Tenant whose Lease shall not terminate prior to Closing; and (e) except
as may otherwise be provided in the Basic Rent Roll there are no unpaid
contingent or deferred allowances or incentive payments payable to Tenants. As
of the Effective Date, all of the GLA of the Project is leased except as
otherwise set forth on SCHEDULE 7.1.1 hereof.
7.1.2 RENT ROLL AND TENANTS. All information set forth in
the Basic Rent Roll is true and correct. Except with respect to the Leases or
other agreements described in the Basic Rent Roll and except as set forth in the
Title Commitment or Exception Documents, there are no Leases or other agreements
to which Seller is a party (or to Seller's knowledge otherwise) that grant any
right of possession to the Project or any part thereof. Additionally, no rent
concessions have
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been given to or asserted by any Tenant except as shown in the Basic Rent Roll
and the Leases described therein, no rent has been paid more than thirty (30)
days in advance by any Tenant except as shown in the Basic Rent Roll and the
Leases described therein, no Tenant has or has asserted any claim against Seller
for any security deposit or other deposits except as shown in the Basic Rent
Roll and the Leases described therein, and Seller has not received any notice
and otherwise has no actual knowledge that any Tenant has or has asserted any
defense or off-set to (i) rent accruing after the Closing Date or (ii) any other
obligations under its Lease and, except as may be disclosed on SCHEDULE 7.1.2
attached hereto, Seller has not received any notice that any Tenant has or has
asserted any claim of unfinished or defective tenant improvements constructed or
to be constructed by Seller except with respect to items which Seller has
corrected or is in the process of correcting. Seller does not have any
obligation to pay any interest or other charges to any Tenant with respect to
any security deposits held for the benefit of any Tenants except as disclosed in
the Basic Rent Roll or the Leases described therein.
7.1.3 AUTHORITY. Seller is a limited liability company,
properly organized and in good standing under the laws of the State of
Washington, and properly authorized to own real property in the State of
Washington. Seller is the owner of the Project and has the right, power, legal
capacity and power to enter into this Agreement and to convey the Project to
Buyer pursuant to the terms and provisions hereof and perform Seller's other
obligations hereunder. The parties and persons executing this Agreement on
behalf of Seller have been duly authorized to execute this Agreement. The
execution of this Agreement by Seller, the performance by Seller of Seller's
obligations hereunder, and the sale, transfer, conveyance and/or assignments
contemplated hereby, do not require the consent of any third party (including,
without limitation, any governmental entity) except to the extent such consents
have been obtained.
7.1.4 CONFORMANCE WITH LAWS. To Seller's knowledge and
except where the failure to do so would not have a material adverse effect, the
Project, including the Improvements as constructed and as operated by Seller,
conforms to, and is operated, maintained, and leased in accordance with, all
applicable city, county, state, federal and other applicable laws, statutes,
ordinances, rules and regulations.
7.1.5 BUILDING DOCUMENTS. Except for the Building
Documents, the Exception Documents and other materials delivered or made
available to Buyer, to Seller's knowledge, there are no other documents or
agreements binding on Buyer and/or the Project, after Buyer's acquisition of the
Project, which would have a material adverse effect on the value or operation of
the Project. Except for proprietary documents that either were executed or
delivered in connection with acquisition of the Project by Seller or relate to
construction activities at the Project and that are not reasonably necessary for
Buyer's ownership, use, operation or management of the Project, copies of all of
Seller's books and records relating to the ownership, operation and management
of the Project are being delivered to Buyer pursuant to SECTION 3.1 hereof or
are available for Buyer's inspection at the property management office at the
Project.
7.1.6 NO BANKRUPTCY PROCEEDINGS. Seller has not (i) made a
general assignment for the benefit of creditors, (ii) filed any voluntary
petition in bankruptcy or, to Seller's knowledge, suffered the filing of an
involuntary petition by Seller's creditors, (iii) suffered the appointment of a
receiver to take possession of all or substantially all of Seller's assets, (iv)
suffered the attachment or other judicial seizure of all, or substantially all,
of Seller's assets, (v) admitted in writing its inability to pay its debts as
they come due or (vi) made an offer of settlement, extension or composition to
its creditors generally.
7.1.7 NO DEFAULT. Except for such matters, if any, that
have been cured prior to the date hereof and except for matters that are in the
process of being cured in connection with completion of tenant improvements by
Seller, Seller has
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not received notice that Seller is in default under the terms of any Lease or
any other agreement pertaining to the Project, nor to Seller's knowledge has any
event occurred that shall constitute a default by Seller under such documents
and instruments following the passage of time or giving of notice or both.
7.1.8 NO HAZARDOUS WASTES. Except as may be disclosed in:
those certain (i) Phase I and Phase II Environmental Site Assessments on the
Project dated May 19, 2000, and February 20, 2001, respectively, addressed to
Landlord and prepared by Xxxxxxx Environmental Consultants, (ii) the "Phase I
Environmental Site Assessment Lakewood Towne Center 00000 Xxxxxxxx Xxxx Xxxxx XX
Xxxxxxxx, Xxxxxxxxxx," prepared by Xxxxxxx Environmental Consultants, dated
February, 2002 (the "Phase I Report"), and (iii) the other reports and
correspondence listed on SCHEDULE 7.1.8 attached hereto (collectively, the
"Environmental Reports"), to Seller's knowledge there are no Hazardous
Substances on, under or around the Project, in excess of levels permitted by
applicable law or requiring any special handling beyond that customary in other
shopping centers or any notifications required by law, and Seller has received
no written notice from any third parties or any federal, state or local
governmental agency, indicating that any hazardous substance remedial or
clean-up work will be required; (y) there have not been any on-site spills,
releases, discharges or disposal of Hazardous Substances which have occurred on
the Project during Seller's ownership of the Project or to Seller's actual
knowledge, prior to Seller's ownership; and (z) to Seller's knowledge, there are
not now, nor have there been, any underground storage tanks on the Project. For
purposes of this Agreement, the term "Hazardous Substances" shall include all
substances which are classified as hazardous substances or hazardous wastes
under any of the following laws, rules and regulations: (i) the Toxic Substances
Control Act, 15 U.S.C., Section 2601 et seq., (ii) the Clean Water Act, 33
U.S.C., Section 1251 et seq., (iii) the Resource and Conservation and Recovery
Act, 42 U.S.C., Section 6901 et seq., (iv) the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C., Section 9601, et seq., or
(v) other federal or Washington laws, rules or regulations.
7.1.9 NO LITIGATION. Except as may be disclosed in
SCHEDULE 7.1.9 hereof or as otherwise specifically disclosed in writing to
Buyer, Seller has no notice, nor is Seller otherwise aware of, any litigation
relating to the Project, or, to the best of Seller's knowledge, is there any
pending or threatened litigation, or asserted or unasserted claim, relating to
the Project. Seller maintains commercial general liability insurance for the
Project which, in Seller's opinion, should cover any liability of Seller with
respect to the "Potential Claims" disclosed on SCHEDULE 7.1.9 attached hereto in
excess of Seller's insurance deductibles therefor.
7.1.10 NO NOTICES. Seller has not received, and has no
knowledge of, any notification from any city, county, state or federal authority
having jurisdiction over the Project requiring any work to be done to, or
affecting the use of, the Project or any portion thereof. Seller has received no
notice from any insurance carrier, nor is Seller aware, of defects or
inadequacies in the Project that if not corrected would result in termination of
insurance coverage or increase in insurance costs.
7.1.11 NO UNDISCLOSED ASSESSMENTS. To Seller's knowledge,
there are no taxes, assessments or bonds affecting the Property, or any portion
thereof, except as disclosed in the Title Commitment or in the tax bills
delivered to Buyer. Seller has no understanding or agreement with any taxing
authority respecting the imposition or deferment of any taxes or assessments
respecting the Project; however, Seller is aware that there is an agreement
between the City of Lakewood and ATC Realty Sixteen, Inc., concerning the
dedication to the public of 00xx Xxxxxx.
7.1.12 NO VIOLATION OF OTHER AGREEMENTS. Neither this
Agreement nor anything provided to be done hereunder (including, but not limited
to, the transfer of the Project to Buyer) violates or shall violate any
contract, document, understanding, agreement or instrument to which Seller is a
party or by which Seller
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may be bound, or any contract, document, understanding, agreement or instrument
affecting the Project.
7.1.13 OPERATING STATEMENTS. All operating statements
delivered to Buyer by Seller for periods commencing January 1, 2002 and
thereafter are, to Seller's knowledge: accurate, true and correct, have been
accurately compiled from the books and records of the Project and accurately set
forth the results of the operation of the Project for the periods covered;
except as disclosed in such statements, there has been no material adverse
change in the condition or operation of the Project since the period covered by
the operating statements; and the financial records kept by Seller reflect all
material transactions affecting or relating to the Project.
7.1.14 PROJECT CONSTRUCTION. Except where the failure to do
so would not have a material adverse effect on the Project, the Improvements
constructed by Seller since November 1, 2001, were constructed in substantial
conformance with the plans and specifications therefor, as well as documents
approved by the appropriate governmental officials, and, to Seller's knowledge
and except for punch list items which Seller is in the process of correcting,
are free of construction defects.
7.1.15 SERVICE CONTRACTS. Except for the Service Contracts
delivered to Buyer pursuant to SECTION 3.1.3 hereof, there are no contracts or
other oral or written agreements for services, supplies or materials, affecting
the use, operation or management of the Project that will continue in effect
after the Closing Date and Buyer will not have any obligations under any
construction contracts for tenant improvements or other capital items entered
into by Seller after the Closing hereunder, and none of such construction
contracts will have any material adverse affect on the Project. There are no
Service Contracts relating to the maintenance or operation of the Project that
cannot be terminated on notice of thirty (30) days or less, without cost or
expense to Buyer except for the Readerboard Sign Contract, which Buyer shall
assume at the Closing. Seller is also a party to an exclusive use listing
agreement with CB Xxxxxxx Xxxxx with respect to the Project and the Neighborhood
Center. Seller has the right to terminate such listing agreement with respect to
the Project in connection with the sale of the Project to Buyer.
7.1.16 UTILITIES AVAILABLE. All utilities necessary for the
operation of the Project in accordance with its intended use are available to
the Land.
7.1.17 ZONING AND OTHER GOVERNMENTAL INFORMATION. To
Seller's knowledge: there is no pending or threatened proceeding to alter or
restrict the zoning restrictions applicable to the Project and there is no
pending or threatened action or governmental proceeding in eminent domain or
zoning change that would materially adversely affect the Project. Seller is
obligated to dedicate 00xx Xxxxxx to the public and it is contemplated that such
dedication will occur prior to the Closing Date.
7.1.18 PERMITS AND AUTHORIZATIONS. SCHEDULE 7.1.18
constitutes a list, to Seller's knowledge, of all of the material permits and
authorizations issued to Seller and in Seller's possession or control in effect
as of this date with respect to the Project (including but not limited to
certificates of occupancy or local equivalent). Seller shall use Seller's
diligent efforts to maintain all permits and authorizations with respect to the
Project now in effect in effect as of the Closing Date and such permits and
authorizations will be delivered to Buyer on the Closing Date. Material pending
applications, if any, will not be withdrawn or permitted to lapse without
Buyer's consent, which consent shall not be unreasonably withheld, and Seller
shall promptly notify Buyer of all material pending applications.
7.1.19 NO PURCHASE RIGHTS. Except as may be set forth in
the Leases, Seller has not granted, and to Seller's knowledge no prior owner has
granted,
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any Tenant under any lease or other person any option, right of first refusal or
other right to purchase the Project as a whole that is currently in effect.
7.2 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller, for the
benefit of Seller and Seller's successors and assigns, that the following
statements are true as of the date of this Agreement, and shall be true as of
the Closing Date except to the extent that Buyer gives Seller written notice of
changes to the representations and warranties prior to the Closing Date.
7.2.1 AUTHORITY; REQUIRED APPROVALS. Buyer is an Illinois
corporation, properly organized under the laws of the State of Illinois. Buyer
has the right, power, legal capacity and power to enter into this Agreement and
to acquire the Project from Seller pursuant to the terms and provisions hereof
and perform Buyer's obligations hereunder. The parties and persons executing
this Agreement on behalf of Buyer have been duly authorized to execute this
Agreement. All required approvals or consents have been obtained in connection
with the execution of this Agreement by Buyer and with the performance by Buyer
of Buyer's obligations hereunder. Buyer has full right and authority to enter
into and fully perform its obligations under this Agreement.
7.2.2 NO CONFLICTS. Neither this Agreement nor anything
provided to be done hereunder violates or shall violate any contract, document,
understanding, Agreement or instrument to which Buyer is a party or by which
Buyer may be bound.
7.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Buyer and Seller in this
Agreement shall survive for a period of twelve (12) months after the Closing
Date and neither party may bring an action against the other for a claim of
misrepresentation or a breach of a representation or warranty or a similar claim
later than the date twelve (12) months after the Closing Date (which date for
bringing an action shall be extended to the date twelve (12) months after the
Closing Date provided that the party bringing the action provided written notice
of the claim to the other party prior to the date twelve (12) months after the
Closing Date) and any such claim subsequently filed shall be barred.
7.4 "AS IS"; "WHERE IS".
Notwithstanding anything to the contrary herein, it is
expressly understood and agreed that subject to the right of Buyer to terminate
at or prior to the End of the Inspection Period and except for the
representations and warranties of Seller set forth in SECTION 7.1 of this
Agreement, Buyer is acquiring the Property "As Is" and "Where Is" and that
Seller has not made any other representations or warranties, expressed or
implied with respect to the quality, physical condition, expenses, value of the
Project, improvements thereon or any other matter or thing affecting or related
to the Project (including without limitation, warranties of habitability,
warranties of merchantability and/or fitness for a particular purpose), which
might be pertinent in considering whether to purchase the Project, and Buyer
does hereby expressly acknowledge that no such other representations or
warranties have been made. Seller is not liable or bound in any manner by any
warranties, either expressed or implied, guarantees, promises, statements,
representations, or information pertaining to the Project or the value thereof
made or furnished by any broker, agent, employee, servant or other person
representing or purporting to represent Seller.
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8. TERMINATION OF AGREEMENT
8.1 TERMINATION.
In the event of (i) a default by Seller, or (ii) the failure
of any of Buyer's Conditions or other conditions to the Closing to be satisfied
or waived by Buyer, or (iii) a termination of this Agreement pursuant to the
operation of SECTION 11.1, then and in any of such events, this Agreement may be
canceled and terminated by Buyer. In the event that Buyer terminates this
Agreement pursuant to the immediately preceding sentence or if Seller terminates
this Agreement because of the failure of any of Seller's Conditions, all funds
and documents previously delivered, including without limitation copies thereof,
shall be returned to the party delivering same; provided however, in the event
the Closing fails to occur by reason of Buyer's default, then Seller shall be
entitled solely to liquidated damages as provided in SECTION 8.2. In the event
of a default by Seller, including, but not limited to, any material incorrect
representation(s) or warranty(ies), whether or not such default results in
termination, Buyer shall have such remedies against Seller as may be available
to Buyer either at law or in equity, including the right to specifically enforce
this Agreement.
8.2 LIQUIDATED DAMAGES.
SELLER WAIVES THE RIGHT TO SPECIFICALLY ENFORCE THIS
AGREEMENT. IN THE EVENT THE CLOSING FAILS TO OCCUR BY REASON OF BUYER'S DEFAULT
AFTER THE END OF THE INSPECTION PERIOD, SELLER AND BUYER AGREE THAT, BASED ON
THE CIRCUMSTANCES NOW EXISTING, KNOWN OR UNKNOWN, SELLER AND BUYER EACH
RECOGNIZE AND AGREE THAT IT WOULD BE EXCESSIVELY COSTLY AND IMPRACTICABLE TO
ESTABLISH SELLER'S DAMAGES BY REASON OF BUYER'S DEFAULT AND IT WOULD BE
REASONABLE TO AWARD SELLER LIQUIDATED DAMAGES IN THE AMOUNT OF THE XXXXXXX MONEY
DEPOSIT MADE BY BUYER; PROVIDED, HOWEVER, IN ANY EVENT IN WHICH THE XXXXXXX
MONEY 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 BUYER UPON SELLER'S EXERCISE OF SUCH REMEDY. THE PARTIES
ACKNOWLEDGE THAT THIS PROVISION IS INTENDED TO SATISFY THE REQUIREMENTS OF RCW
64.04.005(1)(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 BUYER UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT; AND DOES NOT AFFECT
SELLER'S RIGHT TO RECOVER ATTORNEYS' FEES IN ANY ACTION COMMENCED WITH RESPECT
TO THIS AGREEMENT. BOTH PARTIES AGREE THAT SUCH AMOUNT STATED AS LIQUIDATED
DAMAGES IS A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN THE EVENT OF BUYER'S
DEFAULT AND SUCH AMOUNT SHALL BE IN LIEU OF ANY OTHER MONETARY OR EQUITABLE
RELIEF TO WHICH SELLER MAY OTHERWISE BE ENTITLED BY VIRTUE OF THIS AGREEMENT OR
BY OPERATION OF LAW. ACCORDINGLY, SELLER SHALL BE ENTITLED TO RETAIN SUCH AMOUNT
AS LIQUIDATED DAMAGES FOR BUYER'S BREACH OF THIS AGREEMENT AND FAILURE TO
COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED HEREIN. BUYER'S REFUSAL TO
CLOSE BECAUSE OF BUYER'S REJECTION OF THE PROJECT PRIOR TO THE END OF THE
INSPECTION PERIOD FOR ANY REASON, OR FOR NO REASON WHATSOEVER, SHALL NOT BE A
DEFAULT. SELLER HEREBY AGREES THAT LIQUIDATED MONETARY DAMAGES, AS STIPULATED
HEREINABOVE, SHALL BE THE SOLE REMEDY OF SELLER IN THE EVENT OF A DEFAULT BY
BUYER AND SELLER HEREBY WAIVES ANY RIGHT TO SPECIFIC PERFORMANCE OF BUYER'S
OBLIGATIONS HEREUNDER.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
----------------- ------------------
Buyer's Initials Seller's Initials
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9. REAL ESTATE COMMISSION
Seller has been represented in this transaction by Secured Capital
Corporation ("SCC") and SCC has retained CB Xxxxxxx Xxxxx ("CBRE"). Seller shall
be responsible for any fees or commissions to SCC and SCC shall be responsible
for any fee or commission payable to CBRE. Seller and Buyer represent and
warrant to each other that they have employed no other broker and/or finder in
connection with this Agreement. Seller and Buyer each agree that, to the extent
a brokerage and/or finder's fee shall have been earned or claimed in connection
with this Agreement, the payment of such fees and the defense of any action in
connection therewith shall be the sole and exclusive obligation of the party who
requested the services of the broker and/or finder. In the event that any claim,
demand or cause of action for brokerage and/or finder's fees is asserted against
a party to this Agreement who did not request such services, the party through
whom the broker or finder is making the claim shall indemnify, defend (with an
attorney of indemnitee's choice) and hold harmless the other party from and
against any and all such claims, demands and causes of action.
10. ASSIGNMENT
Buyer shall not have the right to assign Buyer's interest under this
Agreement without Seller's prior written consent, which consent may be withheld
in Seller's sole discretion; provided however, subject to Buyer giving written
notice to Seller within five (5) business days after any such assignment, Buyer
shall have the right to assign Buyer's rights and obligations under this
Agreement to any one (1) (but not more than one) subsidiary of a real estate
investment trust affiliated with The Inland Real Estate Group, Inc. provided (i)
such assignee expressly assumes the obligations of Buyer hereunder in writing
and an originally executed copy of any such assignment and assumption (in which
Seller is named a third party beneficiary) is delivered to Seller prior to the
Closing Date, and (ii) such assignee is, or on the Closing Date will be,
properly authorized to own real property in the State of Washington. Any such
assignee shall succeed to all the rights of Buyer hereunder. Notwithstanding the
foregoing, no such assignment shall relieve Buyer from Buyer's liability under
this Agreement.
11. MISCELLANEOUS
11.1 MATERIAL DAMAGE OR CONDEMNATION.
If the Project is materially damaged or if the Project or any
part thereof is materially taken by condemnation or there is any condemnation or
threatened condemnation of any direct or indirect access to the Project prior to
the Closing Date, then Buyer shall have the right to terminate this Agreement
and reject the Project and, on Buyer's written notice to Seller and Escrow
Holder, the Xxxxxxx Money Deposit shall be returned to Buyer and this Agreement
shall be terminated forthwith and neither Seller nor Buyer shall thereafter have
any obligation to each other, except as set forth in SECTION 8.1 above and
except as otherwise specifically set forth herein with respect to matters which
survive termination of this Agreement. In the alternative, Buyer may elect to
complete the transaction on the terms set forth in this Agreement and, in such
event, or in the event there is damage to the Project that does not result in
the Project being "materially damaged" as defined below (provided Seller and
Buyer agree in their respective sole discretion on the amount of a reduction in
the Purchase Price to reflect the costs of repairing such damage), and Seller
shall retain the right to all insurance proceeds allocable to the restoration of
the damaged Project or given as consideration for the taking. By "materially
damaged," Seller and Buyer mean damaged to the extent (i) of any uninsured
damage unless Seller agrees to pay Buyer the entire amount of such
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uninsured damage, (ii) the cost to repair such damage or destruction to the
Project exceeds the sum of Two Hundred Fifty Thousand Dollars ($250,000.00), or
(iii) any damage that allows a Lead Tenant to terminate its Lease. By
"materially taken," Seller and Buyer mean a condemnation or taking by eminent
domain occurring on the Project that results in the elimination of more than
five percent (5%) of the Project, the elimination of more than five percent (5%)
of the total gross square footage of the land comprising the Land, the
elimination of more than either five percent (5%) of the parking areas at the
Project or such portion of the parking areas such that the remaining parking
areas do not provide sufficient parking to comply with applicable governmental
requirements, or the elimination of any GLA in the Improvements at the Project
or which otherwise permits any Lead Tenant to xxxxx its rent or terminate its
Lease. The phrase "taking by eminent domain" includes any notices of taking or
commencement of proceedings under eminent domain power, but excludes any claim
for inverse condemnation. Seller is not aware of any claim or threatened claim
of inverse condemnation.
11.2 ATTORNEYS' AND OTHER FEES.
Should either party institute any action or proceeding to
enforce or interpret this Agreement or any provision hereof, for damages by
reason of any alleged breach of this Agreement or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party in any such action
or proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' and other fees, incurred by the
prevailing party in connection with such action or proceeding. The term
"attorneys' and other fees" shall mean and include attorneys' fees, accountants'
fees, and any and all other similar fees incurred in connection with the action
or proceeding and preparations therefor. The term "action or proceeding" shall
mean and include actions, proceedings, suits, arbitrations, appeals and other
similar proceedings.
11.3 NOTICES.
Any notice, demand, request, covenant, approval or other
communication to be given by one party to the other shall be given by personal
service, express mail, Federal Express, DHL or any other similar form of
nationally recognized airborne/overnight delivery service, or mailing in the
United States mail (certified mail, return receipt requested), or by
electronically-confirmed telefacsimile transmission, addressed to the parties at
their respective addresses as follows:
If to Buyer:
c/o Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxx Xxxxxxx
Telephone: (630) 218 -4948
Facsimile: (000) 000-0000
With a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxx, Esq.
Telephone: (630) 218 -8000 Ext. 2854
Facsimile: (000) 000-0000
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If to Seller:
MBK Northwest, LLC
Attention: Xx. Xxxxx X. Xxxxx
0000 X.X. Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxx 00000
Telephone: (503) 636 -2800
Facsimile: (000) 000-0000
With a copy to:
Xxxx, Xxxx & Thel LLP
Attention: Al Thel
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice shall be deemed to have been given (i) upon delivery, if
personally delivered or given by any nationally recognized form of
airborne/overnight delivery service or electronically-confirmed telefacsimile
transmission, or (ii) upon receipt or refusal to accept delivery, whichever is
earlier, if mailed. Either party may change the address at which it desires to
receive notice upon giving written notice of such request to the other party.
Buyer and Seller, and their respective counsel, hereby agree that notices may be
given hereunder by the parties' respective counsel, and that if any
communication is to be given hereunder by Buyer's or Seller's counsel, such
counsel may communicate directly with all principals, as required to comply with
the foregoing provisions.
11.4 TIME OF ESSENCE.
Time is of the essence of this Agreement and each and every
term and provision hereof.
11.5 WAIVER OR MODIFICATION; NOT RECORDABLE.
A modification of any provision herein contained, or any other
amendment to this Agreement, shall be effective only if the modification or
amendment is in writing and signed by both Seller and Buyer. No waiver by any
party hereto of any breach or default shall be considered to be a waiver of any
other breach or default. The waiver of any condition shall not constitute a
waiver of any breach or default with respect to any covenant, representation or
warranty.
11.6 SUCCESSORS AND ASSIGNS; SURVIVAL; JOINT AND SEVERAL LIABILITY.
This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, successors and assigns. All
representations and warranties contained herein shall survive the Closing for
the period set forth in SECTION 7.3 hereof. The term "Buyer" as used herein
shall mean and include Buyer's successors and assigns under this Agreement. If
either Seller or Buyer shall consist of one or more persons or entities, the
obligations of such party shall be the joint and several obligations of each
person or entity constituting Seller or Buyer, respectively.
11.7 NUMBER AND GENDER.
As used in this Agreement, the neuter includes the masculine
and feminine, and the singular includes the plural.
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11.8 GOVERNING LAW.
This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with, the laws of the State of Washington
applicable to agreements made and to be performed wholly within the State of
Washington.
11.9 CONSTRUCTION.
Headings at the beginning of each Article, Section, and
subsection are solely for the convenience of the parties and are not a part of
this Agreement. All exhibits attached hereto are hereby incorporated herein by
this reference. Unless otherwise indicated, all references herein to Articles,
Sections, subsections, paragraphs, subparagraphs or provisions are to those in
this Agreement. Any reference to an Article herein includes all Sections thereof
and any reference to a Section herein includes all subsections thereof. This
Agreement shall not be construed as if it had been prepared by only Buyer or
Seller, but rather as if both Buyer and Seller had prepared the same. In the
event any portion of this Agreement shall be declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall be
deemed severed from this Agreement, and the remaining parts hereof shall remain
in full force and effect, as fully as though such invalid, illegal or
unenforceable portion had never been part of this Agreement.
11.10 INTEGRATION OF OTHER AGREEMENTS.
This Agreement supersedes all previous contracts,
correspondence and documentation relating to the sale of the Project and Seller
and Buyer agree that the Letter of Intent between Seller and Buyer dated April
29, 2004, concerning Buyer's acquisition of the Project is hereby terminated and
of no further force or effect whatsoever. Any oral representations or
modifications concerning this Agreement shall be of no force or effect.
11.11 LIKE-KIND EXCHANGE.
Subject to the terms and conditions of this SECTION 11.11,
Seller and Buyer agree to cooperate with the other in effecting a simultaneous
or delayed like-kind exchange of real property pursuant to Section 1031 of the
United States Internal Revenue Code of 1986, as amended (the "Code") and similar
provisions of applicable state law provided that: (i) the cooperating party
shall incur no additional costs, expenses or liabilities as a result of, or in
connection with, the exchange; (ii) the closing of the escrow for the sale of
the Property to Buyer shall not be delayed as a result of the exchange but shall
occur within the time period contemplated by this Agreement; (iii) all
representations and warranties of the requesting party contained in this
Agreement shall remain in full force and effect as if no exchange has occurred;
(iv) neither party shall have any obligation to act as an exchanging party and
shall not be obligated to take title to any exchange property; and (v) the
cooperating party shall not incur any liability whatsoever to any party as a
result of such party's involvement in the exchange. Neither party is making any
representation mat any exchange contemplated by this SECTION 11.11 shall qualify
as an exchange within the meaning of Section 1031 of the Code or any provisions
of applicable state law.
11.12 INDEMNIFICATION BY SELLER.
Seller agrees to indemnify, defend and hold Buyer harmless of
and from any and all claims, demands, losses, liabilities, causes of action,
costs or expenses arising out of any act, omission, event or set of facts
occurring with respect to the Project prior to the Closing Date, except for
claims arising from actions of Buyer or Buyer's agents or employees on the
Project. Seller shall also indemnify, defend and
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hold Buyer, and Buyer's agents and employees, harmless of and from any and all
claims, demands, losses, liabilities, causes of action, costs or expenses
(including reasonable attorneys' fees), directly or indirectly arising in
connection with the breach of any covenant, warranty or representation of Seller
under the terms of this Agreement.
11.13 DUPLICATE ORIGINALS; COUNTERPARTS.
This Agreement may be executed in any number of duplicate
originals, all of which shall be of equal legal force and effect. This Agreement
may be executed in any number of counterparts, each of which shall be an
original but all of which shall constitute one and the same instrument.
11.14 NON-WAIVER OF RIGHTS.
No failure or delay of either party in the exercise of any
right given to such party hereunder shall constitute a waiver thereof unless the
time specified herein for exercise of such right has expired, nor shall any
single or partial exercise of any right preclude other or further exercise
thereof or of any other right.
11.15 DAYS.
The term "days," as used herein, shall mean actual days
occurring, including Saturdays, Sundays and holidays (Federal and the State of
Washington). The term "business days" shall mean days other than Saturdays,
Sundays and holidays. If any item must be accomplished or delivered hereunder on
a day that is not a business day, it shall be deemed to have been timely
accomplished or delivered if accomplished or delivered on the next following
business day.
11.16 INCORPORATION OF EXHIBITS.
All schedules and exhibits attached hereto and referred to
herein are incorporated in this Agreement as though fully set forth herein.
These schedules and exhibits are:
Exhibit "A" Assignment of Intangible Property
Exhibit "B" Assignment of Leases
Exhibit "C" Assignment of Service Contracts
Exhibit "D" Xxxx of Sale
Exhibit "E" Legal Description of Land
Exhibit "E-1" Site Plan
Exhibit "F" Notice to Tenants
Exhibit "G" Rent Roll
Exhibit "H" Escrow and Leasing Agreement
Exhibit "I" Tenant Estoppel
Exhibit "I-1" Seller Estoppel
Exhibit "J" Statutory Warranty Deed
Exhibit "K" Affidavit of Non-Foreign Person Status
Exhibit "L" Certificate of Truth of Representations
and Warranties (Seller)
Exhibit "L-1" Certificate of Truth of Representations
and Warranties (Buyer)
Exhibit "M" Restrictive Use Declaration
Exhibit "N" Theatre Lease Amendment
Exhibit "O" Master Lease
Schedule 7.1.1 Unleased Space
Schedule 7.1.2 Unfinished/Defective Tenant Improvements
Schedule 7.1.8 Environmental Matters
Schedule 7.1.9 Litigation
Schedule 7.1.18 Permits, Authorizations
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11.17 IRS FORM 1099-S.
For purposes of complying with Section 6045 of the Internal
Revenue Code of 1986 ("Code"), as amended, Escrow Holder shall be deemed the
"person responsible for closing the transaction," and shall be responsible for
obtaining the information necessary to file with the Internal Revenue Service
Form 1099-S, "Statement for Recipients of Proceeds From Real Estate, Broker and
Barter Exchange Transactions."
11.18 FURTHER ASSURANCES.
Buyer and Seller each agree to execute any and all other
documents and to take any further actions reasonably necessary to consummate the
transaction contemplated hereby; provided, however, that such documents and
actions shall not materially increase the obligations of Buyer or Seller
otherwise set forth herein.
11.19 MERGER.
Except as otherwise expressly set forth herein, the delivery
of the Deed and any other documents and instruments by Seller and the acceptance
and recordation thereof by Buyer shall effect a merger, and be deemed the full
performance and discharge of every obligation on the part of Buyer and Seller to
be performed hereunder except to the extent this Agreement specifically provides
for obligations or covenants to be performed by either Seller or Buyer after the
Closing Date.
11.20 CONFIDENTIALITY.
At all times during the Contract Period, and thereafter in the
event Buyer does not acquire the Project, Buyer agrees not to disclose to anyone
other than Buyer's representatives, consultants, lender(s), agents or employees,
the terms of this Agreement or the transaction contemplated hereunder except to
the extent such information is otherwise available to the public, as may be
required by law or in connection with Buyer's due diligence investigation of the
Project.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the
date first above written.
"Buyer"
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ Xxx Xxxxxxx
-------------------------------
Xxx Xxxxxxx
Its: Senior Vice President
Buyer's Taxpayer Identification Number: 00-0000000
"Seller"
MBK NORTHWEST, LLC, a Washington limited
liability company
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx, President
Seller's Taxpayer Identification Number: 00-0000000
-36-
-37-
ESCROW HOLDER'S RECEIPT
The undersigned, as Escrow Holder, hereby acknowledges receipt of the
foregoing Escrow Instructions, accepts said escrow account, and agrees to carry
out said Escrow Instructions and hold and dispose of the funds and documents
deposited in said account in accordance with such instructions.
Dated: MAY 11, 2004 CHICAGO TITLE INSURANCE
COMPANY
By: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
Escrow No.: 24051936
Escrow Officer: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
E-Mail Address: xxxxxxxx@xxx.xxx
Transnation Title Order No.: 10172758
Title Officer: Xxxxx Xxxxx
Telephone No.: (000) 000-0000 (cell: (000) 000-0000) [try cell phone first]
Fax No.: (000) 000-0000
E-Mail Address: xxxxxx@xxxxxx.xxx
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EXHIBIT "A"
ASSIGNMENT OF INTANGIBLE PROPERTY
THIS ASSIGNMENT OF INTANGIBLE PROPERTY ("Assignment") is made as of
____________, 200_, by MBK NORTHWEST, LLC, a Washington limited liability
company ("Assignor"), in favor of _____________________________________________
____________ ("Assignee"), with reference to the following facts:
A. Assignor is the owner and record title holder of that certain real
property commonly known, along with certain other real property, as Lakewood
Towne Center which is located in the City of Lakewood, County of Xxxxxx, State
of Washington.
B. Simultaneously herewith, Assignee has acquired from Assignor
Assignor's interest in and to said real property and certain personal and other
property relating thereto (collectively the "Property"), in accordance with the
terms and conditions of that certain Agreement of Purchase and Sale of Real
Property and Escrow Instructions dated as of __________, 2004 (the "Purchase
Agreement"), by and between Assignor, as Seller, and __________________________,
as Buyer [_______ has assigned all of its right, title and interest in and to
the Purchase Agreement and the Property to Assignee and Assignee has assumed all
of ______'s obligations thereunder];
C. Assignee, as a condition of the acquisition of the Property under the
Purchase Agreement, has required an assignment of certain intangible property
and rights as a part of the Property being acquired;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged and confessed, Assignor hereby agrees as
follows:
1. ASSIGNMENT OF CONTRACTS AND RIGHTS
Assignor has granted, assigned, transferred, and set over, and by these
presents does hereby grant, assign, transfer and set over, to Assignee all of
Assignor's right, title, and interest in and to the following (collectively, the
"Intangible Property"):
1.1 The intangible property, if any, described in Schedule "A-1"
attached hereto and incorporated herein by this reference;
1.2 All permits, licenses, certificates of occupancy, Tenant
files, and to the extent transferable by Seller, warranties and guaranties,
all awards hereafter made or to be made to Seller relating to the Land or
the Improvements or any part thereof by reason of a taking by eminent
domain or conveyance in lieu thereof, use and operating permits and
licenses, and all other licenses and permits, approvals, and certificates
obtained or held in connection with the ownership or use of the Property;
1.3 All copyrights, designs, artwork, graphics, licenses, and the
right to use any item of the foregoing type relating to the Property;
1.4 All of the records, plans, specifications, maps, designs,
reports, drawings, applications to governmental entities and all other
documents and agreements of a like nature relating to or prepared in
connection with the use and operation of the Property, if available to
Assignor; and
A-1
1.5 The non-exclusive right, without warranty as to title, to use
the name "Lakewood Towne Center" in connection with the operation of the
Property.
Assignor represents and warrants to Assignee that, to Assignor's
actual knowledge, use of the Intangible Property by Assignor and Assignee
has not and will not infringe on the rights of any third parties and
Assignor has the full right and authority to assign Assignor's interest in
the Intangible Property, if any, to Assignee to the extent such items may
be lawfully transferred: (i) free and clear of all liens, encumbrances and
rights of others and (ii) without consent of any other party, in each case
subject however to the representations, warranties, exclusions, limitations
and other provisions contained in the Purchase Agreement, which is
incorporated herein by this reference, including without limitation the
provisions of SECTION 7.3 of the Purchase Agreement.
2. BINDING ON SUCCESSORS AND ASSIGNS
All the covenants and agreements hereinabove contained shall apply to and
bind Assignor and Assignor's assigns. The term "Assignee" as used in this
Assignment shall mean and include Assignee's successors and assigns.
3. EFFECTIVE DATE
The effective date of this Assignment shall be the date hereof.
4. COUNTERPARTS
This Assignment may be executed in one (1) or more counterparts, all of
which shall constitute a single agreement and each of which shall be an original
for all purposes.
5. ATTORNEYS' FEES
In the event of any litigation between Assignor and Assignee arising out of
the obligations of Assignor or Assignee under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, this Assignment has been executed as of the date first
set forth above.
"Assignor"
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
Schedule A-1: List of Intangible Property
A-2
EXHIBIT "B"
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES ("Assignment") is made as of ______________,
200_, by and between MBK NORTHWEST, LLC, a Washington limited liability company
("Assignor"), and _____________________________________________________________
("Assignee"), with reference to the following facts:
A. Assignor is the owner and record title holder of that certain real
property commonly known, along with certain other real property, as Lakewood
Towne Center which is located in the City of Lakewood, County of Xxxxxx, State
of Washington.
B. Simultaneously herewith, Assignee has acquired from Assignor,
Assignor's interest in and to said real property and certain personal and other
property relating thereto (collectively the "Property"), in accordance with the
terms and conditions of that certain Agreement of Purchase and Sale of Real
Property and Escrow Instructions dated as of ___________, 2004 (the "Purchase
Agreement"), by and between Assignor, as Seller, and ____________, as Buyer
[________ has assigned all of its right, title and interest in and to the
Purchase Agreement and the Property to Assignee and Assignee has assumed all of
__________'s obligations thereunder];
C. A portion of said Property has been demised to various parties,
hereinafter referred to as "Tenants", by the contractual agreements set forth in
various leases, hereinafter referred to as the "Leases", which are listed and
described on Schedule "B-1" attached hereto, and incorporated herein by this
reference;
D. Assignee, as a condition of the acquisition of the Property under the
Purchase Agreement, has required an assignment of the Leases as a part of the
Property being acquired;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged and confessed, the parties hereby agree
as follows:
1. ASSIGNMENT OF LEASES
Assignor has granted, assigned, transferred, and set over, and by these
presents does hereby grant, assign, transfer and set over, to Assignee the
Leases, together with any guaranties or letters of credit furnished by the
Tenants in connection therewith, and all rights of Assignor contained therein.
Assignor represents and warrants to Assignee that, to Assignor's knowledge,
Assignor has the full right and authority to assign, transfer and deliver all
such leases, guaranties or letters of credit to Assignee (i) free and clear of
all liens, encumbrances and rights of others except for the rights of Tenants
under the Leases, and (ii) without the consent of any other party, in each case
subject to the representations, warranties, exclusions, limitations and other
provisions contained in the Purchase Agreement, which is incorporated herein by
this reference, including without limitation the provisions of SECTION 7.3 of
the Purchase Agreement.
2. ASSIGNMENT OF SECURITY DEPOSITS
Concurrently herewith, Assignor has assigned, transferred, and delivered,
and does hereby assign, transfer and deliver, to Assignee all security deposits
and advance rentals presently held by Assignor under the Leases, which security
deposits and advance rentals are listed in Schedule "B-2" attached hereto, and
incorporated herein by
B-1
this reference, and Assignor hereby relinquishes all of Assignor's right, title,
and interest therein. Assignor represents and warrants to Assignee that, to
Assignor's knowledge, Assignor has the full right and authority to assign,
transfer and deliver all such security deposits and advance rentals to Assignee
(i) free and clear of all liens, encumbrances and rights of others except for
the rights of Tenants under the Leases, and (ii) without the consent of any
other party, in each case subject to the representations, warranties,
exclusions, limitations and other provisions contained in the Purchase
Agreement, which is incorporated herein by this reference, including without
limitation the provisions of SECTION 7.3 of the Purchase Agreement.
3. DUTIES AND OBLIGATIONS
As to each and all of the Leases hereby assigned, Assignor hereby delegates
to Assignee all of the duties and obligations of performance of and by the
landlord under each Lease arising from and after the Effective Date (defined
below); and for and in consideration of each of the Leases herein being assigned
to Assignee, Assignee hereby accepts this Assignment and agrees to assume and
perform, and hereby assumes, all of the duties, obligations, covenants,
agreements, promises, terms, conditions and provisions contained in each of the
Leases to be observed, kept, performed or complied with by landlord under each
of the Leases from and after the Effective Date, including, but not limited to,
the obligation to pay Tenants, in accordance with the Leases, the security
deposits and other deposits made by the Tenants, but only to the extent such
deposits have been disclosed by Assignor and delivered to Assignee.
4. HOLD HARMLESS
4.1 Assignor hereby covenants to Assignee to hold Assignee and the
Property harmless and hereby agrees to indemnify Assignee and the Property from
any claim, loss, liability, expense (including but not limited to reasonable
attorneys' fees), demand or cause of action which may be asserted against or
incurred by Assignee or the Property arising from, based upon or related to any
alleged or actual liability or obligation, whether matured or unmatured, or any
alleged or actual breach, failure, refusal or inability of Assignor to perform
any provision of any of the Leases in respect of the landlord thereunder which
occurred or should have occurred prior to the Effective Date.
4.2 Assignee hereby covenants to Assignor to hold Assignor harmless and
hereby agrees to indemnify Assignor from any claim, loss, liability, expense
(including but not limited to reasonable attorneys' fees), demand or cause of
action which may be asserted against or incurred by Assignor arising from, based
upon or related to (i) any claim made by a Tenant for return of such Tenant's
security deposit, provided such claim does not relate to any act or omission by
Assignor, as Landlord, and Assignor has disclosed and delivered such deposit to
Assignee and/or (ii) any alleged or actual breach or failure, refusal or
inability of Assignee to perform any provision of any of the Leases in respect
of the landlord thereunder which occurs after the Effective Date.
5. BINDING ON SUCCESSORS AND ASSIGNS
5.1 All the covenants and agreements of Assignor hereinabove contained
shall apply to and bind Assignor and Assignor's successors and assigns.
5.2 All the covenants and agreements of Assignee hereinabove contained
shall apply to and bind Assignee and Assignee's successors and assigns.
5.3 The term "Assignee" as used in this Assignment shall mean and include
Assignee's successors and assigns.
B-2
6. ATTORNEYS' FEES
In the event of any litigation between Assignor and Assignee arising out of
the obligations of Assignor or Assignee under this Assignment or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys' fees.
7. EFFECTIVE DATE
The effective date of this Assignment (the "Effective Date") shall be the
date hereof.
8. COUNTERPARTS
This Assignment may be executed in one (1) or more counterparts, all of
which together shall constitute a single agreement and each of which shall be an
original for all purposes.
IN WITNESS WHEREOF, this Assignment has been executed by Assignee and
Assignor as of the date first set forth above.
"Assignor"
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
"Assignee"
_____________________________________________
_____________________________________________
By:
----------------------------------------
Its:
----------------------------------------
Schedule X-x: Leases
Schedule B-2: Security Deposits and Advance Rentals
B-3
EXHIBIT "C"
ASSIGNMENT OF SERVICE CONTRACTS
THIS ASSIGNMENT OF SERVICE CONTRACTS ("Assignment") is made as of
___________, 200_, by and between MBK NORTHWEST, LLC, a Washington limited
liability company ("Assignor"), and ____________________________________________
__________ ("Assignee"), with reference to the following facts:
A. Assignor is the owner and record title holder of that certain real
property commonly known, along with certain other real property, as Lakewood
Towne Center which is located in the City of Lakewood, County of Xxxxxx, State
of Washington.
B. Simultaneously herewith, Assignee has acquired from Assignor,
Assignor's interest in and to said real property and certain personal and other
property relating thereto (collectively the "Property"), in accordance with the
terms and conditions of that certain Agreement of Purchase and Sale of Real
Property and Escrow Instructions dated as of ____________, 2004 (the "Purchase
Agreement"), by and between Assignor, as Seller, and ____________, as Buyer;
C. Assignee, as a condition of the acquisition of the Property under the
Purchase Agreement, has required an assignment of the certain contracts and
rights as a part of the Property being acquired;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged and confessed, the parties hereby agree
as follows:
1. ASSIGNMENT OF CONTRACTS AND RIGHTS
1.1 Assignor has granted, assigned, transferred, and set over, and by
these presents does hereby grant, assign, transfer and set over, to Assignee all
of Assignor's right, title, and interest in and to the following:
1.1.1 Those maintenance contracts, service contracts and other
contracts (collectively the "Service Contracts") relating to the Property and
listed on Schedule "C-1" attached hereto and incorporated herein by this
reference. Copies of the Service Contracts have been delivered to Assignee.
1.1.2 All of the guaranties, warranties, and agreements made by any
contractors, subcontractors, vendors, suppliers or any other person or entity
regarding their performance and the quality of their workmanship, and the
quality of materials provided, in connection with the construction, manufacture,
development, installation and operation of any and all of the improvements,
including buildings, parking areas, and landscaping areas, and all fixtures,
equipment and items of personal property located in such improvements, located
on or used in connection with the Property, and all contract rights under any
contract containing such guaranties, warranties and agreements; provided,
however, that Assignee does not assume any of the duties or obligations of
Assignor under any such contracts, this Assignment only being an assignment of
the rights of Assignor thereunder. All such guaranties, warranties and
agreements which are in writing or are otherwise known to Assignor are listed on
Schedule "C-2" attached hereto and incorporated herein by this reference, which
list Assignor certifies as being true, correct and complete. Copies of all such
guarantees, warranties and agreements have been delivered to Assignee.
C-1
Assignor represents and warrants to Assignee that, to Assignor's
knowledge, Assignor has the full right and authority to assign, transfer and
deliver Assignor's interest under all such Service Contracts and the guaranties,
warranties and agreements described in this Section 1.1 to Assignee subject only
to the limitations on transfer, if any, set forth in such documents, (i) free
and clear of all liens, encumbrances and rights of others, and (ii) except as
consent may be required under the terms of such Service Contracts or such
guaranties, warranties or agreements, without the consent of any other party, in
each case subject to the representations, warranties, exclusions, limitations
and other provisions contained in the Purchase Agreement, which is incorporated
herein by this reference, including without limitation the provisions of SECTION
7.3 of the Purchase Agreement.
2. DUTIES AND OBLIGATIONS
Assignor hereby delegates to Assignee all of the duties and obligations of
performance of and by the Assignor under each Service Contract arising from and
after the Effective Date; and for and in consideration of each of the Service
Contracts herein being assigned to Assignee, Assignee hereby accepts this
Assignment and agrees to assume and perform, and hereby assumes, all of the
duties, obligations, covenants, agreements, promises, terms, conditions and
provisions contained in each of the Service Contracts to be observed, kept,
performed or complied with by Assignor under each of the Service Contracts from
and after the Effective Date, to the extent the same have been disclosed to
Assignee by Assignor in writing prior to the date hereof.
3. HOLD HARMLESS
3.1 Assignor hereby covenants to Assignee to hold Assignee and the
Property harmless and hereby agrees to indemnify Assignee and the Property from
any claim, loss, liability, expense (including but not limited to reasonable
attorneys' fees), demand or cause of action which may be asserted against or
incurred by Assignee arising from, based upon or related to any alleged or
actual breach or failure, refusal or inability of Assignor to perform any
provision of any of the Service Contracts which occurred prior to the Effective
Date.
3.2 Assignee hereby covenants to Assignor to hold Assignor harmless and
hereby agrees to indemnify Assignor from any claim, loss, liability, expense
(including but not limited to reasonable attorneys' fees), demand or cause of
action which may be asserted against or incurred by Assignor arising from, based
upon or related to any alleged or actual breach or failure, refusal or inability
of Assignee to perform any provision of any of the Service Contracts which
occurs after the Effective Date.
4. BINDING ON SUCCESSORS AND ASSIGNS
4.1 All the covenants and agreements of Assignor hereinabove contained
shall apply to and bind Assignor and Assignor's successors and assigns.
4.2 All of the covenants and agreements of Assignee hereinabove contained
shall apply to and bind Assignee and Assignee's successors and assigns.
4.3 The term "Assignee" as used in this Assignment shall mean and include
Assignee's successors and assigns.
5. ATTORNEYS' FEES
In the event of any litigation between Assignor and Assignee arising out of
the obligations of Assignor or Assignee under this Assignment or concerning the
meaning
C-2
or interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such litigation, including, without
limitation, reasonable attorneys' fees.
6. EFFECTIVE DATE
The effective date of this Assignment (the "Effective Date") shall be the
date hereof.
7. COUNTERPARTS
This Assignment may be executed in one (1) or more counterparts, all of
which together shall constitute a single agreement and each of which shall be an
original for all purposes.
IN WITNESS WHEREOF, this Assignment has been executed by Assignee and
Assignor as of the date first set forth above.
"Assignor"
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
"Assignee"
_____________________________________________
_____________________________________________
By:
----------------------------------------
Its:
----------------------------------------
Schedule C-1: Service Contracts [INCLUDE READER BOARD CONTRACT]
Schedule C-2: Guaranties and Warranties
C-3
EXHIBIT "D"
XXXX OF SALE
FOR TEN DOLLARS ($10.00) AND OTHER VALUABLE CONSIDERATION, the receipt
and sufficiency of which is hereby acknowledged, MBK NORTHWEST, LLC, a
Washington limited liability company ("Seller"), hereby grants, sells,
transfers, assigns, conveys and delivers to __________________________________
____________ ("Buyer"), all of Seller's right, title and interest in and to all
furniture, furnishings, fixtures, equipment, appliances, supplies, construction
materials and other tangible personal property owned by Seller, listed and
described in Schedule "D-1" attached hereto and incorporated herein by this
reference (the "Personal Property").
The Personal Property is owned by Seller and located on or in,
attached to, or used in connection with that certain shopping center commonly
known as Lakewood Towne Center or the improvements located thereon (the land and
said improvements are collectively referred to herein as the "Project").
Seller represents and warrants to Buyer, and its successors and
assigns, which representation and warranty shall survive the closing for the
purchase of the Project and the Personal Property for a period of twelve (12)
months, that the Personal Property is free from all liens and encumbrances.
Assignor represents and warrants to Assignee that, to Assignor's knowledge,
Assignor has the full right and authority to assign, transfer and deliver the
Personal Property to Assignee (i) free and clear of all liens, encumbrances and
rights of others, and (ii) without the consent of any other party, in each case
subject to the representations, warranties, exclusions, limitations and other
provisions contained in the Purchase Agreement, which is incorporated herein by
this reference, including without limitation the provisions of SECTION 7.3 of
the Purchase Agreement.
In the event of any litigation between Seller and Buyer arising out of
the obligations of Seller or Buyer under this Xxxx of Sale or concerning the
meaning or interpretation of any provision contained herein, the losing party
shall pay the prevailing party's costs and expenses of such litigation,
including, without limitation, reasonable attorneys' fees.
Buyer shall have and hold the Personal Property for itself and for its
successors and assigns, and, subject to the foregoing, Seller does for itself,
and its successors and assigns, covenant and agree with Buyer to indemnify,
defend and warrant Buyer's title to the Personal Property and the rights of
Buyer, and its successors and assigns, against each and every person claiming
the Personal Property or any portion thereof.
EXECUTED as of _____________, 200_.
"Seller"
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
Schedule D-1: List of Personal Property
D-1
EXHIBIT "E"
DESCRIPTION OF LAND
[SUBJECT TO REVISION UPON RECORDATION OF AMENDED BINDING SITE PLAN]
XXXX 0, 0, 0, 0, 0 & 00 XX THE LAKEWOOD MALL BINDING SITE PLAN, AS RECORDED
UNDER RECORDING NO. 8802120287, AND LOT 9G OF THE AMENDED BINDING SITE PLAN, AS
RECORDED UNDER RECORDING NO. 200008215002, RECORDS OF XXXXXX COUNTY WASHINGTON.
TOGETHER WITH THAT PORTION OF LOT 9A OF SAID AMENDED BINDING SITE PLAN,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT 9A;
THENCE SOUTH 89 DEG. 46'54" EAST 638.37 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING, SOUTH 89 DEG. 46'54" EAST, 500.19 FEET;
THENCE SOUTH 07 DEG. 53'58" EAST, 35.41 FEET;
THENCE SOUTH 00 DEG. 13'06" WEST, 115.70 FEET;
THENCE SOUTH 09 DEG. 44'28" WEST, 32.55 FEET;
THENCE SOUTH 00 DEG. 20'49" WEST, 28.74 FEET;
THENCE NORTH 89 DEG. 46'54" WEST, 144.05 FEET;
THENCE SOUTH 00 DEG. 13'06" WEST, 134.00 FEET;
THENCE NORTH 89 DEG. 46'54" WEST, 15.75 FEET;
THENCE SOUTH 00 DEG. 14'59 EAST, 98.46 FEET TO THE NORTHERLY LINE OF LOT 3 OF
SAID BINDING SITE PLAN;
THENCE SOUTH 89 DEG. 45'01" WEST, 275.15 FEET;
THENCE SOUTH 00 DEG. 04'14" EAST, 743.63 FEET;
THENCE NORTH 89 DEG. 45'01" EAST, 323.50 FEET;
THENCE SOUTH 00 DEG. 14'59" EAST, 121.09 FEET TO THE NORTHERLY MARGIN OF
MAIN ST. AS RECORDED UNDER RECORDING NO. 200008215002, OF AMENDED BINDING SITE
PLAN OF VILLA PLAZA;
THENCE NORTH 89 DEG. 56'06" WEST, 100.85 FEET TO AN INTERSECTION WITH A CURVE,
THE RADIUS POINT OF WHICH BEARS SOUTH 00 DEG. 03'54" WEST 989.93 FEET;
THENCE WESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 278.40 FEET THROUGH A
CENTRAL ANGLE OF 16 DEG. 06'48";
THENCE NORTH 00 DEG. 05'46" EAST, 269.25 FEET;
THENCE NORTH 00 DEG. 21'14" WEST, 286.32 FEET;
THENCE NORTH 00 DEG. 08'04" WEST, 409.64 FEET;
THENCE NORTH 30 DEG. 37'47" WEST, 22.26 FEET;
THENCE NORTH 00 DEG. 10'35" WEST, 198.25 FEET;
THENCE NORTH 00 DEG. 13'16" WEST, 123.11 FEET;
THENCE NORTH 02 DEG. 00'16" EAST, 42.63 FEET TO THE TRUE POINT OF BEGINNING;
EXCEPT THE FOLLOWING DESCRIBED PARCEL:
COMMENCING AT THE NORTHWEST CORNER OF LOT 9A;
THENCE SOUTH 89 DEG. 46'54" EAST 638.37 FEET;
THENCE SOUTH 89 DEG. 46'54" EAST 500.19 FEET TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 07 DEG. 53'58" EAST 35.41 FEET;
THENCE SOUTH 00 DEG. 13'06" WEST 115.70 FEET;
X-0
XXXXXX XXXXX 00 XXX. 44'28" WEST 32.55 FEET;
THENCE SOUTH 00 DEG. 20'49" WEST 351.49 FEET;
THENCE SOUTH 07 DEG. 45'17" WEST 24.23 FEET;
THENCE SOUTH 00 DEG. 07'58" EAST 699.57 FEET TO AN INTERSECTION WITH A CURVE,
THE RADIUS POINT OF WHICH BEARS SOUTH 89 DEG. 52'02" WEST 50.00 FEET;
THENCE SOUTH WESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 78.71 FEET THROUGH A
CENTRAL ANGLE OF 90 DEG. 11'52" TO THE NORTH MARGIN OF MAIN ST. AS SHOWN ON SAID
AMENDED BINDING SITE PLAN OF VILLA PLAZA BINDING SITE PLAN;
THENCE ALONG THE NORTH MARGIN OF MAIN ST. SOUTH 89 DEG. 56'06" EAST 160.00 FEET
TO AN INTERSECTION OF A CURVE TO THE RIGHT, THE RADIUS POINT OF WHICH BEARS
NORTH 00 DEG. 03'54" EAST 50.00 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 78.37 FEET THROUGH A
CENTRAL ANGLE OF 89 DEG. 48'08";
THENCE NORTH 00 DEG. 07'58" WEST 700.12 FEET;
THENCE NORTH 07 DEG. 45'35" EAST 24.23 FEET;
THENCE NORTH 00 DEG. 20'49" EAST 350.98 FEET;
THENCE NORTH 00 DEG. 59'31" EAST 28.56 FEET;
THENCE NORTH 00 DEG. 13'06" EAST 154.43 FEET;
THENCE NORTH 89 DEG. 46'54" WEST 60.00 FEET TO THE TRUE POINT OF BEGINNING;
TOGETHER WITH PARCEL 4 OF AMENDED BINDING SITE PLAN OF VILLA PLAZA BINDING SITE
PLAN RECORDED AUGUST 21, 2000 UNDER RECORDING NO. 200008215002, RECORDS OF
XXXXXX COUNTY AUDITOR;
TOGETHER WITH LOT 7 IN BLOCK 1 AND XXXX 0, 0, 0, 00, 00 & 00 XX BLOCK 4 OF M & M
ADDITION, AS PER PLAT RECORDED IN VOLUME 14 OF PLATS, PAGE 69, RECORDS OF XXXXXX
COUNTY AUDITOR, SITUATE IN THE CITY OF LAKEWOOD, COUNTY OF XXXXXX, STATE OF
WASHINGTON, EXCEPT THOSE PORTIONS OF SAID XXXX 0, 0 XXX 00 XXXXXXXX XX XXXXXX
XXXXXX BY DEED RECORDED JULY 10, 1978 UNDER RECORDING NO. 2835329, RECORDS OF
SAID XXXXXX COUNTY;
E-1
EXHIBIT "E-1"
SITE PLAN
[GRAPHIC]
LAKEWOOD TOWNE CENTER
LAKEWOOD, WASHINGTON
E-1
EXHIBIT "F"
NOTICE TO TENANTS
(Seller's Letterhead)
______________, 2004
Tenant: (Fill in Tenant's name and address)
RE: SALE OF "POWER CENTER" AT LAKEWOOD TOWNE CENTER, LAKEWOOD, WASHINGTON
Dear Sir or Madam:
Please be advised that your landlord, MBK Northwest, LLC has this day sold
the above referenced shopping center to _______________ ("New Landlord").
Federal Employer Identification Number ________________. Please send all sums
pursuant to your lease to: [__________, c/o] _________________________________,
____________.
Rent is due and payable on the first day of each month in advance. This is
the only notice you will receive since New Landlord does not send monthly
statements. Please also note that, in the future, all formal notices which you
may desire to give to your New Landlord should be addressed as follows: c/o
_______________________________________________________ (Telephone (__) ______).
Please note that you should contact your insurance broker and notify them
to send to New Landlord, at New Landlord's address set forth above, a revised
certificate of insurance replacing the former owner as the additional named
insured with that of ________________ as the additional named insured.
You are provided with the following information relating to the transfer of
your security deposit from MBK Northwest, LLC to your New Landlord:
Name of Tenant: ___________________________________________________________
Address and Suite Number: _________________________________________________
Amount of your original security deposit: $________________________________
Nature of our claims made against your security deposit: __________________
___________________________________________________________________________
___________________________________________________________________________
Amount of claims made against your security deposit: $_____________________
Balance of security deposit transferred to your New Landlord: $____________
Effective with the sale of the Shopping Center to your New Landlord, your
New Landlord has assumed all obligations of the landlord under your lease
arising after the date hereof. Please direct all future inquiries with respect
to the Property or your lease to your New Landlord at the above address.
Please note the attached list of contact people should you have any
questions.
Very truly yours,
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
ATTACHMENT: Current List of Purchaser's/New Landlord's Contact People
F-1
EXHIBIT "G"
RENT ROLL
(Leases and Temporary Tenancies, if any)
G-1
LAKEWOOD TOWNE CENTER
RENT ROLL-AS OF 4/30/04
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
---------------------------------------------------------------------------------------------------------------------------------
CORE
C1-5830 Bed Bath & Beyond, Inc. Lease 8/29/2001 30,530 06/30/02 01/31/13
Approval of Tenant Signage 11/21/2001
Delivery Date Notice 2/6/2002
Architects Certificate 4/9/2002
Bed Bath & Beyond Signage 5/6/2002
Deliver Date Certification 6/10/2002
Architects Certificate Floor Area of Shop Center 10/29/2002
Rent Commencement Agreement 10/31/2002
Letter re Burlington Coat Factory use 1/22/2003
Warranty Inspection Report 6/3/2003
Notice of Name Change & Taxpayer #, Reqst.COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
C1-5820 Xxxx Stores, Inc. Lease 9/28/2001 30,151 07/20/02 01/31/13
Memorandum of Lease 9/28/2001
Letter re: Leases 10/12/2001
Letter re: Tenant Estoppel 10/31/2001
Letter re: Lease Effectiveness 11/19/2001
Construction Completion Notice 2/6/2002
Delivery Date Notice 6/11/2002
Acknowledgement of Commencement 9/3/2002
Letter re: Co-Tenancy Requirements 9/9/2002
Letter re: Co-Tenancy Requirements (revised) 9/27/2002
Architects Certificate of Leasable Floor Area 10/9/2002
Letter re: Delivery Date Notice 10/11/2002
Letter re: Waiver BCF Use 1/22/2003
Notice of Change Name & Taxpayer#,Reqst COI 3/2/04
Notice of Merger/Lease Assignment 3/25/04
C1-5810 Old Navy, Inc. Lease 9/6/2001 16,172 06/16/02 01/31/08
Architects Certificate 6/8/2002
Punch List Inspection 5/13/2002
Notice of Substantial Completion 5/14/2002
Exhibit "B" 1st Amend. to Lease (Commce Agree) 10/8/2002
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
C1-5730 Michaels Stores, Inc. Agreement Letter 7/18/2001 24,035 08/11/02 02/29/12
Lease 8/10/2001
Memorandum of Lease 8/10/2001
Estoppel Certificate 9/7/2001
Notice of Required Leases 10/22/2001
Construction Completion Notice 2/1/2002
Completion Notice 4/9/2002
Notice of Punch List Inspection 6/3/2002
Notice of Completion Date 6/11/2002
Notice of Punch List Completion 6/25/2002
Architects Certification of Square Footage 6/25/2002
Notice of Leases 9/23/2002
Notice of Chg. Of Names & Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
C1-5831 G.I. Joe's, Inc. Lease 8/20/2001 45,005 06/10/02 11/30/17
First Amendment to Lease 9/5/2001
Notice of Substantial Completion 6/10/2002
First Amend. to Lease (Commencement Agree.) 8/16/2002
Waiver & Consent 2/26/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
Rent Escalation
Monthly Base Rent -------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo.
-------------------------------------------------------------------------------------------------------------------------------
CORE
C1-5830 Bed Bath & Beyond, Inc. Lease $ 31,802 $ 12.50
Approval of Tenant Signage 07/01/07 $ 34,982
Delivery Date Notice
Architects Certificate
Bed Bath & Beyond Signage
Deliver Date Certification
Architects Certificate Floor Area of Shop Center
Rent Commencement Agreement
Letter re Burlington Coat Factory use
Warranty Inspection Report
Notice of Name Change & Taxpayer #,Reqst.COI
Notice of Merger/Lease Assignment
C1-5820 Xxxx Stores, Inc. Lease $ 29,523 $ 11.75
Memorandum of Lease 02/01/08 $ 31,407
Letter re: Leases
Letter re: Tenant Estoppel
Letter re: Lease Effectiveness
Construction Completion Notice
Delivery Date Notice
Acknowledgement of Commencement
Letter re: Co-Tenancy Requirements
Letter re: Co-Tenancy Requirements (revised)
Architects Certificate of Leasable Floor Area
Letter re: Delivery Date Notice
Letter re: Waiver BCF Use
Notice of Change Name & Taxpayer#,Reqst COI
Notice of Merger/Lease Assignment
X0-0000 Xxx Xxxx,Xxx. Lease $ 14,824 $ 11.00
Architects Certificate
Punch List Inspection
Notice of Substantial Completion
Exhibit "B" 1st Amend. to Lease (Commce Agree)
Notice of Chg. Of Names&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5730 Michaels Stores, Inc. Agreement Letter $ 24,035 $ 12.00
Lease 09/01/07 $ 26,438
Memorandum of Lease
Estoppel Certificate
Notice of Required Leases
Construction Completion Notice
Completion Notice
Notice of Punch List Inspection
Notice of Completion Date
Notice of Punch List Completion
Architects Certification of Square Footage
Notice of Leases
Notice of Chg. Of Names & Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5831 G.L. Joe's, Inc. Lease $ 45,005 $ 12.00
First Amendment to Lease 11/07/07 $ 49,506
Notice of Substantial Completion 11/07/12 $ 54,456
First Amend. to Lease (Commencement Agree.)
Waiver & Consent
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Rent Escalation
--------------- Options, Termination
Suite # dba Name/Tenant Name List of Leases PSF/Mo. PSF/Yr. Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
CORE
C1-5830 Bed Bath & Beyond, Inc. Lease Three 5-year options
Approval of Tenant Signage $ 1.15 $ 13.75 @ $15.13, $16.64, & $18.30
Delivery Date Notice psf/year.
Architects Certificate
Bed Bath & Beyond Signage
Deliver Date Certification
Architects Certificate Floor Area of Shop Center
Rent Commencement Agreement
Letter re Burlington Coat Factory use
Warranty Inspection Report
Notice of Name Change & Taxpayer #, Reqst.COI
Notice of Merger/Lease Assignment
C1-5820 Xxxx Stores, Inc. Lease Four 5-year options @
Memorandum of Lease $ 1.04 $ 12.50 $13.50, $14.50, $15.50 &
Letter re: Leases $16.50, psf/year.
Letter re: Tenant Estoppel
Letter re: Lease Effectiveness
Construction Completion Notice
Delivery Date Notice
Acknowledgement of Commencement
Letter re: Co-Tenancy Requirements
Letter re: Co-Tenancy Requirements (revised)
Architects Certificate of Leasable Floor Area
Letter re: Delivery Date Notice
Letter re: Waiver BCF Use
Notice of Change Name & Taxpayer#,Reqst COI
Notice of Merger/Lease Assignment
C1-5810 Old Navy, Inc. Lease Two 5-year options @ lesser
Architects Certificate of 110% of previous rent or
Punch List Inspection cumulative CPI plus 1%.
Notice of Substantial Completion
Exhibit "B" 1st Amend. to Lease (Commce Agree)
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5730 Michaels Stores, Inc. Agreement Letter Three 5-year options:
Lease $ 1.10 $ 13.20 option 1 @ $29,082/mo.,
Memorandum of Lease option 2 @ $31,987/mo. &
Estoppel Certificate option 3 @ $35,191/mo.
Notice of Required Leases
Construction Completion Notice
Completion Notice
Notice of Punch List Inspection
Notice of Completion Date
Notice of Punch List Completion
Architects Certification of Square Footage
Notice of Leases
Notice of Chg. Of Names&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5831 G.I. Joe's, Inc. Lease Four 5-year options: option
First Amendment to Lease $ 1.10 $ 13.20 1 @ $59,694/mo., option
Notice of Substantial Completion $ 1.21 $ 14.52 2 @ $65,895/mo., option
First Amend. to Lease (Commencement Agree.) 3 @ $72,496/mo. & option
Waiver & Consent 4 @ $79,734/mo.
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
To be
completed
prior to
Unpaid Deliquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
CORE
C1-5830 Bed Bath & Beyond, Inc. Lease
Approval of Tenant Signage
Delivery Date Notice
Architects Certificate
Bed Bath & Beyond Signage
Deliver Date Certification
Architects Certificate Floor Area of Shop Center
Rent Commencement Agreement
Letter re Burlington Coat Factory use
Warranty Inspection Report
Notice of Name Change & Taxpayer #, Reqst.COI
Notice of Merger/Lease Assignment
C1-5820 Xxxx Stores, Inc. Lease
Memorandum of Lease
Letter re: Leases
Letter re: Tenant Estoppel
Letter re: Lease Effectiveness
Construction Completion Notice
Delivery Date Notice
Acknowledgement of Commencement
Letter re: Co-Tenancy Requirements
Letter re: Co-Tenancy Requirements (revised)
Architects Certificate of Leasable Floor Area
Letter re: Delivery Date Notice
Letter re: Waiver BCF Use
Notice of Change Name & Taxpayer#,Reqst COI
Notice of Merger/Lease Assignment
X0-0000 Xxx Xxxx, Xxx. Lease
Architects Certificate
Punch List Inspection
Notice of Substantial Completion
Exhibit "B" 1st Amend to Lease (Commce Agree)
Notice of Chg. Of Name&Taxpayer# &reqst
COI
Notice of Merger/lease Assignment
C1-5730 Michaels Stores, Inc. Agreement Letter
Lease
Memorandum of Lease
Estoppel Certificate
Notice of Required Leases
Construction Completion Notice
Completion Notice
Notice of Punch List Inspection
Notice of Completion Date
Notice of Punch List Completion
Architects Certification of Square Footage
Notice of Leases
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5831 G.I. Joe's, Inc. Lease
First Amendment to Lease
Notice of Substantial Completion
First Amend to Lease (Commencement Agree.)
Waiver & Consent
Notice of Chg. Of Name&payer# & reqst COI
Notice of Merger/Lease Assignment
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
---------------------------------------------------------------------------------------------------------------------------------
C1-5811 Goltschalk's, Inc. Lease 2/18/1988 119,256 03/01/92 02/29/12
Assignment & Assumption 11/29/1988
First Amendment to Lease 5/31/1989
Lease Addendum 12/6/1991
First Lease Amendment 3/10/1998
Second Amendment to Lease 4/22/1999
Third Amendment to Lease 3/1/2000
Fourth Amendment to Lease 3/1/2002
Fifth Amendment to Lease 12/6/2002
Sixth Amendment to Lease 11/5/2003
Sixth Amendment to Lease - Revised 11/5/2003
Letter of Agreement 11/18/2003
Sixth Amend. To Lease - Clarification Letter 11/25/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/26/2004
C1-5721 Loews Cineplex Odeon Lease 12/5/1989 48,229 11/22/96 11/30/11
P?tt Theaters, Inc. Letter Regarding Tenants Exclusive 12/5/1989
Memorandum of Lease 12/5/1989
Guaranty 12/6/1989
First Amendment to Lease (Original Lease) 8/24/1995
Lease (Expansion Premises) 8/24/1995
First Lease Amendment 4/1/1996
Landlord Waiver Agreement 12/12/1996
Second Amend. to Lease (Expansion Premises) 5/27/1997
Change of Address (Tenant) 6/19/1996
Notice of Bankruptcy 2/15/2001
Memorandum of Amended Lease 3/7/2002
Amendment to Leases (Lakewood Mall #447) 3/31/2002
Loews Lakewood Mall Deed of Trust (WA#447) 5/2/2002
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
X0-0000 Xxxxxx & Xxxxx Bookstore Lease 9/24/1996 23,104 12/05/96 01/31/12
Xxxxxx & Noble Lease Memorandum 9/24/1996
Booksellers, Inc. Letter re: Agreement of Office Depot Use 1/1/1997
Quitclaim Xxxx of Sale 12/8/1998
Waiver & Consent Agreement 3/28/2002
Ltr re: Waiver Use Restrictions B&N/Office Depot 7/10/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
First Amend. to Amended & Restated Lease Agree. 3/4/2004
Notice of Merger/Lease Assignment 3/25/2004
Subtotal for New Core: 336,482
Rent Escalation
Monthly Base Rent -------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo.
------------------------------------------------------------------------------------------------------------------------------
C1-5811 Goltschalk's, Inc. Lease $ 33,333 $ 3.35
Assignment & Assumption
First Amendment to Lease
Lease Addendum
First Lease Amendment
Second Amendment to Lease
Third Amendment to Lease
Fourth Amendment to Lease
Fifth Amendment to Lease
Sixth Amendment to Lease
Sixth Amendment to Lease - Revised
Letter of Agreement
Sixth Amend. To Lease - Clasification Letter
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5721 Loews Cineplex Odeon Lease $ 43,068 $ 10.72
P?tt Theaters, Inc. Letter Regarding Tenants Exclusive 01/01/05 $ 46,919
Memorandum of Lease 12/01/06 $ 49,459
Guaranty
First Amendment to Lease (Original Lease)
Lease (Expansion Premises)
First Lease Amendment
Landlord Waiver Agreement
Second Amend. to Lease (Expansion Premises)
Change of Address (Tenant)
Notice of Bankruptcy
Memorandum of Amended Lease
Amendment to Leases (Lakewood Mall #447)
Loews Lakewood Mall Deed of Trust (WA#447)
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
X0-0000 Xxxxxx & Noble Bookstore Lease $ 26,473 $ 13.75
Xxxxxx & Xxxxx Lease Memorandum 02/01/07 $ 26,955
Booksellers, Inc. Letter re: Agreement of Office Depot Use
[ILLEGIBLE] Xxxx of Sale
Waiver & Consent Agreement
Ltr re: Waiver Use Restrictions B&N/Office Depot
Notice of Chg. Of Name&Taxpayer# &reqst COI
First Amend. to Amended & Restated Lease Agree.
Notice of Merger/Lease Assignment
Subtotal for New Core: $ 248,064
Rent Escalation
--------------- Options, Termination
Suite # dba Name/Tenant Name List of Leases PSF/Mo. PSF/Yr. Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
C1-5811 Goltschalk's, Inc. Lease Four 5-year options at current
Assignment & Assumption rate provided tenant has
First Amendment to Lease paid an average of $480,000 in
Lease Addendum rent per year in last five
First Lease Amendment years of term.
Second Amendment to Lease Landord has right to terminate
Third Amendment to Lease with 6 months notice + fee
Fourth Amendment to Lease of $300,000 (if terminating
Fifth Amendment to Lease 07/04-06/07), $200,000
Sixth Amendment to Lease (if terminating 07/07-06/08)
Sixth Amendment to Lease - Revised or $100,000) (if terminating
Letter of Agreement 07/06-06/09).
Sixth Amend. To Lease - Clarification Letter
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5721 Loews Cineplex Odeon Lease Four 5-year options; option 1
P?tt Theaters, Inc. Letter Regarding Tenants Exclusive $ 0.97 $ 11.67 @ $28.30; option 2 @ $32.55;
Memorandum of Lease $ 1.03 $ 12.31 option 3 @ $37.43 and option 4
Guaranty @ $43.05, psf/year.
First Amendment to Lease (Original Lease) Landord and Tenant have right
Lease (Expansion Premises) to terminate with 180 days
First Lease Amendment notice.
Landlord Waiver Agreement
Second Amend. to Lease (Expansion Premises) New lease amendment is being
Change of Address (Tenant) negotiated. Landlord will
Notice of Bankruptcy remove former enclosed mall
Memorandum of Amended Lease improvements and construct a
Amendment to Leases (Lakewood Mall #447) new facade. New amendment will
Loews Lakewood Mall Deed of Trust (WA#447) eliminate tenant's
Notice of Chg. Of Name&Taxpayer# &reqst COI termination right for 30
Notice of Merger/Lease Assignment months following the
Construction Completion Date
or April 1, 2007, whichever is
earlier. Rent will stay at the
current $43,068 for 3 years
following the Construction
Completion Date. After the 3
years, rent will increase to
$49,459 until the lease term
expires on November 30, 2011.
Options will not change.
X0-0000 Xxxxxx & Xxxxx Bookstore Lease
Xxxxxx & Noble Lease Memorandum $ 1.17 $ 14.00 Two 5-year options @ $15.00 &
Booksellers, Inc. Letter re: Agreement of Office Depot Use $16.00, psf/year.
[ILLEGIBLE] Xxxx of Sale
Waiver & Consent Agreement
Ltr re: Waiver Use Restrictions B&N/Office Depot
Notice of Chg. Of Name&Taxpayer# &reqst COI
First Amend. to Amended & Restated Lease Agree.
Notice of Merger/Lease Assignment
Subtotal for New Core:
To be
completed
prior to
Unpaid Delinquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
C1-5811 Goltschalk's, Inc. Lease
Assignment & Assumption
First Amendment to Lease
Lease Addendum
First Lease Amendment
Second Amendment to Lease
Third Amendment to Lease
Fourth Amendment to Lease
Fifth Amendment to Lease
Sixth Amendment to Lease
Sixth Amendment to Lease - Revised
Letter of Agreement
Sixth Amend. To Lease - Clasification Letter
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
C1-5721 Loews Cineplex Odeon Lease
P?tt Theaters, Inc. Letter Regarding Tenants Exclusive
Memorandum of Lease
Guaranty
First Amendment to Lease (Original Lease)
Lease (Expansion Premises)
First Lease Amendment
Landlord Waiver Agreement
Second Amend. to Lease (Expansion Premises)
Change of Address (Tenant)
Notice of Bankruptcy
Memorandum of Amended Lease
Amendment to Leases (Lakewood Mall #447)
Loews Lakewood Mall Deed of Trust (WA#447)
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
X0-0000 Xxxxxx & Noble Bookstore Lease
Xxxxxx & Xxxxx Lease Memorandum
Booksellers, Inc. Letter re: Agreement of Office Depot Use
[ILLEGIBLE] Xxxx of Sale
Waiver & Consent Agreement
Ltr re: Waiver Use Restrictions B&N/Office Depot
Notice of Chg. Of Name&Taxpayer# &reqst COI
First Amend. to Amended & Restated Lease Agree.
Notice of Merger/Lease Assignment
Subtotal for New Core: $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
Lakewood Towne Center
Rent Roll- as of 4/30/04
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
----------------------------------------------------------------------------------------------------------------------------------
MAJOR PADS
E1-1 PETsMART, Inc. Lease 4/8/2002 19,069 10/05/03 01/31/19
Memorandum of Lease 4/8/2002
Letter Sheet Metal Coping 3/25/2003
First Amendment to Shopping Center Lease 4/10/2003
Delivery Date/Date of Possession Notice 7/11/2003
Commencement Date Certificate 8/5/2003
Remittance Address Change 12/10/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Second Amendment to Lease 3/9/2004
Notice of Merger/Lease Assignment 3/25/2004
E1-2 Office Depot, Inc. Amended and Restated Lease 4/10/2003 18,000 09/22/03 09/30/13
Memorandum of Amended and Restated Lease 4/10/2003
Delivery Notice 6/11/2003
Ltr re: Waiver Use Restrictions Office Depot/S&N 7/10/2003
Tender of Possession/Delivery Date 8/19/2003
Acknowledgement of Landlord & Tenant 12/30/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
Letter re: Consent From Office Depot 4/26/2004
E1-3 Pier 1 Imports, Inc. Lease 5/6/2003 11,142 09/04/03 02/28/14
Memorandum of Lease 5/2/2003
Sixty Day Notice 7/1/2003
Ten Day Notice 8/20/2003
Letter re: Acceptance of the Premises 9/2/2003
Punch List Completion 9/25/2003
Notice of Lease 11/3/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
E2-1 Burlington Coat Factory Amended and Restatement of Lease Agreement 2/14/2003 70,533 08/18/03 08/31/13
Warehouse of Tacoma, Inc. Memorandum of Lease 2/14/2003
Notice of Tender Date 3/31/2003
Notice of Actual Tender Date 5/29/2003
Tender Date 6/27/2003
Letter re: Commencement Date REVISED 9/9/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
E2-2A Famous Footwear Lease 9/23/2003 8,355 10/30/03 10/31/08
Xxxxx Group Retail, Inc. Notice of Delivery & Substantial Completion 10/1/2003
Term Commencement Agreement 11/17/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
E2-2B Vacant 8,400
E2-2C Vacant 8,400
Subtotal for Major Pads: 143,919
Rent Escalation
Monthly Base Rent ---------------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo. PSF/Mo.
-----------------------------------------------------------------------------------------------------------------------------------
MAJOR PADS
E1-1 PETsMART, Inc. Lease $ 17,496 $ 11.00
Memorandum of Lease 02/01/09 CPI(x) 7.10% max
Letter Sheet Metal Coping 02/01/14 CPI(x) 7.10% max
First Amendment to Shopping Center Lease
Delivery Date/Date of Possession Notice
Commencement Date Certificate
Remittance Address Change
Notice of Chg. Of Name&Taxpayer# &reqst COI
Second Amendment to Lease
Notice of Merger/Lease Assignment
E1-2 Office Depot, Inc. Amended and Restated Lease $ 22,125 $ 14.75
Memorandum of Amended and Restated Lease 10/01/08 $ 24,330 $ 1.35
Delivery Notice
Ltr re: Waiver Xxxx Restrictions Office Depot/S&N
Tender of Possession/Delivery Date
Acknowledgement of Landlord & Tenant
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Letter [ILLEGIBLE] re: Consent From Office Depot
E1-3 Pier 1 Imports, Inc. Lease $ 15,963 $ 17.19
Memorandum of Lease 10/01/04 $ 16,017 $ 1.44
Sixty Day Notice 10/01/08 $ 16,013 $ 1.62
Ten Day Notice
Letter re: Acceptance of the Premises
Punch List Completion
Notice of Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-1 Burlington Coat Factory Amended and Restatement of Lease Agreement $ 32,328 $ 5.50
Warehouse of Tacoma, Inc. Memorandum of Lease 09/01/08 $ 33,797 $ 0.48
Notice of Tender Date
Notice of Actual Tender Date
Tender Date
Letter re: Commencement Date REVISED
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-2A Famous Footwear Lease $ 10,444 $ 15.00
Xxxxx Group Retail, Inc. Notice of Delivery & Substantial Completion
Term Commencement Agreement
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-2B Vacant
E2-2C Vacant
Subtotal for Major Pads: $ 98,358
Rent Escalation
--------------- Options,
Suite # dba Name/Tenant Name List of Leases PSF/Yr. Termination Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
MAJOR PADS
E1-1 PETsMART, Inc. Lease Four 5-year options @ no more than
Memorandum of Lease 110% of previous rent.
Letter Sheet Metal Coping
First Amendment to Shopping Center Lease
Delivery Date/Date of Possession Notice
Commencement Date Certificate
Remittance Address Change
Notice of Chg. Of Name&Taxpayer# &reqst COI
Second Amendment to Lease
Notice of Merger/Lease Assignment
E1-2 Office Depot, Inc. Amended and Restated Lease Four 5-year options; option 1-3 @
Memorandum of Amended and Restated Lease $ 16.22 110% of previous rent; option 4 @
Delivery Notice 112% of previous rent.
Ltr re: Waiver Xxxx Restrictions Office Depot/S&N
Tender of Possession/Delivery Date
Acknowledgement of Landlord & Tenant
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Letter [ILLEGIBLE] re: Consent From Office Depot
E1-3 Pier 1 Imports, Inc. Lease Two 5-year options @ $21.83 &
Memorandum of Lease $ 17.25 $24.56, psf/year. Right to
Sixty Day Notice $ 19.40 terminate if Center less than 80%
Ten Day Notice occupied over 180 days.
Letter re: Acceptance of the Premises
Punch List Completion
Notice of Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-1 Burlington Coat Factory Amended and Restatement of Lease Agreement Three 5-year options @ $6.00,
Warehouse of Tacoma, Inc. Memorandum of Lease $ 5.75 $6.25, and $6.50, psf/year. Right
Notice of Tender Date to terminate if sales do not exceed
Notice of Actual Tender Date $10MM during the 44th through 56th
Tender Date month of original lease term.
Letter re: Commencement Date REVISED
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-2A Famous Footwear Lease Two 5-year options @ $17.25 &
Xxxxx Group Retail, Inc. Notice of Delivery & Substantial Completion $19.64, psf/year.
Term Commencement Agreement
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
X0-0X Xxxxxx Xxxxxx footage is flexible and may
be combined or reduced into
adjacent space.
Seller will master lease this
space.
X0-0X Xxxxxx Xxxxxx footage is flexible and may
be combined or reduced into
adjacent space.
Seller will master lease this
space.
Subtotal for Major Pads:
To be
completed
prior to
Unpaid Delinquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
MAJOR PADS
E1-1 PETsMART, Inc. Lease $ 980.85
Memorandum of Lease
Letter Sheet Metal Coping
First Amendment to Shopping Center Lease
Delivery Date/Date of Possession Notice
Commencement Date Certificate
Remittance Address Change
Notice of Chg. Of Name&Taxpayer# &reqst COI
Second Amendment to Lease
Notice of Merger/Lease Assignment
E1-2 Office Depot, Inc. Amended and Restated Lease
Memorandum of Amended and Restated Lease
Delivery Notice
Ltr re: Waiver Xxxx Restrictions Office Depot/S&N
Tender of Possession/Delivery Date
Acknowledgement of Landlord & Tenant
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Letter [ILLEGIBLE] re: Consent From Office Depot
E1-3 Pier 1 Imports, Inc. Lease
Memorandum of Lease
Sixty Day Notice
Ten Day Notice
Letter re: Acceptance of the Premises
Punch List Completion
Notice of Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-1 Burlington Coat Factory Amended and Restatement of Lease Agreement
Warehouse of Tacoma, Inc. Memorandum of Lease
Notice of Tender Date
Notice of Actual Tender Date
Tender Date
Letter re: Commencement Date REVISED
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-2A Famous Footwear Lease
Xxxxx Group Retail, Inc. Notice of Delivery & Substantial Completion
Term Commencement Agreement
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
E2-2B Vacant
E2-2C Vacant
Subtotal for Major Pads: $ 0.00 $ 0.00 $ 0.00 $ 980.85 $ 0.00
LAKEWOOD TOWNE CENTER
RENT ROLL-AS OF 4/30/04
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
---------------------------------------------------------------------------------------------------------------------------------
SMALL PADS
ES-10107 La Palma Mexican Lease 4/15/2003 5,120 01/25/04 12/31/13
Restaurant Tender of Possession 8/29/2003
La Palma, Inc. First Amendment to Lease 11/4/2003
Change of Address Notice 1/30/2004
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Commencement Agreement 4/1/2004
Notice of Merger/Lease Assignment 3/25/2004
E3-1g Motherhood Maternity Lease not dated 1,750 Not 10 years
Mothers Work, Inc. Commenced
E3-1f EB Games Lease 4/29/2004 1,400 Not 5 years
Electronics Boutique of Commenced
America Inc.
E3-1e Vacant 1,400
E3-1d Vacant 1,400
E3-1c Vacant 1,400
E3-1b Vacant 2,100
E3-1a Vacant 2,450
E3-2 Vacant 5,200
Subtotal for Small Pads: 22,220
Rent Escalation
Monthly Base Rent -------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo.
-------------------------------------------------------------------------------------------------------------------------------
SMALL PADS
ES-10107 La Palma Mexican Lease $ 2,267 $ 10.00
Restaurant Tender of Possession 02/01/05 $ 8,533
La Palma, Inc. First Amendment to Lease 02/01/09 $ 9,387
Change of Address Notice
Notice of Chg. Of Name&Taxpayer# &reqst COI
Commencement Agreement
Notice of Merger/Lease Assignment
E3-1g Motherhood Maternity Lease $ 3,573 $ 24.50
Mothers Work, Inc. 6th year $ 4,109
E3-1f EB Games Lease $ 2,917 $ 25.00
Electronics Boutique of
America Inc.
E3-1e Vacant
E3-1d Vacant
E3-1c Vacant
E3-1b Vacant
E3-1a Vacant
E3-2 Vacant
Subtotal for Small Pads: $ 10,757
Rent Escalation
--------------- Options, Termination
Suite # dba Name/Tenant Name List of Leases PSF/Mo. PSF/Yr. Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
SMALL PADS
ES-10107 La Palma Mexican Lease Tenant has 5-year options @
Restaurant Tender of Possession $ 1.67 $ 20.00 $24.20 & 26.62, psf/year
La Palma, Inc. First Amendment to Lease $ 1.83 $ 22.00
Change of Address Notice
Notice of Chg. Of Name&Taxpayer# &reqst COI
Commencement Agreement
Notice of Merger/Lease Assignment
E3-1g Motherhood Maternity Lease New lease recently
Mothers Work, Inc. $ 2.35 $ 28.18 executed. Tenant
improvements to be
completed by tenant. Tenant
allowance of $30,000 to be
paid by Landlord. Tenant
has termination right if
sales do not exceed
$405,000 during the 3rd
lease year. Tenant has one
5-year option @ $32.40
psf/year.
E3-1f EB Games Lease New lease recently
Electronics Boutique of executed. Tenant
America Inc. improvements to be
completed by tenant. Tenant
allowance of $14,000 to be
paid by Landlord. Tenant
has one 5-year option @
$32.50 psf/year.
E3-1e Vacant Seller will master lease
this space.
E3-1d Vacant Seller will master lease
this space.
E3-1c Vacant Seller will master lease
this space.
E3-1b Vacant Seller will master lease
this space.
E3-1a Vacant Landlord is in final
negotiations with Sprint
Spectrum to lease space at
$27 psf/year.
X0-0 Xxxxxx Xxxxxxxx is in final
negotiations with Panera
Bread to lease space at
$25 psf/year.
Subtotal for Small Pads:
To be
completed
prior to
Unpaid Deliquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
SMALL PADS
ES-10107 La Palma Mexican Lease $10,129.88
Restaurant Tender of Possession
La Palma, Inc. First Amendment to Lease
Change of Address Notice
Notice of Chg. Of Name&Taxpayer# &reqst COI
Commencement Agreement
Notice of Merger/Lease Assignment
E3-1g Motherhood Maternity Lease $ 5,250.00
Mothers Work, Inc.
E3-1f EB Games Lease
Electronics Boutique of
America Inc.
E3-1e Vacant
E3-1d Vacant
E3-1c Vacant
E3-1b Vacant
E3-1a Vacant
E3-2 Vacant
Subtotal for Small Pads: $ 0.00 $ 0.00 $15,379.88 $0.00 $0.00
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
---------------------------------------------------------------------------------------------------------------------------------
BUILDING N2
N2-1 Xxxxx Fargo Financial Lease 5/23/1994 1,750 12/01/99 11/30/09
Washington, Inc. First Amendment to Shopping Center Lease 8/2/1999
Xxxxx Fargo Letter re: Commencement Date 11/17/1999
Financial, Inc. Notice of Merger 1/6/2000
Letter re: Acknowledge Chge legal description 11/12/2002
Notice Address Change 9/17/2003
Option Rent 12/10/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Agreement to Extend Lease 3/11/2004
Notice of Merger/Lease Assignment 3/25/2004
N2-2 24 Hour Fitness, Inc. Lease 5/29/1996 20,219 12/02/96 12/31/16
Guaranty 5/29/1996
Waiver and Consent Agreement 7/5/1996
Substantial Completion of the Premises 12/5/1996
First Lease Agreement 4/30/1997
Consent to Assignment 4/10/1998
Lease Amendment 10/15/1998
Notice of Lease Assignment 6/28/2001
Change of Notice Address 12/14/2001
Letter re: Acknowledge Chge legal description 3/10/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
N2-3-10 The Dollar Store Lease 10/21/2002 15,564 01/15/03 01/31/13
Delivery Date Notice 11/27/2002
Architects Certificate of Square Footage 1/9/2003
Notice of Change of Address 11/12/2003
First Amendment to Lease 12/18/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
N2-11-12 Lakewood Community Lease 1/15/1996 9,450 04/01/03 03/31/13
Dialysis Center First Lease Amendment 3/6/1996
Legal Name Change 10/5/2000
Letter re: Exercising Option 2/6/2001
Second Amendment to Shopping Center Lease 10/21/2002
Change of Address Notification 8/29/2003
Letter re: Commencement Date Confirmation 11/24/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
Subtotal for Building N2: 46,983
Rent Escalation
Monthly Base Rent -------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo.
-------------------------------------------------------------------------------------------------------------------------------
BUILDING N2
N2-1 Xxxxx Fargo Financial Lease $ 1,568 $ 10.75
Washington, Inc. First Amendment to Shopping Center Lease 12/01/04 $ 1,630
Xxxxx Fargo Letter re: Commencement Date
Financial, Inc. Notice of Merger
Letter re: Acknowledge Chge legal description
Notice Address Change
Option Rent
Notice of Chg. Of Name&Taxpayer# &reqst COI
Agreement to Extend Lease
Notice of Merger/Lease Assignment
N2-2 24 Hour Fitness, Inc. Lease $ 23,252 $ 13.80
Guaranty 01/01/07 $ 26,740
Waiver and Consent Agreement 01/01/12 $ 30,750
Substantial Completion of the Premises
First Lease Agreement
Consent to Assignment
Lease Amendment
Notice of Lease Assignment
Change of Notice Address
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-3-10 The Dollar Store Lease $ 17,510 $ 13.50
Delivery Date Notice 02/01/08 $ 19,701
Architects Certificate of Square Footage
Notice of Change of Address
First Amendment to Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-11-12 Lakewood Community Lease $ 11,288 $ 14.33
Dialysis Center First Lease Amendment 04/01/06 $ 11,855
Legal Name Change 04/01/07 $ 12,117
Letter re: Exercising Option 04/01/09 $ 12,753
Second Amendment to Shopping Center Lease 04/01/12 $ 13,726
Change of Address Notification
Letter re: Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N2: $ 53,617
Rent Escalation
--------------- Options, Termination
Suite # dba Name/Tenant Name List of Leases PSF/Mo. PSF/Yr. Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
SMALL PADS
N2-1 Xxxxx Fargo Financial Lease Right to terminate with 120
Washington, Inc. First Amendment to Shopping Center Lease $ 0.93 $ 11.18 days notice + penalty of
Xxxxx Fargo Letter re: Commencement Date unamortized Ti's.
Financial, Inc. Notice of Merger
Letter re: Acknowledge Chge legal description
Notice Address Change
Option Rent
Notice of Chg. Of Name&Taxpayer# &reqst COI
Agreement to Extend Lease
Notice of Merger/Lease Assignment
N2-2 24 Hour Fitness, Inc. Lease Two 5-year option at rate
Guaranty $ 1.32 $ 15.87 TBD.
Waiver and Consent Agreement $ 1.52 $ 18.25
Substantial Completion of the Premises
First Lease Agreement
Consent to Assignment
Lease Amendment
Notice of Lease Assignment
Change of Notice Address
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-3-10 The Dollar Store Lease One 5-year option @ FMV.
Delivery Date Notice $ 1.27 $ 15.19
Architects Certificate of Square Footage
Notice of Change of Address
First Amendment to Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-11-12 Lakewood Community Lease Two 5-year options @ FMV
Dialysis Center First Lease Amendment $ 1.25 $ 15.05 provided no less than
Legal Name Change $ 1.28 $ 15.39 current minimum rent.
Letter re: Exercising Option $ 1.35 $ 16.19
Second Amendment to Shopping Center Lease $ 1.45 $ 17.43
Change of Address Notification
Letter re: Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N2:
To be
completed
prior to
Unpaid Deliquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
BUILDING N2
N2-1 Xxxxx Fargo Financial Lease
Washington, Inc. First Amendment to Shopping Center Lease
Xxxxx Fargo Letter re: Commencement Date
Financial, Inc. Notice of Merger
Letter re: Acknowledge Chge legal description
Notice Address Change
Option Rent
Notice of Chg. Of Name&Taxpayer# &reqst COI
Agreement to Extend Lease
Notice of Merger/Lease Assignment
N2-2 24 Hour Fitness, Inc. Lease
Guaranty
Waiver and Consent Agreement
Substantial Completion of the Premises
First Lease Agreement
Consent to Assignment
Lease Amendment
Notice of Lease Assignment
Change of Notice Address
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-3-10 The Dollar Store Lease
Delivery Date Notice
Architects Certificate of Square Footage
Notice of Change of Address
First Amendment to Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N2-11-12 Lakewood Community Lease $6,300.00
Dialysis Center First Lease Amendment
Legal Name Change
Letter re: Exercising Option
Second Amendment to Shopping Center Lease
Change of Address Notification
Letter re: Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N2: $6,300.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
Leased Lease Lease
Suite # dba Name/Tenant Name List of Leases Date RSF Commences Expires
---------------------------------------------------------------------------------------------------------------------------------
BUILDING N3
N3-1 Old Country Buffet Lease 11/11/1990 9,500 04/25/91 12/31/06
OCB Restaurant Co. Notice of Assignment 4/20/1998
Letter Agreement Safeway Relocation 7/31/2000
Letter Agreement Redevelopment 6/22/2001
Notice of Lease Assignment 10/15/2001
Memorandum of Lease 5/22/2003
First Amendment to Shopping Center Lease 5/22/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
N3-2 Merino's Fine Tailoring Lease 10/1/2001 1,095 10/01/01 09/30/06
Xxxxxx X. Xxx and Xxxx First Amendment to Lease 10/1/2001
Xx Xxx Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
N3-3-5 Catherines Plus Sizes Lease 11/14/1994 4,507 01/16/95 07/31/05
Catherines, Inc. Exhibit "D" Acknowledge Commencement Date No Date
Letter Exercising Option 1/28/2000
Letter of Confirmation: Option to Exercise 2/1/2000
Trade Name Change 3/14/2000
Change of Address Notice 8/15/2000
Letter re: Acknowledge Chge legal description 11/12/2002
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
N3-6-8 The Avenue Lease 9/15/2003 5,682 10/29/03 01/31/16
United Retail Tender of Possession 9/16/2003
Incorporated Architect's Area Certification 11/4/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
N3-9-11 Xxxxxx County Public Lease 5/9/1997 4,200 07/23/97 07/01/06
Transportation Benefit Notice of Leaes Extension 3/18/2002
Area Letter re: Acknowledge Chge legal description 11/12/2002
Commencement Date Confirmation 11/24/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Letter re: Xxxxxx Transit Letter to Extend Lease 3/25/2004
Notice of Merger/Lease Assignment 3/25/2004
Letter re: Xxxxxx Transit Lease 4/2/2004
N3-12 Rent-A-Center, Inc. Lease 3/1/2000 4,275 03/01/00 05/31/05
Letter re: Acknowledge Chge legal description 11/12/2002
Commencement Date Confirmation 11/24/2003
Notice of Chg. Of Name&Taxpayer# &reqst COI 3/2/2004
Notice of Merger/Lease Assignment 3/25/2004
Subtotal for Building N3: 29,259
TOTAL PROPERTY: 578,863 100.0%
Rent Escalation
Monthly Base Rent -------------------
Suite # dba Name/Tenant Name List of Leases Base Rent Psf/Yr. Date Amount/Mo.
-------------------------------------------------------------------------------------------------------------------------------
BUILDING N3
N3-1 Old Country Buffet Lease $ 9,896 $ 12.50
OCB Restaurant Co. Notice of Assignment
Letter Agreement Safeway Relocation
Letter Agreement Redevelopment
Notice of Lease Assignment
Memorandum of Lease
First Amendment to Shopping Center Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-2 Merino's Fine Tailoring Lease $ 1,825 $ 20.00
Xxxxxx X. Xxx and Xxxx First Amendment to Lease 10/01/05 $ 1,916
Xx Xxx Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-3-5 Catherines Plus Sizes Lease $ 5,258 $ 14.00
Catherines, Inc. Exhibit "D" Acknowledge Commencement Date
Letter Exercising Option
Letter of Confirmation: Option to Exercise
Trade Name Change
Change of Address Notice
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Xxxxxx/Xxxxx Xxxxxxxxxx
X0-0-0 Xxx Xxxxxx Lease $ 7,576 $ 16.00
United Retail Tender of Possession Proposed 11/01/09 $ 8,523
Incorporated Architect's Area Certification
Notice of Chg. Of Name&Taxpayer# &reqst COI
N3-9-11 Xxxxxx County Public Lease $ 3,150 $ 9.00
Transportation Benefit Notice of Leaes Extension 08/01/04 $ 3,500
Area Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Letter re: Xxxxxx Transit Letter to Extend Lease
Notice of Merger/Lease Assignment
Letter re: Xxxxxx Transit Lease
N3-12 Rent-A-Center, Inc. Lease $ 3,919 $ 11.00
Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N3: $ 31,624
Total Property: $ 442,420
Rent Escalation
--------------- Options, Termination
Suite # dba Name/Tenant Name List of Leases PSF/Mo. PSF/Yr. Rights, Comments
------------------------------------------------------------------------------------------------------------------------------------
BUILDING N3
N3-1 Old Country Buffet Lease Two 5-year options at
OCB Restaurant Co. Notice of Assignment $10,688/mo. & $11,479/mo.
Letter Agreement Safeway Relocation
Letter Agreement Redevelopment
Notice of Lease Assignment
Memorandum of Lease
First Amendment to Shopping Center Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-2 Merino's Fine Tailoring Lease One 5-year option @ FMV.
Xxxxxx X. Xxx and Xxxx First Amendment to Lease $ 1.75 $ 21.00
Xx Xxx Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-3-5 Catherines Plus Sizes Lease No Options.
Catherines, Inc. Exhibit "D" Acknowledge Commencement Date
Letter Exercising Option
Letter of Confirmation: Option to Exercise
Trade Name Change
Change of Address Notice
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-6-8 The Avenue Lease Three 5-year options @ $20,
United Retail Tender of Possession $ 1.50 $ 18.00 $22 and FMV, psf/year.
Incorporated Architect's Area Certification Right to terminate if
Notice of Chg. Of Name&Taxpayer# &reqst COI annual sales do not exceed
$600,000 during year 6.
Commencement agreement
(including the monthly
rent) has not been
executed.
N3-9-11 Xxxxxx County Public Lease
Transportation Benefit Notice of Leaes Extension $ 0.83 $ 10.00
Area Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Letter re: Xxxxxx Transit Letter to Extend Lease
Notice of Merger/Lease Assignment
Letter re: Xxxxxx Transit Lease
N3-12 Rent-A-Center, Inc. Lease Two 5-year options at FMV.
Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N3:
Total Property:
To be
completed
prior to
Unpaid Deliquent closing
Security Unused Broker's Base Prepaid
Suite # dba Name/Tenant Name List of Leases Deposit Free Rent Fees Rent Rent
------------------------------------------------------------------------------------------------------------------------------------
BUILDING N3
N3-1 Old Country Buffet Lease
OCB Restaurant Co. Notice of Assignment
Letter Agreement Safeway Relocation
Letter Agreement Redevelopment
Notice of Lease Assignment
Memorandum of Lease
First Amendment to Shopping Center Lease
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-2 Merino's Fine Tailoring Lease $3,262.50
Xxxxxx X. Xxx and Xxxx First Amendment to Lease
Xx Xxx Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-3-5 Catherines Plus Sizes Lease
Catherines, Inc. Exhibit "D" Acknowledge Commencement Date
Letter Exercising Option
Letter of Confirmation: Option to Exercise
Trade Name Change
Change of Address Notice
Letter re: Acknowledge Chge legal description
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
N3-6-8 The Avenue Lease
United Retail Tender of Possession
Incorporated Architect's Area Certification
Notice of Chg. Of Name&Taxpayer# &reqst COI
N3-9-11 Xxxxxx County Public Lease
Transportation Benefit Notice of Leaes Extension
Area Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Letter re: Xxxxxx Transit Letter to Extend Lease
Notice of Merger/Lease Assignment
Letter re: Xxxxxx Transit Lease
N3-12 Rent-A-Center, Inc. Lease $ 108.11
Letter re: Acknowledge Chge legal description
Commencement Date Confirmation
Notice of Chg. Of Name&Taxpayer# &reqst COI
Notice of Merger/Lease Assignment
Subtotal for Building N3: $3,262.50 $ 0.00 $ 0.00 $ 108.11 $ 0.00
Total Property: $9,562.50 $ 0.00 $15,379.88 $1,088.96 $ 0.00
EXHIBIT "H"
ESCROW AND LEASING AGREEEMENT
[TO BE NEGOTIATED PRIOR TO END OF INSPECTION PERIOD]
H-1
DRAFT
5/6/04
ESCROW AND LEASING AGREEMENT
THIS ESCROW AND LEASING AGREEMENT is made as of ____________, 2004, by and
among MBK NORTHWEST, LLC, a Washington limited liability company ("Seller"),
______________________, a ____________________ ("Buyer"), and __________________
______________, a ____________ corporation, as escrow holder ("Escrow Holder"),
with reference to the following facts (certain capitalized terms used but not
defined herein have the meanings ascribed to such terms in the Glossary attached
hereto as Exhibit "A"):
A. Seller and Buyer[, AS SUCCESSOR IN INTEREST TO ________________, A
____________________,] are parties to that certain Agreement for Purchase and
Sale of Real Property and Escrow Instructions dated as of ___________, 2004 (the
"Purchase Agreement"), pursuant to which Buyer has acquired concurrently with
execution of this Agreement from Seller that certain real property commonly
known as the "Power Center" at Lakewood Towne Center, located in the City of
Lakewood, Xxxxxx County, Washington (the "Project").
B. The Purchase Price paid by Buyer to Seller under the Purchase
Agreement is based, in part, on all of the GLA of the Project being leased by
tenants; therefore, the "Required Leasing Level," as such term is defined in
Section 2.4 of the Purchase Agreement, has not been satisfied. The Required
Leasing Level has not been met in that approximately _______ square feet of GLA
of the Project constitutes Vacant Leased Space or Unleased Space, as such terms
are defined in Exhibit "A" attached hereto.
C. It will be necessary to incur various leasing related expenses,
including without limitation leasing commissions and costs of constructing
tenant improvements (including design and permit costs) for the Vacant Leased
Space and Unleased Space to qualify as Approved Leases, as such terms are
defined in Exhibit "A." Seller has no obligation hereunder with respect to any
space at the Project other than Vacant Leased Space and Unleased Space.
D. As more fully set forth below, the amount to be deposited in the
Escrow Account is based on eighteen (18) months' base rent and estimated common
operating expenses (including taxes and insurance) for the Unleased Space at the
Project, as well as leasing commissions and tenant improvement costs for
possible Approved Leases for the Unleased Space at the Project.
E. Seller and Buyer also desire to deposit into the Escrow Account: (i)
base rent and estimated common operating expenses (including taxes and
insurance) for varying periods of time depending on the date the applicable
Tenant is obligated to
1
begin paying rent, unpaid leasing commissions and tenant improvement costs for
Vacant Leased Space in the Project (that is, space which has been leased but not
yet occupied by Tenants), (ii) the estimated amount for the "hard" and "soft"
costs of construction of the Theatre Related Improvements, and (iii) the amount
of the base rent concession under the LaPalma Mexican restaurant lease (the
"LaPalma Lease") through the period ending January 31, 2005.
NOW, THEREFORE, in consideration of the foregoing facts, and the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. APPOINTMENT. Seller and Buyer hereby appoint Escrow Holder as escrow
holder for the Escrow Account and for the purposes set forth herein, and Escrow
Holder hereby accepts such appointment in accordance with the terms hereof.
2. ESCROW ACCOUNT.
2.1 GENERAL; INVESTMENT. Seller hereby deposits with Escrow
Holder, the aggregate sum of __________________________________________ Dollars
($_______) as security for Seller's obligations with respect to the Vacant
Leased Space and the Unleased Space in the Project, which Escrow Holder hereby
agrees to hold in the Escrow Account and to disburse and dispose of in
accordance with the terms of this Agreement. All funds in the Escrow Account
will be deposited by Escrow Holder in an interest bearing account which permits
withdrawal on not more than three (3) days' notice. Such funds may also be
invested in money market funds as directed in writing by Buyer. Interest earned
on the funds in the Escrow Account will be distributed as set forth herein.
Escrow Holder shall establish subaccounts of the Escrow Account for each of the
categories set forth in clauses (i) through (vi) of Section 2.2 hereof.
Escrow Holder, upon the written instruction of Buyer, and
approval thereof in writing by Seller, shall cause the funds in the Escrow
Account to be invested in a money market account or certificates of deposit
issued by Bank of America N.A. (the "Bank"), or if no such instruction is given,
in a money market account maintained at the Bank. Escrow Holder is hereby
authorized to cash the certificates of deposit or other financial instruments
held by Escrow Holder pursuant to this Agreement in order to make disbursements
in accordance with the provisions of this Agreement. Escrow Holder is further
authorized to reinvest any portion of the Escrow Account remaining after any
such disbursement, or any portion thereof upon the maturity of any certificate
of deposit in the manner permitted herein. If Escrow Holder does not receive
instructions with respect to reinvestment, Escrow Holder shall deposit any funds
in the Escrow Account in an interest bearing money market account at the Bank.
-2-
2.2 AMOUNT TO BE DEPOSITED IN ESCROW ACCOUNT. The amount to be
deposited in the Escrow Account is the aggregate amount of ___________________
_______________ Dollars ($_______), consisting of:
(i) ________________________________________________ Dollars
($______), which is equal to the sum of (a) eighteen (18) months of base
rent for the Unleased Space ($______) calculated at the base rents set forth in
the Leasing Guidelines set forth on Exhibit "B" attached hereto and incorporated
herein by this reference (the "Leasing Guidelines"); plus (b) base rent for the
Vacant Leased Space at the base rents and for the period of time set forth on
Exhibit "B-1" attached hereto and incorporated herein by this reference; plus
(ii) _____________________________________ Dollars ($______),
which is equal to (a) eighteen (18) months of the pro rata share of CAM Expenses
for the Unleased Space (calculated at the rate of $3.06 psf per annum for space
numbers E4.1, E4.2 and E3.2 and at the rate of $2.56 psf per annum for other
Unleased Space) ($_______); and (b) the pro rata share of CAM Expenses for the
periods of time and at the per square foot rate set forth on Exhibit "B-1" for
the Vacant Leased Space ($_______); plus
(iii) _____________________________________________ Dollars
($______), consisting of (a) $_______ for leasing commissions for the Unleased
Space, and (b) $______ for leasing commissions for the Vacant Leased Space in
the applicable respective amounts set forth on Exhibits "B" and "B-1" attached
hereto; plus
(iv) _____________________________________________ Dollars
($_______) for tenant improvement allowances and miscellaneous leasing costs
which is based on: (a) _____________________________ _____________ Dollars
($________) for Unleased Space, and (b) _______________ Dollars ($________) for
Vacant Leased Space, calculated with respect to clause (a) at the rates set
forth on Schedule 1 to Exhibit "B" attached hereto and with respect to clause
(b) at the rates set forth on Exhibit "B-1" attached hereto.
(v) _________________ Dollars ($______) for the estimated
"hard" and "soft" construction costs of the Theatre Related Improvements.
(vi) _________________ Dollars ($______) for the rent
concession under the LaPalma Lease.
As of the date of this Agreement, the GLA of the Vacant Leased
Space is set forth on Exhibit "B-1" hereto and the GLA of the Unleased Space is
set forth on Schedule 1 to Exhibit "B" attached hereto.
-3-
3. DISBURSEMENTS FROM ESCROW ACCOUNT. Amounts held in the Escrow Account
shall be disbursed as follows:
3.1 DISBURSEMENTS TO BUYER. To Buyer, for the period commencing
___________, 2004 (that is, the "Closing Date" under the Purchase Agreement),
and monthly thereafter until the end of the Subsequent Leasing Period, or such
earlier date as Tenants have commenced payment of full base rent and additional
rent under Approved Leases with respect to all of the Vacant Leased Space and
Unleased Space, an amount equal to: (x) the monthly base rent and CAM Expenses
for the current calendar month allocable for the Vacant Leased Space and
Unleased Space for which rent payments had not commenced as of the first day of
the current calendar month under Approved Leases, LESS (y) the pro rata amount
of the monthly base rent and CAM Expenses under Approved Leases for Vacant
Leased Space and Unleased Space for which the tenant was obligated to be open
for business and for which rent payments had commenced on or after the second
day of the prior calendar month. The parties hereto acknowledge that the first
disbursement to Buyer contemplated under this Section 3.1 may be made at the
Closing and, if such is done, such disbursement shall be made through the
closing statements under the Purchase Agreement rather than under this
Agreement. The deduction in the immediately preceding clause (y) shall not apply
to the first disbursement under this Section 3.1 and the amount of the deduction
under such clause (y) applicable to the month after the last disbursement to
Buyer under this Section 3.1 shall be paid directly by Buyer to Seller. Through
January 31, 2005, Buyer shall also be entitled to a monthly disbursement of the
LaPalma Lease monthly rent concession in the amount of Four Thousand Two Hundred
Sixty-Six Dollars Sixty-Six Cents ($4,266.66) for each full month. The amount to
be disbursed to Buyer shall be set forth in a Buyer's Disbursement Request in
the form of Exhibit "C" attached hereto signed by Seller and Buyer, delivered to
Escrow Holder, and the amount to be disbursed to Buyer shall be calculated based
on the base rents and CAM Expenses referenced in Section 2.2 hereof. Such amount
shall be disbursed to Buyer one (1) time per month within five (5) business days
after Escrow Holder's receipt of Buyer's Disbursement Request which Buyer's
Disbursement Request shall be approved by Seller (as evidenced by Seller signing
thereon) before the disbursement is made.
3.2 PAYMENT OF LEASING RELATED COSTS. Amounts in the Escrow
Account shall be disbursed for tenant improvements and related costs,
miscellaneous leasing costs and leasing commissions under Approved Leases
subject to and in accordance with the provisions of this Section 3.2.
3.2.1 TENANT IMPROVEMENTS. The amounts in the Escrow
Account allocated for tenant improvements and miscellaneous leasing costs (as
set forth in clause (iv) of Section 2.2 hereof), shall be disbursed by Escrow
Holder to pay the costs thereof to contractors and vendors providing labor or
material, or in the event Seller has
-4-
paid such costs itself, to reimburse Seller provided Seller submits to Buyer and
Escrow Holder reasonable evidence of Seller's payment of such amounts, after the
following conditions have been satisfied;
3.2.1.1 The portion of the tenant improvements
for which disbursement is requested must have been constructed substantially in
conformance with the plans and specifications therefor approved by Buyer, which
approval shall not be unreasonably withheld.
3.2.1.2 Interim disbursements for tenant
improvements will be in the amount of ninety percent (90%) of labor and one
hundred percent (100%) of materials furnished to be computed at the maximum
following rates: (i) the applicable rates set forth on Exhibit "B-1" for Vacant
Leased Space, and (ii) the amounts set forth on Schedule 1 to Exhibit "B" for
Unleased Space, in each case less miscellaneous leasing costs theretofore
disbursed from the Escrow Account with respect to the Approved Lease for which
disbursement is sought. The tenant improvement allowances shall be used for the
hard and soft costs of constructing tenant improvements and related coats,
including without limitation design fees, cost of plans and specifications,
permit fees and construction costs, as well as miscellaneous leasing costs,
including without limitation attorneys' fees, but shall exclude leasing
commissions, broker's or finder's fees. Interim disbursements for tenant
Improvements will be made not more often than one (1) time per month.
Notwithstanding anything to the contrary set forth herein, if the Tenant under
an Approved Lease is doing all or any part of the leasehold improvements in its
respective premises and the Approved Lease provides that the landlord is to
provide a tenant improvement allowance to such Tenant, the amount of tenant
improvement allowance deposited hereunder shall be disbursed in accordance with
the terms of the Approved Lease and to the extent Seller has paid such tenant
improvement allowance, such amount shall be payable to Seller provided that
Seller provides Buyer and Escrow Holder with reasonable evidence of Seller's
payment of such tenant improvement allowance. Each request for disbursement
shall be on an Application and Certification for Payment of Tenant Improvements,
containing a certification by Seller that all tenant improvement work for which
payment is requested has been satisfactorily completed and upon payment of the
amounts set forth in the application will be paid in full and shall be
accompanied by lien waivers executed by all the parties who performed work or
supplied materials and who are to be paid by such disbursement. Such Application
and Certification shall be in the form attached hereto as Exhibit "D" and shall
also be approved by Buyer (as evidenced by Buyer signing thereon before the
disbursement is made).
3.2.1.3 As a condition to disbursement of any
interim amounts for tenant improvements, the Title Insurer shall issue an
endorsement to Buyer's title insurance policy insuring that there are no
unbonded mechanics' or materialmen's liens relating to the work for which the
disbursement is sought.
-5-
3.2.1.4 The final disbursement for tenant
improvements for each Tenant shall be the balance of the amount held back for
the respective tenant space as set forth on Exhibits "B" and "B-1" hereto,
subject to Seller delivering to Buyer an estoppel certificate from the Tenant
confirming that all Landlord work required by the Approved Lease has been
completed and a final, unconditional certificate of occupancy (or its
equivalent, such as a "final" Inspection Record issued by the City of Lakewood)
for each space that is the subject of the disbursement and final lien waivers
signed by the general contractor and all subcontractors performing work or
providing materials for improvements for such tenant improvements. Seller shall
not be responsible for any tenant improvement costs for Approved Leases executed
during the Subsequent Leasing Period in excess of amounts deposited hereunder.
3.2.2 MISCELLANEOUS LEASING COSTS. Miscellaneous leasing
costs shall be disbursed to Seller up to one (1) time per month within five (5)
business days after Escrow Holder's receipt of an Application and Certificate
therefor signed by Seller and approved by Buyer, except as otherwise provided in
Section 3.6 hereof, which amounts shall be subject to the maximum amounts
therefor set forth in clause (iv) of Section 2.2.
3.2.3 LEASING COMMISSIONS. There shall be disbursed to the
procuring real estate broker a leasing commission for each Approved Lease of
Vacant Leased Space or Unleased Space upon Escrow Holder's receipt of notice
signed by Seller and approved by Buyer that such commissions have been earned
and are payable pursuant to the terms of the applicable commission agreement
with respect to the applicable Approved Lease. Such notice shall be in the form
of Exhibit "E" attached hereto and shall be executed by Seller and approved by
Buyer except as otherwise provided in Section 3.6 hereof. The amount of leasing
commissions to be disbursed under this Section for Unleased Space and Vacant
Leased Space, respectively, shall be as set forth on Exhibits "B" and "B-1,"
attached hereto.
3.2.4 THEATRE RELATED IMPROVEMENTS. The amounts in the
Escrow Account allocated for Theatre Related Improvements (as set forth in
clause (v) of Section 2.2 hereof), shall be disbursed by Escrow Holder to pay
the costs thereof to contractors and vendors providing labor or material, or in
the event Seller has paid such costs itself, to reimburse Seller provided Seller
submits to Buyer and Escrow Holder reasonable evidence of Seller's payment of
such amounts, after the following conditions have been satisfied:
3.2.4.1 The portion of the Theatre Related
Improvements for which disbursement is requested must have been constructed
substantially in conformance with the plans and specifications therefor approved
by the theatre tenant.
-6-
3.2.4.2 Interim disbursements will be in the
amount of ninety percent (90%) of labor and one hundred percent (100%) of
materials furnished. The amount allocated in clause (v) of Section 2.2 hereof
shall be used for the hard and soft costs of constructing the Theatre Related
Improvements and related costs, including without limitation design fees, cost
of plans and specifications, permit fees and construction costs, but shall
exclude leasing commissions, broker's or finder's fees. Interim disbursements
will be made not more often than one (1) time per month. Each request for
disbursement shall be on an Application and Certification for Payment of Tenant
Improvements, containing a certification by Seller that all work for which
payment is requested has been satisfactorily completed and upon payment of the
amounts set forth in the application will be paid in full and shall be
accompanied by lien waivers executed by all the parties who performed work or
supplied materials and who are to be paid by such disbursement. Such Application
and Certification shall be in the form attached hereto as Exhibit "D" and shall
also be approved by Buyer (as evidenced by Buyer signing thereon before the
disbursement is made).
3.2.4.3 As a condition to disbursement of any
interim amounts for Theatre Related Improvements, the Title Insurer shall issue
an endorsement to Buyer's title insurance policy insuring that there are no
unbonded mechanics' or materialmen's liens relating to the work for which the
disbursement is sought.
3.2.5 The final disbursement for Theatre Related
Improvements shall be the balance of the amount held back under clause (v) of
Section 2.2 hereof, subject to Seller delivering to Buyer: (i) a certificate
from the Projects' architect confirming that all Theatre Related Improvements
have been completed, (ii) written confirmation from the Theatre Tenant that the
Theatre Related Improvements have been completed to the Theatre Tenant's
satisfaction, (iii) a final, unconditional certificate of occupancy (or its
equivalent, such as a "final" Inspection Record issued by the City of Lakewood),
and (iv) final lien waivers signed by the general contractor and all
subcontractors performing work or providing materials for improvements for such
tenant improvements. Seller, at Seller's expense, shall be responsible for any
costs for the Theatre Related Improvements in excess of the amounts deposited
hereunder.
3.3 DISBURSEMENTS TO SELLER AND DEFAULT DEPOSITS.
3.3.1 DISBURSEMENTS TO SELLER. Upon the date the Tenant
under an Approved Lease for space for which funds have been escrowed hereunder
pursuant to clauses (i) or (ii) of Section 2.2, is obligated to be open for
business and has paid the first month's installment of base rent and estimated
additional rent under the Lease, there shall be released to Seller an amount
equal to the aggregate of: (i) the base
-7-
rent, and (ii) CAM Expenses, payable by such Tenant under the applicable
Approved Lease through and including the applicable date set forth on Exhibit
"X-x" with respect to Tenants of Vacant Leased Space and, with respect to
Unleased Space, through and including the end of the Subsequent Leasing Period
(_________, 2005) subject to a maximum disbursement equal to the remaining
amount of base rent and CAM Expenses deposited in the Escrow Account for the
subject premises pursuant to clauses (i) and (ii) of Section 2.2 hereof and
remaining in the Escrow Account after prior disbursement to Buyer with respect
to such space. Each disbursement under this Section 3.3 shall be made to Seller
within five (5) business days after Escrow Holder receives from Seller a
Seller's Disbursement Request in the form of Exhibit "F" attached hereto (and
approved in writing by Buyer) whereby Seller certifies to Buyer and Escrow
Holder that such conditions have been satisfied and Seller is entitled to the
amount requested.
3.3.2 INTEREST. Escrow Holder shall disburse to Seller
automatically on a monthly basis all interest earned on the Escrow Account.
Seller's Taxpayer Identification Number is: 00-0000000.
3.4 FINAL DISBURSEMENTS.
3.4.1 TO SELLER. At the end of the Subsequent Leasing
Period or such earlier date as all of the conditions in this Section 3.4.1 have
been satisfied, if: (i) the Required Leasing Level has been achieved in its
entirety and Tenants of all of the Vacant Leased Space and all of the Unleased
Space are in occupancy and paying rent, (ii) all leasing commissions
contemplated by Section 2.2 (iii) have been paid, and (iii) all tenant
improvements and costs contemplated by Section 2.2 (iv) have been paid, then any
and all funds, including interest earned thereon, remaining in the Escrow
Account shall be released to Seller upon notice from Seller and Buyer that such
conditions have been satisfied. If such conditions have not been satisfied, then
any remaining funds in the Escrow Account at the end of the Subsequent Leasing
Period shall be disbursed as follows:
3.4.1.1 With respect to any Approved Leases for
Vacant Leased Space or Unleased Space which have been executed by Tenants prior
to the end of the Subsequent Leasing Period, but where the Tenant is not yet in
occupancy and paying rent, there shall be retained in the Escrow Account the
amounts allocable to such space pursuant to Section 2.2 hereof. At such time as
the conditions for disbursement of such amounts set forth in Sections 3.2 and
3.3 hereof have been satisfied, such amounts shall be disbursed pursuant to the
provisions of such Sections and, to the extent funds are reserved therefor,
Buyer shall continue to be entitled to monthly disbursements in accordance with
Section 3.1 with respect to such space. If such conditions have not been
satisfied by the end of the Subsequent Leasing Period, then Seller shall not
thereafter be entitled to any further disbursements with respect to
-8-
any Approved Lease for which the conditions have not been satisfied and Seller
shall have no further obligations with respect thereto.
3.4.1.2 Any additional amounts remaining in the
Escrow Account, after the amounts have been reserved as provided in Section
3.4.1.1 hereof, shall be disbursed to Buyer within five (5) business days after
Buyer's written request therefor.
3.5 QUARTERLY REPORTS. Buyer shall provide to Seller and Escrow
Holder detailed written quarterly reports no later than the 20th day after the
end of each calendar quarter for the period ending on the last day of the prior
calendar quarter for disbursements made the prior calendar quarter and the
balance remaining in the Escrow Account by each of the categories listed in
Section 2.2. Escrow Holder shall cooperate with Buyer in connection with such
report.
3.6 TIMING OF DISBURSEMENTS. As set forth above, disbursement
requests are to be signed by Seller and Buyer and facsimile copies may be
delivered to Escrow Holder. Concurrently with delivery of each disbursement
request to Escrow Holder, Seller and Buyer shall deliver to the other a copy of
such disbursement request to the other party. In addition, within one (1)
business day after receipt of a disbursement request signed by Seller or Buyer,
Escrow Holder shall deliver by facsimile to the non-requesting party a copy of
the disbursement request. If Escrow Holder does not receive an objection to the
disbursement signed by Seller or Buyer within five (5) business days after the
date the party to whom the disbursement is to be made delivers to Escrow Holder
and the other party a signed disbursement request, then Escrow Holder is hereby
authorized to make the requested disbursement.
3.7 PARTIAL DISBURSEMENTS. If Seller and Buyer do not agree on the
amount to be disbursed to Seller or Buyer hereunder, Escrow Holder shall
disburse only the undisputed amount as agreed to by Seller and Buyer and the
disputed portion shall continue to be held by Escrow Holder until Escrow Holder
receives joint written disbursement instructions from Seller and Buyer regarding
disbursement of the disputed portion.
4. TERMINATION. This Agreement and the Escrow provided for herein shall
terminate upon the earlier of: (i) the date on which no funds remain in the
Escrow Account; or (ii) twenty-four (24) months after the funds are initially
deposited in the Escrow Account pursuant to Section 2.1 above. Upon such
termination, all funds remaining in the Escrow Account shall be paid to Buyer.
5. EXPENSES. Seller and Buyer shall each pay fifty percent (50%) of all
charges of Escrow Holder and such other costs as may be incurred by Escrow
Holder (including without limitation title insurance endorsements required under
-9-
Section 3.2.1.3 hereof) in connection with the administration of this Agreement
within thirty (30) days after demand therefor from Escrow Holder.
6. DISCLAIMER. Escrow Holder specifically and irrevocably waives and
disclaims any and all right Escrow Holder now has or may have in the future have
to offset any of the amounts due from Buyer or Seller to Escrow Holder against
the funds in the Escrow Account and Escrow Holder further agrees not to pay or
attempt to pay to itself any funds in the Escrow Account to satisfy any claims
Escrow Holder may have against Seller or Buyer.
7. NOTICES. Any notice, demand, request, covenant, approval or other
communication to be given by any party to the other(s) shall be given by
personal service, express mail, Federal Express, DHL or any other similar form
of nationally recognized airborne/overnight delivery service, or mailing in the
United States mail (certified mail, return receipt requested), or by facsimile
(including all disbursement requests), addressed to the parties at their
respective addresses as follows;
If to Buyer:
c/o Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxx Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
With a copy to:
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000 Ext. 2854
Facsimile: (000)000-0000
If to Seller:
c/o MBK Northwest, LLC
0000 X.X. Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
-10-
If to Escrow Holder:
Chicago Title Insurance Company
000 X. Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice shall be deemed to have been given (i) upon delivery, if
personally delivered or delivered by any nationally recognized form of
airborne/overnight delivery service, or (ii) upon receipt or upon the expiration
of three (3) business days, whichever is earlier, if mailed, or (iii) upon
confirmation of receipt if by facsimile. Either party may change the address at
which it desires to receive notice upon giving written notice of such request to
the other parties.
8. LEASING ACTIVITIES. In consideration of Seller depositing the amounts
required hereunder in the Escrow Account, Buyer hereby agrees that during the
Subsequent Leasing Period, Seller shall be responsible for coordinating all
leasing activities at the Project for the Vacant Leased Space and the Unleased
Space. Seller and Buyer each agree to comply with the laws of the State of
Washington in connection with their respective leasing activities. As leasing
coordinator, Seller shall work with Buyer's broker to coordinate negotiations
with prospective tenants and supervise completion of construction of tenant
improvements under the Approved Leases for the Vacant Leased Space and the
Unleased Space. Seller and Buyer acknowledge that the rentals and other terms
set forth in the Leasing Guidelines are general and that the negotiated terms
for each Lease may provide for differing rents and terms than those set forth in
the Leasing Guidelines, with some Leases having greater rents and some Leases
having lower rents. Buyer shall have the right to reasonably approve: (i) all
Leases executed after the date hereof; provided however, Buyer has no right to
disapprove lease terms equal to or more favorable to the landlord than the terms
set forth in the Leasing Guidelines; and (ii) all prospective Tenants under
proposed Leases, based upon all available information, including, without
limitation, the financial strength, credit history, and proposed use by such
prospective Tenant. Buyer agrees to approve or disapprove any Lease submitted to
Buyer for approval within seven (7) business days after Buyer's receipt thereof
and Buyer shall advise Seller of specific reasons for any such disapprovals.
Seller shall submit all letters of intent to lease to Buyer for execution and
Seller shall periodically advise Buyer of the status of lease negotiations
during the Subsequent Leasing Period, including sending drafts of leases to
Buyer. During the Subsequent Leasing Period, Leases shall be prepared and
negotiated through legal counsel recommended by Seller and reasonably approved
by Buyer, which counsel may be Seller's counsel, using the Project's standard
form lease or, subject to Buyer's written approval, a tenant form lease.
Seller's financial responsibility for leasing is limited to
-11-
the amounts deposited hereunder; provided however, Seller shall be responsible
for all coats related to the Theatre Related Improvements, even if such costs
exceed the amount therefor deposited hereunder.
9. MISCELLANEOUS.
9.1 TIME OF ESSENCE. Time is of the essence of this Agreement and
each and every term and provision hereof.
9.2 MODIFICATION. A modification of any provision herein
contained, or any other amendment to this Agreement, shall be effective only if
the modification or amendment is in writing and signed by both Seller and Buyer.
No waiver by any party hereto of any breach or default shall be considered to be
a waiver of any other breach or default. The waiver of any condition shall not
constitute a waiver of any breach or default with respect to any covenant,
representation or warranty.
9.3 SUCCESSORS AND ASSIGNS: SURVIVAL. This Agreement shall inure
to the benefit of, and be binding upon, the parties hereto and their respective
heirs, successors and assigns.
9.4 GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with, the laws of
the State of Washington applicable to agreements made and to be performed wholly
within the State of Washington.
9.5 NON-WAIVER OF RIGHTS. No failure or delay of either party in
the exercise of any right given to such party hereunder shall constitute a
waiver thereof unless the time specified herein for exercise of such right has
expired, nor shall any single or partial exercise of any right preclude other or
further exercise thereof or of any other right.
9.6 DAYS. The term "days," as used herein, shall mean actual days
occurring, including Saturdays, Sundays and holidays. The term "business days"
shall mean days other than Saturdays, Sundays and holidays. If any item must be
accomplished or delivered hereunder on a day that is not a business day, it
shall be deemed to have been timely accomplished or delivered if accomplished or
delivered on the next following business day.
9.7 Assignment. This Escrow Agreement may not be assigned by
Seller or Escrow Holder without the prior written consent of Buyer, which Buyer
may grant or withhold in Buyer's sole discretion. Upon any permitted assignment,
this Agreement will inure to the benefit of and bind the successors and assigns
and the parties hereto.
-12-
9.8 ATTORNEYS' AND OTHER FEES. Should either party institute any
action or proceeding to enforce or interpret this Agreement or any provision
hereof, for damages by reason of any alleged breach of this Agreement or of any
provision hereof, or for a declaration of rights hereunder, the prevailing party
in any such action or proceeding shall be entitled to receive from the other
party all costs and expenses, including reasonable attorneys' and other fees,
incurred by the prevailing party in connection with such action or proceeding.
The term "attorneys' and other fees" shall mean and include attorneys' fees,
accountants' fees, and any and all other similar fees incurred in connection
with the action or proceeding and preparations therefor. The term "action or
proceeding" shall mean and include actions, proceedings, suits, arbitrations,
appeals and other similar proceedings.
9.9 NO THIRD PARTY BENEFICIARIES. Notwithstanding anything to the
contrary herein, nothing in this Agreement shall be deemed to create, either
expressly or by implication, any liens or claims or rights on behalf of
laborers, materialmen, mechanics or other lienholders which could be construed
as creating any third party rights of any kind or nature to the undisbursed
portion of the Escrow Account.
9.10 COUNTERPARTS; AUTHORITY. This Agreement, and each disbursement
request contemplated hereunder, may be executed in counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument. Buyer hereby appoints ____________ as Buyer's agent under this
Agreement, including execution of any modifications to, or consents or approvals
under, this Agreement and disbursement requests. Seller hereby appoints Xxxxx
Xxxxx and Xxxxx Xxxxx, either one of them acting alone, as Seller's agent under
this Agreement, including execution of any modifications to, or consents or
approvals under, this Agreement and disbursement requests.
IN WITNESS WHEREOF, the undersigned have executed this Escrow and Leasing
Agreement as of the date first above written.
"Buyer"
________________________________________,
a ______________________________________
By:
-----------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
(Signatures continued on next page)
-13-
"Seller"
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
-----------------------------------
Xxxxx X. Xxxxx
President
The undersigned, as Escrow Holder, hereby acknowledges receipt of the
foregoing Escrow and Leasing Agreement, agrees to maintain the Escrow Account
referenced therein, and agrees to carry out the provisions of such Agreement and
dispose of all funds in the Escrow Account in accordance with the terms of the
foregoing Agreement
__________, 2004 CHICAGO TITLE INSURANCE COMPANY,
a ____________ corporation
By:
-----------------------------------
Xxxxx Xxxxxx
Its:
-----------------------------------
EXHIBITS:
Exhibit "A" -Glossary
Exhibit "B" -Leasing Guidelines
Exhibit "X-x" -Deposits for Vacant Leased Space
Exhibit "B-2" -Summary of all Lease Deposits
Exhibit "C" -Buyer's Disbursement Request (Section 3.1)
Exhibit "D" -Application and Certification for Payment of Tenant Allowances
Exhibit "E" -Notice to Escrow Holder re: Payment of Leasing Commissions
Exhibit "F" -Seller's Disbursement Request
Exhibit "G" -Site Plan
-14-
EXHIBIT "A"
GLOSSARY
"Anchor Tenants" means any tenant under a lease executed after the date
hereof for ______ square feet of GLA or more.
"Approved Lease" means each Lease executed on or prior to the date hereof
and assigned to Buyer in connection with Buyer's acquisition of the Project, and
each Lease for Vacant Space which is approved by Buyer, as conclusively
evidenced by Buyer's execution thereof.
"CAM Expenses" means common operating costs and expenses, including without
limitation insurance, real estate taxes, certain capital items customarily
payable by shopping center tenants (such as parking lot repaving), and an
administrative fee, payable by Tenants under Leases.
"Escrow Account" means that certain account(s) maintained in the name of
Escrow Holder at Bank of America, N.A.__________ as contemplated by Section 2.1
of this Agreement.
"Other Tenants" means lessees of space within the Project other than Anchor
Tenants.
"GLA" means the gross leasable area of the space being measured as measured
from the outside of exterior walls or the center of any common walls, as the
case may be, without deduction for columns or other structural elements within
the space being measured.
"Lease" means each of the leases for space within the Project.
"Leasing Guidelines" means the leasing parameters set forth on EXHIBIT "B"
attached hereto.
"Purchase Agreement" is defined in Recital A.
"Purchase Price" is defined in the Purchase Agreement.
"Subsequent Leasing Period" means the period commencing on the Closing Date
and ending on the later to occur of the last day of the eighteenth (18th) full
calendar month after the Closing Date.
A-1
"Tenant" means each lessee of a portion of the Project.
"Theatre Related Improvements" means the remodeling of the Xxxx'x Cineplex
Odeon premises front exterior facade and demolition of the adjoining food court
space and construction of an exterior paved parking area in lieu thereof
pursuant to plans and specifications to be prepared by Seller and approved by
the Theatre Tenant.
"Title Insurer" shall mean Translation Title Insurance Company, Lakewood,
Washington.
"Unleased Space" means space within the Project intended to be leased to
Tenants as shown on the Site Plan, but which is not leased or occupied as of the
date hereof.
"Vacant Leased Space" means the aggregate of approximately _____ square
feet of GLA in the Project leased to Tenants but which is not yet occupied as of
the date hereof by such Tenants.
A-2
EXHIBIT "B"
LEASING GUIDELINES
(Unleased Space)
A. ANCHOR TENANTS
The following Leasing guidelines shall apply with respect to Anchor
Tenants:
1. TERM. The maximum term shall be twenty (20) years, excluding option
terms, and the minimum Term shall be ten (10) years for Anchor Tenants leasing
in excess of ten thousand (10,000) square feet of GLA and five (5) years for
other Anchor Tenants, subject in each case to not more than two (2) options to
extend of up to five (5) years each.
2. BASE RENT. See Schedule 1 attached hereto. Such projected rents shall
apply for the first five years of the Lease Term. For any leases having a term
in excess of five (5) years, there shall be an increase in base rent effective
at the beginning of the sixth, eleventh and sixteenth Lease Years, if
applicable, of not less than either the CPI increase or 10% over the base rent
payable at the beginning of the previous five (5) year period.
3. OPERATING EXPENSES. Tenants shall be responsible for their
proportionate share of CAM Expenses.
4. TENANT IMPROVEMENT ALLOWANCES. Tenant improvement allowances and
miscellaneous leasing costs in the amount set forth on Schedule "1" attached
hereto. In the event the cost of tenant improvements and miscellaneous leasing
costs to be paid by the Landlord exceed such amount, then Seller shall pay such
excess costs. Seller may pay such cost by reducing the disbursement to which
Seller would otherwise be entitled under the Escrow and Leasing Agreement.
5. SECURITY DEPOSIT. Equal to one (1) month's installment of base rent
and CAM Expenses. Security Deposits may be waived for "national" or "regional"
tenants (which are tenants having ten (10) or more stores) with credit histories
reasonably approved by Buyer or as otherwise reasonably approved by Buyer.
B. OTHER TENANTS
The following Leasing Guidelines shall apply with respect to Other Tenants:
B-1
1. TERM. The maximum term shall be fifteen (15) years (including all
option terms) and the minimum term shall be five (5) years.
2. PROJECTED BASE RENT. As set forth on Schedule 1 attached hereto. Such
projected rents shall apply for the first five years of the Lease Term. For any
leases having a term in excess of five (5) years, there shall be an increase in
base rent effective at the beginning of the sixth (6th) Lease Year of not less
than 10% over the base rent payable during the first year of the term.
3. OPERATING EXPENSES. Tenants shall be responsible for their
proportionate share of CAM Expenses.
4. TENANT IMPROVEMENT ALLOWANCES AND MISCELLANEOUS LEASING COSTS. Tenant
improvement allowances and miscellaneous leasing costs in the amounts set forth
on Schedule "1" attached hereto. In the event the cost of tenant improvements
and miscellaneous leasing costs to be paid by the Landlord exceed this amount,
then Seller shall pay such excess costs.
5. SECURITY DEPOSIT. Equal to one (1) month's installment of base rent
and CAM Expenses. Security Deposits may be waived for "national" or "regional"
tenants (which are tenants having ten (10) or more stores) with credit histories
reasonably approved by Buyer.
B-2
SCHEDULE 1
to
EXHIBIT "B"
(Unleased Space)
Suite No.
(Prospective Square Annual T.I.$ Misc./ Leasing
Tenant) Footage Base Rent/SF* SF Commissions*
------------ ------- ------------ ------------ -----------
1. E4.1 8,400 $ 18.00 $ 15.00 $ 25,200.00
2. E4.2 8,400 $ 18.00 $ 15.00 $ 25,200.00
3. E3.1(a) 2,450 $ 27.00 $ 15.00 $ 7,350.00
4. E3.1(b) 2,100 $ 22.00 $ 15.00 $ 6,300.00
5. E3.1(c) 1,400 $ 22.00 $ 15.00 $ 4,200.00
6. E3.1(d) 1,400 $ 22.00 $ 15.00 $ 4,200.00
7. E3.1(e) 1,400 $ 22.00 $ 15.00 $ 4,200.00
8. E3.2/Panera Bread 5,200 $ 25.00 $ 125.00 $ 15,600.00
Total GLA of Unleased Space: _______
SCHEDULE 1 TO EXHIBIT "B"
TO ESCROW AND LEASING AGREEMENT
EXHIBIT "B-1"
DEPOSITS FOR VACANT LEASED SPACE
Outside T.I. Unpaid
Suite/ Rent Base Rent CAM* Allowance/ Leasing
Tenant Comm. Date Deposit Deposit Miscellaneous Commission**
------ ---------- --------- ------- ------------- ----------
1. EBGames/ $ 21,000.00 $________
E3.l(f)
2. Motherhood None None None None
Maternity/
E3.1(g)
3.
4.
5.
---------- -------- ------- ------------- -----------
Total:
GLA of Vacant Leased Space: _______
DEPOSITS FOR UNLEASED SPACE
Outside T.I. Unpaid
Suite/ Rent Base Rent CAM* Allowance/ Leasing
Tenant Comm. Date Deposit Deposit Miscellaneous Commission
------ ---------- --------- ------- ------------- ----------
1. E4.1 N/A $___________ $___________ $___________ $___________
2. E4.2 N/A $___________ $___________ $___________ $___________
3. E3.1(a) N/A $___________ $___________ $___________ $___________
4. E3.1(b) N/A $___________ $___________ $___________ $___________
5. E3.1(c) N/A $___________ $___________ $___________ $___________
6. E3.1(d) N/A $___________ $___________ $___________ $___________
7. E3.1(e) N/A $___________ $___________ $___________ $___________
8. Panera Bread/E3.2 $ 195,000.00 $ 23,868.00 $ 650,000.00 $ 15,600.00
------------ ------------ ------------ ------------
Total:
OTHER DEPOSITS
1. Deposits for Theatre Related Improvements: $______.
2. Deposit for LaPalma Lease: $_______
----------
* "Common Area Rent" and "Tax Rent" under the Master Lease.
** Actual amount payable.
B-1
EXHIBIT "B-2"
SUMMARY OF ALL DEPOSITS
Escrow Summary
CAM Tax/
Insurance TI & Leasing
Base Rent Expense Misc. Commissions Total
--------- --------- ----- ----------- -----
Unleased Space $_________ $_________ $_________ $_________ $_________
Vacant Leased $_________ $_________ $_________ $_________ $_________
Space
--------------------------------------------------------------------------
SUBTOTAL $_________ $_________ $_________ $_________ $_________
--------------------------------------------------------------------------
Theatre Related
Improvements......................................................................... $_________
La Palma Lease........................................................................ $_________
TOTAL........................................................................... $_________
B-2
EXHIBIT "C"
BUYER'S DISBURSEMENT REQUEST
[BY TELECOPY (__)_______] ___________, 200_
____________________________
____________________________
____________________________
Attn: ______________________
Re: Agreement dated _/ _/ 04 among
MBK Northwest, LLC ________
Your Escrow Account No. _________
Ladies and Gentlemen;
This Buyer's Disbursement Request is being delivered to you by the
undersigned pursuant to Section 3.1 of the Escrow and Leasing Agreement
referenced above for the month of ________, 200_. Upon your receipt of this
Request, please disburse the following amounts to the undersigned:
1. VACANT LEASED SPACE
________ GLA X $_______ monthly Base Rent = $________
________ GLA X $_______ monthly Base Rent = $________
________ GLA X $_____($_____ annual) CAMS = $________
$_________
2. UNLEASED SPACE
________ GLA X $_______ monthly Base Rent = $________
________ GLA X $_______ monthly Base Rent = $________
$_________
________ GLA X $_____($_____ annual) CAMS = $________
$_________
C-1
3. LA PALMA LEASE (through 1/31/05 only) $ 4,266.66
Subtotal: $_________
Less: Deduction under clause (y) Buyer: $_________
Total: $_________
Such amount is to be disbursed to Buyer by wire-transfer to the account of
Buyer at ______________ Bank, ABA Routing No. __________, Account No. _________,
Attn: _____________.
The undersigned hereby certifies that the undersigned is entitled to
disbursement of the foregoing amounts pursuant to Section 3.1 of the
above-referenced Escrow and Leasing Agreement.
Dated: _____________, 200_ "Buyer"
_________________________________________,
a _______________________________________
By:
----------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
The undersigned approves the foregoing disbursement.
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
------------------------------------
Xxxxx X. Xxxxx
President
cc: MBK Northwest (via telecopy (000)000-0000)
C-2
EXHIBIT "D"
APPLICATION AND CERTIFICATION FOR
PAYMENT OF TENANT IMPROVEMENTS
(or Theatre Related Improvements)
[BY TELECOPY (__)_______]
______________________________
______________________________
______________________________
Attn: ________________________
Re: Agreement dated _/_/04 among
MBK Northwest, ___________
Your Escrow Account No. __________
Ladies and Gentlemen:
[TO BE ON SELLER'S COMPUTER GENERATED DISBURSEMENT REQUEST FORM INCLUDING
APPROPRIATE AIA FORM WITH RESPECT TO ANY GENERAL CONTRACTOR BILLING]
Total Amount to be Disbursed to Seller: $_________
D-1
Such amount is to be disbursed to Seller by wire-transfer to the account of
Seller at ______________ Bank, ABA Routing No. ___________, Account No.________,
Attn: _____________.
The undersigned hereby certifies that the undersigned is entitled to
disbursement of the foregoing amounts pursuant to Section 3.2.1/Section 3.2.4
(CROSS OUT WHICHEVER SECTION IS INAPPLICABLE) of the above-referenced Escrow and
Leasing Agreement.
Dated: _______________, 200_ "Seller"
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
------------------------------------
Xxxxx X. Xxxxx
President
The undersigned approves the foregoing disbursement.
"Buyer"
________________________________________,
_________________________________________
By:
----------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
cc: [NAME/FAX OF BUYER/BUYER'S AGENT]
D-2
EXHIBIT "E"
NOTICE TO ESCROW HOLDER RE:
PAYMENT OF LEASING COMMISSIONS
[BY TELECOPY (__)______]
____________________________
____________________________
____________________________
Attn: ______________________
Re: Agreement dated _/_/04 among
MBK Northwest LLC _________
Your Escrow Account No. _________
Ladies and Gentlemen:
You are hereby directed to disburse to the undersigned the amount of
$________, which constitutes leasing commissions payable in connection with
that certain lease of Vacant Leased Space/Unleased Space [CROSS OUT AS
APPROPRIATE] at Lakewood Towne Center. Such leasing commission is payable in
connection with the Lease with ____________________________________________, as
tenant.
Such amount is to be disbursed to Seller by wire-transfer to the account of
Seller at _____________ Bank, ABA Routing No. __________, Account No. _________,
Attn: ___________.
The undersigned hereby certifies that the undersigned is entitled to
disbursement of the foregoing amounts pursuant to Section 3.2.3 of the
above-referenced Escrow and Leasing Agreement.
Dated: _______________, 200_ "Seller"
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
E-1
The undersigned approves the foregoing disbursement.
"Buyer"
_________________________________________,
a _______________________________________
By:
----------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
cc: [NAME/FAX OF BUYER/BUYER'S AGENT]
E-2
EXHIBIT "F"
SELLER'S DISBURSEMENT REQUEST
[BY TELECOPY (__)_____]
____________________________
____________________________
____________________________
Attn: ______________________
Re: Agreement dated _/_/04 among
MBK Northwest, LLC ________
Your Escrow Account No. _________
Ladies and Gentlemen:
This Seller's Disbursement Request is being delivered to you pursuant to
Section 3.3 of the above-referenced Escrow and Leasing Agreement. The
undersigned hereby certifies that with respect to the leasing of Vacant Leased
Space/ Unleased Space [CROSS OUT AS APPLICABLE] in the amount of _______ square
feet of GLA to _____________________________________ [INSERT NAME OF TENANT],
the undersigned is entitled to disbursement of funds from the Escrow Account in
the aggregate amount of $_________, consisting of base lent at the rate of
$_________ for _________ square feet of GLA and reimbursement of CAM Expenses at
the annual rate of $________ for such GLA, for an aggregate disbursement to the
undersigned of $ ________.
The undersigned further certifies that the Tenant commenced payment of base
rent and responsibility for common operating costs as of _____________, 200_.
Such amount is to be disbursed to Seller by wire-transfer to the account of
Seller at ____________ Bank, ABA Routing No. ________, Account No. ______, Attn:
_____________.
F-1
The undersigned hereby certifies that the undersigned is entitled to
disbursement of the foregoing amounts pursuant to Section 3.3 of the
above-referenced Escrow and Leasing Agreement.
Dated: _____________, 200_ "Seller"
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
The undersigned approves the foregoing disbursement.
"Buyer"
______________________________________,
a______________________________________
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
cc: [NAME/FAX OF BUYER/BUYER'S AGENT]
F-2
EXHIBIT "I"
TENANT ESTOPPEL CERTIFICATE
TO: "Buyer"
Inland Real Estate Acquisitions, Inc. and Inland Western Lakewood, L.L.C.,
and their lenders, successors and assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx-Xxx
and
"Buyer's Lender"
________________________________
________________________________
________________________________
THIS IS TO CERTIFY THAT:
1. The undersigned is the lessee ("Tenant") under that certain lease
dated ______________ ("Original Lease") by and between ________________________
as Lessor ("Landlord") and _________________________ as Tenant, covering those
certain premises commonly known and designated as ____________________________
("Premises") located within Lakewood Towne Center, Lakewood, Washington
("Project"). The Premises consist of approximately ___________ square feet.
2. The Original Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect (except as indicated below; if none,
state "none"). The Original Lease, as so modified, changed, assigned,
supplemented or amended is hereinafter referred to as the "Lease"). The Lease is
not in default and is valid and in full force and effect on the date hereof. The
Lease is the only Lease or agreement between the Tenant and the Landlord
affecting or relating to the Premises or the Project. The Lease represents the
entire agreement between the Landlord and the Tenant with respect to the
Premises. A true, correct and complete copy of the Lease is attached hereto.
Dates of Lease Amendments, if any: ______________________.
3. The Tenant is not entitled to, and has made no agreement(s) with the
Landlord or its agents or employees concerning, free rent, partial rent, rebate
of rent payments, credit or offset or deduction in rent, or any other type of
rental concession, including, without limitation, lease support payments or
lease buy-outs (except as indicated below; if none, state "none"). _____________
________________________________________________________________________________
4. The Tenant has accepted and now occupies the Premises, and is and has
been open for business since ________________. The commencement date of the
Lease term was ___________________. The termination date of the present term of
the Lease, excluding unexercised renewals, is _______________. Tenant has [NO
OPTION TO RENEW OR EXTEND THE TERM OF THE LEASE] _______ options to extend the
term of the Lease of __ years. Tenant has no option to terminate the Lease prior
to the termination date stated above.
5. The Tenant has paid rent for the Premises for the period up to and
including ___________________. The fixed minimum rent and any additional rent
(including the Tenant's share of tax increases and cost of living increases)
payable by the Tenant presently is $____________ per month. No such rent has
been paid more than
I-1
one (1) month in advance of its due date, except as indicated below (if none,
state "none"). The fixed minimum rent will increase on ______ to $__________ per
month. The Tenant's security deposit is $___________. Landlord has no obligation
to segregate the security deposit or to pay interest thereon.
6. (a) The Tenant has paid common area maintenance ("CAM") charges for
the period up to and including __________________. The monthly CAM charge
currently payable by the Tenant is $ ___________.
(b) The Tenant has paid Property Taxes for the period up to and
including ___________. The Tenant currently pays Property Taxes [insert as
appropriate either: two semi-annual installments based on actual Property
Taxes/on a monthly basis based on Landlord's estimate of Property Taxes].
(c) With respect to Tenants that pay percentage rent:
(i) Tenant's annual gross sales volume for the calendar year
ended was $___________, and the percentage rent payable, if any, was $_________.
(ii) As of the date hereof: (x) Tenant's percentage rent rate
is __________%, and (y) Tenant's annual gross sales breakpoint amount is
$____________.
7. No event has occurred and no conditions exist which, with the giving
of notice or the lapse of time or both, will constitute a default under the
Lease. The Tenant has no existing defenses or offsets against the enforcement of
this Lease by the Landlord.
8. The Tenant has received or will receive payment or credit for tenant
improvement work in the total amount of $____________ (or if other than cash,
describe below; if none, state "none"). All conditions under this Lease to be
performed by the Landlord have been satisfied, including any work to be
performed by Landlord in the Premises. The Tenant has received all required
contributions by the Landlord to the Tenant on account of the Tenant's
improvements.
9. The Lease contains, and the Tenant has, no outstanding options or
rights of first refusal to purchase the Premises or any part thereof or all any
part of the real property of which the Premises are a part.
10. No actions, whether voluntary or otherwise, are pending against the
Tenant or any general partner of the Tenant under the bankruptcy laws of the
United States or any state thereof.
11. The Tenant has not sublet the Premises to any sublessee and has not
assigned any of its rights under the Lease, except as indicated below (if none,
state "none").__________________________________________________________________
____________________________________________. No one except the Tenant and its
employees occupies the Premises.
12. The address for notices to be sent the Tenant is as set forth in the
Lease.
13. Tenant acknowledges that Buyer is relying on this certification in
connection with Buyer's acquisition of the Project and that Buyer's Lender is
relying on this Certification in connection with Buyers Lender making a loan to
Buyer in connection with Buyer's acquisition of the Project.
14. 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 Project, or any notice of a prior
sale, transfer,
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assignment, pledge or, except with respect to a deed of trust in favor of San
Diego National Bank, other hypothecation of the Premises or the Lease or of the
rents provided for therein.
15. 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 Project by Tenant.
16. 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.
17. Except as specifically set forth in the Lease, the Lease does not
give the Tenant any operating exclusives for the Property.
18. The undersigned is authorized to execute this Tenant Estoppel
certificate on behalf of the Tenant.
This certification is made with the knowledge that Buyer is about to
acquire title to the Project 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 Project. Tenant acknowledges that Buyer'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 Buyer (including its
lender), their respective successors and assigns shall have the right to rely on
the information contained in this Certificate.
Dated as of _________________, 200_.
"Tenant"
________________________________,
a ______________________________
By:
----------------------------
Its:
----------------------------
I-3
EXHIBIT "I-1"
SELLER ESTOPPEL CERTIFICATE
TO: "Buyer"
Inland Real Estate Acquisitions, Inc. and Inland Western Lakewood, L.L.C,
and their lenders, successors and assigns
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx-Xxx
and
"Buyer's Lender"
_________________________________
_________________________________
_________________________________
THIS IS TO CERTIFY THAT:
1. The undersigned is the landlord ("Landlord") under that certain lease
dated ______________ ("Original Lease") by and between Landlord, as Lessor, and
_______________, as Tenant, covering those certain premises commonly known and
designated as _________________________________ ("Premises") located within
Lakewood Towne Center, Lakewood, Washington ("Project"). The Premises consist of
approximately _______ square feet.
2. The Original Lease has not been modified, changed, altered, assigned,
supplemented or amended in any respect (except as indicated below; if none,
state "none"). The Original Lease, as so modified, changed, assigned,
supplemented or amended is hereinafter referred to as the "Lease"). The Lease is
not in default and is valid and in full force and effect on the date hereof. The
Lease is the only Lease or agreement between the Tenant and the Landlord
affecting or relating to the Premises or the Project. The Lease represents the
entire agreement between the Landlord and the Tenant with respect to the
Premises. ______________________________________________________________________
__________________________________________. A true, correct and complete copy of
the Lease is attached hereto. Date of Lease Amendments, if any: _______________.
3. The Tenant is not entitled to, and has made no agreement(s) with the
Landlord or its agents or employees concerning, free rent, partial rent, rebate
of rent payments, credit or offset or deduction in rent, or any other type of
rental concession, including, without limitation, lease support payments or
lease buy-outs (except as indicated below; if none, state "none"). _____________
_________________________________________________________________________
4. The Tenant has accepted and, to the undersigned's actual knowledge,
now occupies the Premises and is and has been open for business since
________________. The commencement date of the Lease term was _______________.
The termination date of the present term of the Lease, excluding unexercised
renewals, is ______________. Tenant has [NO OPTION TO RENEW OR EXTEND THE TERM
OF THE LEASE] _____ options to extend the term of the Lease of __ years. Tenant
has no option to terminate the Lease prior to the termination date stated above.
I-1
5. The Tenant has paid rent for the Premises for the period up to and
including ___________________. The fixed minimum rent and any additional rent
(including the Tenant's share of tax increases and cost of living increases)
payable by the Tenant presently is $____________ per month. No such rent has
been paid more than one (1) month in advance of its due date, except as
indicated below (if none, state "none"). The fixed minimum rent will increase on
________ to $__________ per month. The Tenant's security deposit is $__________.
Landlord has no obligation to segregate the security deposit or to pay interest
thereon.
6. (a) The Tenant has paid common area maintenance ("CAM") charges for
the period up to and including ________________. The monthly CAM charge
currently payable by the Tenant is $ _________.
(b) The Tenant has paid Property Taxes for the period up to and
including ____________. The Tenant currently pays Property Taxes [inset as
appropriate either: two semi-annual installments based on actual Property Taxes/
on a monthly basis based on Landlord's estimate of Property Taxes].
(c) With respect to Tenants that pay percentage rent:
(i) Tenant's annual gross sales volume for the calendar year
ended was $____________, and the percentage rent payable, if any, was
$_____________.
(ii) As of the date hereof: (x) Tenant's percentage rent rate
is _____________%, and (y) Tenant's annual gross sales breakpoint amount is
$____________.
7. No event has occurred and no conditions exist which, with the giving
of notice or the lapse of time or both, will constitute a default under the
Lease. To the undersigned's actual knowledge, the Tenant has no existing
defenses or offsets against the enforcement of this Lease by the Landlord.
8. The Tenant has received or will receive payment or credit for tenant
improvement work in the total amount of $_________ (or if other than cash,
describe below; if none, state "none"). All conditions under this Lease to be
performed by the Landlord have been satisfied, including any work to be
performed by Landlord in the Premises. The Tenant has received all required
contributions by the Landlord to the Tenant on account of the Tenant's
improvements.
9. The Lease contains, and the Tenant has, no outstanding options or
rights of first refusal to purchase the Premises or any part thereof or all any
part of the real property of which the Premises are a part.
10. To the undersigned's actual knowledge, no actions, whether voluntary
or otherwise, are pending against the Tenant or any general partner of the
Tenant under the bankruptcy laws of the United States or any state thereof.
11. To the undersigned's actual knowledge, the Tenant has not sublet the
Premises to any sublessee and has not assigned any of its rights under the
Lease, except as indicated below (if none, state "none"). To the undersigned's
actual knowledge, no one except the Tenant and its employees occupies the
Premises. ______________________________________________________________________
____________________________________________________.
12. The address for notices to be sent the Tenant is as set forth in the
Lease.
13. Landlord acknowledges that Buyer is relying on this certification in
connection with Buyer's acquisition of the Project and that Buyer's Lender is
relying on this Certification in connection with Buyer's Lender making a loan to
Buyer in connection with Buyer's acquisition of the Project.
I-2
14. 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 Project, or any notice of a prior
sale, transfer, assignment, pledge or, except with respect to a deed of trust in
favor of San Diego National Bank, other hypothecation of the Premises or the
Lease or of the rents provided for therein.
15. 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 Project by Tenant.
16. 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.
17. Except as specifically set forth in the Lease, the Lease does not
give the Tenant any operating exclusives for the Property.
18. The undersigned is authorized to execute this Seller Estoppel
Certificate on behalf of the Landlord.
This certification is made with the knowledge that Buyer is about to
acquire title to the Project 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 Project. Landlord acknowledges that Buyer's interest in
the Lease (as landlord) will be assigned to a lender as security for the loan.
Landlord further acknowledges and agrees that Buyer (including its lender),
their respective successors and assigns shall have the right to rely on the
information contained in this Certificate.
Dated as of_______________, 200_.
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
I-3
EXHIBIT "J"
SPECIAL WARRANTY DEED
RECORDED AT THE REQUEST OF AND
AFTER RECORDING RETURN TO:
_____________________
_____________________
_____________________
_____________________
-------------------------------------------------------------------------------
SPECIAL WARRANTY DEED
Grantor: MBK NORTHWEST, LLC, a Washington limited liability
company
Grantee: _________________________, a _______________________
Legal Description: See Exhibit "A" attached hereto and incorporated herein
by this reference.
Tax Parcel Nos. Parcel
GRANTOR, MBK NORTHWEST, LLC, a Washington limited liability company, for and in
consideration of good and valuable consideration, in hand paid, the receipt and
sufficiency of which are hereby acknowledged, hereby grants, bargains, sells,
conveys and confirms to GRANTEE, _______________________, a ___________________,
that certain real property situated in the County of Xxxxxx, State of
Washington, legally described on EXHIBIT A attached hereto and made a part
hereof.
This Deed and the warranty of title contained herein are made expressly subject
to the items set forth on EXHIBIT B attached hereto and made a part hereof.
Grantor will warrant and forever defend the right and title to the above
described property unto Grantee against the lawful claims of all persons owning,
holding or claiming by, through or under Grantor, but not otherwise.
DATED as of ____________________, 2004.
GRANTOR:
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
----------------------------------
Xxxxx X. Xxxxx
President
EXHIBIT A: Legal Description
EXHIBIT B: Permitted Exceptions
J-1
EXHIBIT A
SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
EXHIBIT "A"
TO SPECIAL WARRANTY DEED
EXHIBIT B TO SPECIAL
WARRANTY DEED
LIENS AND ENCUMBRANCES
EXHIBIT "B"
TO SPECIAL WARRANTY DEED
EXHIBIT "K"
AFFIDAVIT OF NON-FOREIGN PERSON STATUS
This Declaration is made in connection with the sale of the real
property commonly known as Lakewood Towne Center located in the City of
Lakewood, County of Xxxxxx, State of Washington.
Section 1445 of the Internal Revenue Code provides that a transferee
of a United States real property interest must withhold tax if the transferor is
a foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of the property described above, the undersigned
transferor hereby certifies the following:
1. Transferor, MBK NORTHWEST, LLC, a Washington limited liability
company, is not a foreign person for purposes of U.S. income
taxation;
2. Transferor's United States taxpayer identification number is
00-0000000;
3. Transferor's office address is 0000 X.X. Xxxxxxx Xxxx, Xxxxx 000,
Xxxx Xxxxxx, Xxxxxx 00000.
The undersigned transferor understands that this certification may be
disclosed to the Internal Revenue Service by transferee and that any false
statement made here could be punished by fine, imprisonment or both.
Under penalty of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and that I have authority to sign this document on behalf of the
transferor.
DATED: ____________, 2004 "TRANSFEROR"
MBK NORTHWEST, LLC, a Washington
limited liability company
By:
---------------------------
Xxxxx X. Xxxxx
President
Purchaser must retain this certification until the end of the fifth taxable
year following the taxable year in which the transfer takes place, and make it
available to the Internal Revenue Service upon request.
K-1
EXHIBIT "L"
CERTIFICATE OF TRUTH OF REPRESENTATIONS AND WARRANTIES
MBK NORTHWEST, LLC, a Washington limited liability company ("Seller")
hereby declares, certifies, represents and warrants to Seller's knowledge that
all of the representations and warranties of Seller set forth in SECTION 7.1 of
that certain Agreement of Purchase and Sale of Real Property and Escrow
Instructions (the "Purchase Agreement"), dated as of ____________, 2004, by and
between Seller and ________________________, a ____________________ ("Buyer"),
are true and correct as of the date of the execution of this Certificate and
shall be true as of the date of the closing of the purchase and sale transaction
contemplated in the Purchase Agreement [except as follows: _____________________
___________________________________________________________________________
(INSERT EXCEPTIONS, IF ANY)].
This certificate is made and entered into for the benefit of Buyer and
its successors and assigns under the Purchase Agreement and to the "Project" (as
that term is defined in the Purchase Agreement) acquired pursuant thereto.
Executed as of ________________, 2004.
"Seller"
MBK NORTHWEST, LLC, a Washington limited
liability company
By:
---------------------------------
Xxxxx X. Xxxxx
President
L-1
EXHIBIT "L-1"
CERTIFICATE OF TRUTH OF REPRESENTATIONS AND WARRANTIES
______________________, a ____________________ ("Buyer") hereby
declares, certifies, represents and warrants that all of the representations and
warranties of Buyer set forth in SECTION 7.2 of that certain Agreement of
Purchase and Sale of Real Property and Escrow Instructions (the "Purchase
Agreement"), dated as of _____________, 2004, by and between MBK NORTHWEST,
LLC, a Washington limited liability company ("Seller") and Buyer, as such
representations and warranties may be qualified by Buyer's knowledge, are true
and correct as of the date of the execution of this Certificate and shall be
true as of the date of the closing of the purchase and sale transaction
contemplated in the Purchase Agreement.
This certificate is made and entered into for the benefit of Seller
and its successors and assigns under the Purchase Agreement and to the "Project"
(as that term is defined in the Purchase Agreement) acquired pursuant thereto.
Executed as of ____________, 2004.
"Buyer"
_________________, a __________________
___________
By:
--------------------------------
Its:
--------------------------------
L-1
EXHIBIT "M"
RESTRICTIVE USE DECLARATION
[TO BE NEGOTIATED PRIOR TO END OF INSPECTION PERIOD]
M-1
EXHIBIT "N"
THEATRE LEASE AMENDMENT
N-1
SECOND COMBINED LEASE AMENDMENT
(XXXXX THEATRES, INC., DBA CLNEPLEX ODEON)
THIS SECOND COMBINED LEASE AMENDMENT (this "SECOND COMBINED LEASE
AMENDMENT"), made as of April ____, 2004 (the "EXECUTION DATE"), by and between
MBK NORTHWEST LLC, a Washington limited liability company ("LANDLORD"), and
XXXXX THEATRES, INC., a Delaware corporation dba Cineplex Odeon ("TENANT").
R E C I T A L S
A. By Lease dated December 6, 1989, as amended by First Lease Amendment
dated August 24, 1995 (as amended, the "ORIGINAL LEASE"), Lakewood Mall II
Limited Partnership, a Washington limited partnership ("ORIGINAL LANDLORD"),
leased to Tenant, and Tenant leased from Original Landlord certain premises (the
"ORIGINAL PREMISES") located in that certain shopping center commonly known as
Lakewood Towne Center and formerly known as Lakewood Mall (the "SHOPPING
CENTER"), located in Lakewood, Washington.
B. By Lease dated August 24, 1995, as amended by First Lease Amendment
dated April 1, 1996, and by Second Lease Amendment dated May 27, 1997 (as
amended, the "EXPANSION LEASED"), Original Landlord leased to Tenant and Tenant
leased from Original Landlord certain additional premises (the "EXPANSION
PREMISES") in the Shopping Center.
C. The Original Lease and the Expansion Lease were amended by that
certain Amendment to Leases dated March 31, 2002 (the "FIRST COMBINED LEASE
AMENDMENT").
D. The Original Lease and the Expansion Lease, as amended by the First
Combined Lease Amendment, are sometimes hereinafter collectively referred to as
the "Leases" and individually as a "Lease." The Original Premises and the
Expansion Premises are sometimes hereinafter collectively referred to as the
"PREMISES". The current term of each of the Leases (without taking into account
unexercised extension options) is scheduled to expire on November 30, 2011,
subject to earlier termination as expressly provided therein.
E. Landlord is a successor-in-interest to Original Landlord.
F. In connection with Landlord's redevelopment of the Shopping Center,
and in consideration of Landlord constructing an exterior facade to the Premises
and
1
completing the other "Landlord's Refurbishment Work" {defined below), the
parties desire to modify each of the Leases to accommodate Landlord's
Refurbishment Work, to revise the termination rights of Landlord and Tenant
under the First Combined Lease Amendment and to modify Tenant's rental
obligations under the Leases, as set forth herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. EXTERIOR CONSTRUCTION. Landlord hereby agrees, at Landlord's sole cost
and expense, to: (i) remove the remaining portion of the former enclosed mall
improvements located adjacent to the Premises and replace such area with a
parking area and related common area improvements substantially as shown on the
Site Plan attached hereto as EXHIBIT "A" and incorporated herein by this
reference, and (ii) modify and reconstruct the exterior facade of the Premises
(collectively, "LANDLORD'S REFURBISHMENT WORK"). Landlord shall deliver detailed
plans and specifications for Landlord's Refurbishment Work to Tenant within ten
(10) days after the date hereof for Tenant's review and approval (which approval
Tenant agrees shall not be unreasonably withheld or delayed provided that the
same are substantially as shown on the elevations attached hereto as EXHIBIT "B"
and incorporated herein by this reference). Subject to Landlord obtaining
building permits therefor (which Landlord agrees to apply for by May 15, 2004
and thereafter use diligent efforts to obtain), Landlord agrees to commence
Landlord's Refurbishment Work by the later to occur of (a) July 6, 2004, or (b)
forty-five (45) days after an executed, notarized copy of this Second Combined
Lease Amendment has been delivered by Tenant to Landlord and to complete
Landlord's Refurbishment Work within one hundred and forty (140) days
thereafter, subject to "unavoidable delays" within the meaning of such term set
forth in Section 15.10 of the Expansion Lease. All work to be performed by
Landlord under this Section 1 shall be promptly performed in accordance with the
construction practices of first-class shopping standards in the State of
Washington, in a lien-free, good and workmanlike manner and in accordance with
applicable legal requirements. Landlord shall endeavor to minimize the
interference with Tenant's business caused by Landlord's Refurbishment Work.
Subject to Tenant's obtaining permits therefor from the City of Lakewood, Tenant
shall furnish and install new identification signage on the exterior of the
Premises at Tenant's sole cost and expense, which signage shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. Landlord shall promptly notify Tenant if, as and when
Landlord's Refurbishment Work is substantially completed.
2. MINIMUM RENT. Section 2 of the First Combined Lease Amendment sets
forth Tenant's Minimum Rent obligations under the Leases. Currently and through
December 31, 2004, Tenant's Annual Minimum Rent is payable at the rate of Three
Hundred Eight Thousand Two Hundred Forty-Five Dollars Eighty Cents ($308,245.80)
2
per annum under the Original Lease and through November 30, 2006 two Hundred
Eight Thousand Five Hundred Seventy Dollars Eight Cents ($208,570.08) per annum
under the Expansion Lease, for an aggregate Minimum Rent of Five Hundred Sixteen
Thousand Eight Hummed Fifteen Dollars Eighty-Eight Cents ($516,815.88) per annum
("CURRENT ANNUAL MINIMUM RENT"), Notwithstanding the foregoing and anything to
the contrary contained in the Original Lease, the Expansion Lease or the First
Combined Lease Amendment, Landlord and Tenant hereby agree that during the
period from the Execution Date to the date which is three (3) years after
substantial completion of Landlord's Refurbishment Work (the "CONSTRUCTION
COMPLETION DATE"), Tenant shall pay the Current Annual Minimum Rent to Landlord
(instead of the Minimum Rent set forth in the schedule set forth in Section 2 of
the First Combined Lease Amendment) as follows:
(a) MINIMUM RENT UNDER THE ORIGINAL LEASE
Annual
Minimum Rent Monthly Rent
------------ ------------
$ 308,245.80 $ 25,687.15
(b) MINIMUM RENT UNDER THE EXPANSION LEASE
Annual
Minimum Rent Monthly Rent
------------ ------------
$ 208,570.08 $ 17,380.84
Thereafter, Tenant's Annual Minimum Rent shall be as follows through and
including November 30, 2011, or the earlier termination of the Leases:
(c) MINIMUM RENT UNDER THE ORIGINAL LEASE
Annual
Minimum Rent Monthly Rent
------------ ------------
$ 354,455.16 $ 29,537.93
(d) MINIMUM RENT UNDER THE EXPANSION LEASE
Annual
Minimum Rent Monthly Rent
------------ ------------
$ 239,049.48 $ 19,920.79
3
All other amounts payable by Tenant to Landlord under the Leases, or
any amendments thereto, shall continue to be payable in accordance with the
terms thereof. Nothing contained herein is intended to modify amounts payable as
Minimum Rent under the Leases for any duly exercised Option to extend the Term
of the Original Lease or the Expansion Lease, as applicable. Minimum Rent for
each such Extension Term shall be calculated based on the Minimum Rent which
would have been in effect during the Lease Year immediately preceding the
commencement of such Extension Term, without regard to this Second Combined
Lease Amendment.
3. EARLY TERMINATION. Section 5 of the First Combined Lease Amendment is
hereby amended by adding the following provisions at the end of such Section 5:
"Notwithstanding anything to the contrary set forth herein (i) no
Termination Notice delivered by Landlord pursuant to this Section 5 shall
provide for a termination date prior to the date that is one (1) year after
the Construction Completion Date (defined in Section 2 of this Second
Combined Lease Amendment), and (ii) no Termination Notice delivered by
Tenant pursuant to this Section 5 shall provide for a termination date
prior to the date that is the earlier of (x) thirty (30) months after the
Construction Completion Date or (y) April 1, 2007."
4. BINDING EFFECT. This Second Combined Lease Amendment shall be binding
on the parties hereto and their respective successors and assigns.
5. REPRESENTATION REGARDING AUTHORITY. Landlord represents and warrants
to Tenant that San Diego National Bank, a national banking association
("LENDER") is the holder of the only mortgage, ground lease or other lien
superior to the Leases which requires the consent of the holder thereof to the
effectiveness of this Second Combined Lease Amendment. Landlord covenants and
agrees to use Landlord's reasonable efforts to obtain the written consent of
Lender to this Second Combined Lease Amendment and shall promptly notify Tenant
if, as and when the consent of Lender is so obtained (which notice shall be
accompanied by a copy of such consent). If such consent is not obtained within
thirty (30) days after the date hereof, this Second Combined Lease Amendment
shall be null and void and of no further force or effect. Subject to Landlord
obtaining such consent from San Diego National Bank, Landlord hereby represents
and warrants to Tenant that Landlord has the authority to enter into this Second
Combined Lease Amendment and has obtained all consents necessary for the
execution hereof by Landlord and the taking of the actions of Landlord
contemplated hereby. Tenant hereby represents and warrants to Landlord that
Tenant has the authority to enter into this Second Combined Lease Amendment and
has
4
obtained all consents necessary for the execution hereof by Tenant and the
taking of the actions of Tenant contemplated hereby.
6. RATIFICATION; FULL FORCE AND EFFECT. Except as otherwise specifically
set forth herein, all of the other terms and conditions of the Original Lease,
the Expansion Lease and the First Combined Lease Amendment shall remain in full
force and effect.
7. MISCELLANEOUS PROVISIONS. If there is any conflict or inconsistency
between the terms and conditions of this Second Combined Lease Amendment and the
terms and conditions of the Leases, the terms and conditions of this Second
Combined Lease Amendment shall govern and control the rights and obligations of
the parties. This Second Combined Lease Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Washington.
In the event any action is instituted by either party for the purpose of
enforcing or interpreting any provision of this Second Combined Lease Amendment,
the prevailing party in such action shall be entitled to such party's reasonable
attorneys' fees, expert witnesses' fees and related costs. This Second Combined
Lease Amendment may he executed in counterparts, each of which shall constitute
an original and all of which, together, shall constitute a single instrument.
Facsimile signatures to this Second Combined Lease Amendment shall count the
same as originals.
IN WITNESS THEREOF, The parties have executed this Second Combined Lease
Amendment as of the Execution Date.
LANDLORD:
MBK NORTHWEST, LLC,
a Washington limited liability company
By:
----------------------------------
Xxxxx X. Xxxxx,
President
TENANT:
XXXXX THEATRES, INC.,
a Delaware corporation
dba Cineplex Odeon
By:
---------------------------------
Its:
---------------------------------
5
Exhibit "A": Site Plan
Exhibit "B": Exterior Elevations
6
ACKNOWLEDGMENT
STATE OF ________________)
)ss.
COUNTY OF _______________)
On _______________, 2004, before me, the undersigned, a notary public,
personally appeared ________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public
----------------------------------
Name (typed or printed)
[Notarial Seal]
STATE OF ________________)
)ss.
COUNTY OF _______________)
On _______________, 2004, before me, the undersigned, a notary public,
personally appeared ________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his /her /their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person{s) acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public
----------------------------------
Name (typed or printed)
[Notarial Seal]
-7-
STATE OF ________________)
)ss.
COUNTY OF _______________)
On _______________, 2004, before me, the undersigned, a notary public,
personally appeared ________________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Notary Public
----------------------------------
Name (typed or printed)
[Notarial Seal]
-8-
EXHIBIT "O"
MASTER LEASE
[IF REQUIRED BY BUYER, TO BE NEGOTIATED PRIOR TO END OF INSPECTION PERIOD]
O-1
SCHEDULE 7.1.1
UNLEASED SPACE
Suite Proposed Tenant GLA
----- --------------- ---
E4.1/____ 8,400
E4.2/____ 8,400
E3.1(a)/____ 2,450
E3.1(b)/____ 2,100
E3.1(c)/____ 1,400
E3.1(d)/____ 1,400
E3.1(e)/____ 1,400
E3.2/Panera 5,200
Bread
Schedule 7.1.1
SCHEDULE 7.1.2
UNFINISHED/DEFECTIVE TENANT IMPROVEMENTS
[TO BE COMPLETED PRIOR TO END OF INSPECTION PERIOD]
Schedule 7.1.2
SCHEDULE 7.1.8
ENVIRONMENTAL MATTERS
DATE TYPE TITLE AUTHOR
---- ---- ----- ------
1. 1/1/87 Report Preliminary Environmental Audit Earth Consultants, Inc.
2. 1/1/96 Report Phase I Environmental Site Xxx X. Xxxxxx, Inc.
Assessment
3. 11/23/98 Report Phase I Environmental Site Xxxxxxxx Environmental
Assessment Company
4. 12/21/98 Report Phase II Environmental Site Xxxxxxxx Environmental
Assessment Company
5. 5/1/00 Report Phase I Environmental Site Xxxxxxx
Assessment - Lakewood Mall I & II
6. 5/30/00 Report Existing Building Condition Survey Xxxx/Xxxxx Associates
7. 6/9/00 Letter Lakewood Mall Phase II Xxxxxxx
Preliminary Findings
8. 8/25/00 Letter Independent Action Notification Impact Environmental
Regarding Lakewood Mall
9. 9/6/00 Report Quarterly Status Report- Xxxxxxx
XX results from August 2000
sampling event (3rd Qtr, '00)
10. 10/4/00 Report Acknowledgement of Notification Washington State
of Hazardous Waste Activity Department of Ecology
(Verification)
11. 1/3/01 Report Quarterly Status Report - Xxxxxxx
XX results from December 2000
sampling event (4th Qtr, '00)
12. 2/1/01 Report Phase II Environmental Site Xxxxxxx
Assessment - Lakewood Mall I & II
13. 3/6/01 Report GW Quarterly Status Report Xxxxxxx
(1st Qtr, '01)
14. 3/23/01 Letter Independent Action Notification Xxxxxxx Coie
Regarding Lakewood Mall
15. 6/5/01 Report GW Quarterly Status Report Xxxxxxx
(2nd Qtr, '01)
16. 6/25/01 Letter Lakewood Mall. Xxxxxxx Coie
17. 7/2/01 Letter Independent Action Notification Xxxxxxx Coie
Regarding Lakewood Mall
18. 10/3/01 Report GW Quarterly Status Report Xxxxxxx
(3rd Qtr, '0l)
19. 1/1/02 Report GW Monitoring Annual Summary Xxxxxxx
Report (4th Qtr, '01)
Schedule 7.1.8
20. 2/1/02 Report Phase I Environmental Site Xxxxxxx
Assessment - Lakewood
Towne Center
21. 3/14/02 Letter Phase I Environmental Site Xxxxxxx
Assessment - Lakewood
Towns Center
22. 3/15/02 Report GW Quarterly Status Report Xxxxxxx
(1st Qtr, '02)
23. 6/1/02 Report Limited Phase II Site Xxxxxxx
Investigation and GW Quarterly
Status Report - Lakewood Towne
Center (2nd Qtr, '02)
24. 10/1/02 Report GW Quarterly Status Report Xxxxxxx
(3rd Qtr, '02)
25. 11/7/02 Report Study of Phosphorus Sources in URS
GW Entering Lake Xxxxxxxxxx
00. 11/25/02 Letter Phosphorous Testing at VC&T
Lakewood Mall
27. 1/1/03 Report GW Monitoring Annual Summary Xxxxxxx
Report (4th Qtr, '02)
28. 2/6/03 Letter PCE-Contaminated Ground Water MBK
Monitoring (Voluntary Clean-Up
Application)
29. 4/4/03 Report GW Quarterly Status Report Xxxxxxx
(1st Qtr, '03)
30. 7/1/03 Report Limited Phase II Site Investigation - Herrera
Villa One-Hour Cleaners
31. 7/28/03 Proposal Site Assessment Evaluation and Xxxxx & Xxxxxxxx
HRC Injection
32. 8/1/03 Report GW Quarterly Status Report Xxxxxxx
(2nd Qtr, '03)
33. 9/23/03 Report GW Quarterly Status Report Xxxxxxx
(3rd Qtr, '03)
34. 9/30/03 News Steilacoom Lake: Who's cleaning The New Tribune
up?
35. 1/22/04 Report GW Monitoring Update - Xxxxx & Xxxxxxxx
Lakewood Towne Center
(4th Qtr, '03)
36. 4/19/04 Report GW Monitoring Update Xxxxx & Xxxxxxxx
(1st Qtr, '04)
Schedule 7.1.8
SCHEDULE 7.1.9
LITIGATION
1. Xxxxxx X. Xxxxx vs. Xxxxxx County Transportation Benefit Area Authority
TYPE OF ACTION: PERSONAL INJURY (LAKEWOOD TOWNE CENTER)
DATE OF LOSS: OCTOBER 9, 2002
CLAIM VALUE: UNSPECIFIED AMOUNT IN EXCESS OF $20,000
MBK SIR: $0
LEAD DEFENSE COUNSEL: NET YET ASSIGNED
MBK INSURERS: CAN (CONTINENTAL) PRIMARY, XXXX XXXXX, CLAIMS
SPECIALIST; ROYAL INSURANCE EXCESS
10/29/03 XXXXXX X. XXXXX FILED SUIT AGAINST XXXXXX TRANSIT.
01/13/04 COUNSEL FOR XXXXXX TRANSMIT SENT A LETTER TO LAKEWOOD
TOWNE CENTER AND TO MBK'S CORPORATE COUNSEL, XXXX, XXXX &
THEL, DEMANDING THAT MBK DEFEND ITS INTERESTS PURSUANT TO
A MAINTENANCE CONTRACT BETWEEN XXXXXX TRANSIT AND MBK
NORTHWEST, LTD.
01/19/04 DOCUMENTATION WAS RECEIVED BY RISK MANAGEMENT AND
TRANSMITTED TO INSURANCE CARRIERS TO PROTECT MBK INTERESTS.
01/23/04 CAN HAS ACKNOWLEDGED THE CLAIM FOR MBK. AN ANSWER MUST BE
FILED WITH THE COURT BY 02/04/04. CAN DIRECTED XXXXXX
TRANSIT'S COUNSEL TO FILE AN INDEPENDENT ANSWER TO THE CLAIM.
2. On January 6, 2004, Xxxxxx Xxxxxxx allegedly slipped and fell in the
parking lot in front of Dollar Store. Insurance company is currently
contacting claimant. Firemen's Fund Claim number 00404068009, insurance
claims adjuster: Xxxxxx Xxxxxxx (telephone 0-000-000-0000). Adjuster is to
contact insured.
Schedule 7.1.9
SCHEDULE 7.1.18
PERMITS, AUTHORIZATIONS
1. Certificates of Occupancy/Inspection Records
2. Electronic Reader Board Sign Permits/Other Sign Permits
3. Permanent Sign Permits
4. Business License/Other
5. Stormwater Discharge Permit
Schedule 7.1.18
