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Exhibit 10.201
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Second
Amendment") effective as of the 23rd day of June, 2004, amends that certain
Agreement of Purchase and Sale of Purchase dated as of June 4, 2004 and
amended by letter dated June 18, 2004 and an Amendment To Agreement of
Purchase and Sale dated June 21, 2004 (as so amended, the "Agreement") by and
between ORIX Touchstone Seattle Venture ("Seller") and Inland Real Estate
Acquisitions, Inc. ("Purchaser") for the purchase and sale of the property
commonly known as Northgate North Shopping Center, Seattle, Washington (the
"Property").
RECITIALS:
Pursuant to Paragraph 10.01(h) of the Agreement and the Access and Escrow
Agreement to be executed at Closing, Seller is obligated to complete the
Bassett TI Work and indemnify the Purchaser for any loss, cost or expenses that
arises by reason of any default by Seller in Seller's performance of the Bassett
TI Work. Purchaser requires and Seller is willing to confirm the Seller's
indemnity obligations including the failure of BDF Northwest, Inc. ("Bassett")
to commence payment of the rental obligations pursuant to its lease (the
"Bassett Lease") of a portion of the Property due to delays by Seller in
completion of the Bassett TI Work, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, Seller and Purchaser agree as
follows:
1. The parties agree hereby that, subject to the remaining provisions
of this Section 1, Paragraph 10.01(h) and Paragraph 19.01(a)(vi) are
intended and are expressly modified to include (i) any delay in
payment of minimum rent or pass through amounts by Bassett beyond
December 31, 2004 due to any failure by Seller to fully complete the
Bassett TI Work on or before September 1, 2004 and (ii) any failure
of Bassett to commence its lease payments at any time resulting from
Seller's failure to timely complete the Bassett TI Work within the
time schedule required by the Bassett Lease. In the event of a delay
in Bassett's obligation to pay rents beyond December 31, 2004
resulting from Seller's failure to timely complete the Bassett TI
work within the time specified by the Bassett Lease to require rent
to commence on January 1, 2005, Seller will pay, on a monthly basis,
in advance all minimum rent and pass throughs generally required
from Bassett under the Bassett Lease from January 1, 2005 until
Bassett's rent commencement date. In the event of Seller's failure
to timely complete the Bassett TI Work, and to the extent such
failure (i) permits Bassett to abate rent and/or pass throughs for
any period, (ii) obligates the landlord under the Bassett Lease to
pay any damages or (iii) allows Bassett to terminate its lease,
Seller will promptly pay Purchaser any such abated rent or pass
throughs and damages and, if Bassett has terminated the Bassett
Lease as a result of Seller's failure to timely complete the Bassett
TI Work. Seller will be responsible to and will pay to Purchaser all
rent and pass throughs to Purchaser on a monthly basis which
otherwise would have accrued under the Bassett Lease; provided in no
event will Seller's aggregate liability under the Section 1 exceed
(a) the equivalent of eight (8) months of minimum
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rent and pass throughs as set forth in the Bassett Lease and (b) to
the extent Seller receives any additional sums (other than sums
payable by the general contractor for contractor delays to the
extent such funds relate to the period prior to September 1, 2005)
payable by the general contractor responsible to complete the
Bassett TI Work, Seller shall pay such amounts to Purchaser. Nothing
contained herein is intended to limit the indemnity provisions as
are set forth in the Agreement other than as expressly limited
hereby for certain delays in completion by Seller of the Bessett TI
Work.
2. At Closing and as a condition of Closing, Seller and ORIX Real
Estate Equities, Inc., as guarantor of Seller's obligations under
this Amendment, will execute a separate indemnity agreement
confirming all of its obligations under this Amendment.
3. Except as amended hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
4. All capitalized terms not expressly defined herein shall have the
same meaning as set forth in the Agreement.
5. All future references to the Agreement shall include the Agreement
and this Amendment.
6. Facsimile transmissions hereof to the respective offices of the
parties of this Amendment and their respective counsel shall be
deemed originals.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
SELLER:
ORIX TOUCHSTONE SEATTLE VENTURE, an
Illinois general partnership
By: ORIX Seattle II, Inc.,
its Managing General Partner
By: /s/ Jeffrey C. Plack
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Its: Jeffrey C. Plack
------------------------------
Executive Vice President
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, an
Illinois corporation
By: [ILLEGIBLE]
-------------------------------
Its: President
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AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") effective as
of the 21st day of June, 2004, amends that certain Agreement of Purchase and
Sale dated effective as of June 4, 2004 and amended by letter dated June 18,
2004 (as so amended, the "Agreement"), by and between ORIX Touchstone Seattle
Venture ("Seller") and Inland Real Estate Acquisitions, Inc. ("Purchaser") for
the purchase and sale of the property commonly known as Northgate North Shopping
Center, Seattle, Washington (the "Property").
RECITALS:
Purchaser's Inspection Period as provided under the Agreement expires on
June 21, 2004, but Purchaser needs additional time to complete Purchaser's
Investigations with respect to the Bassett Lease. Seller is willing to grant an
extension of the Inspection Period as it relates to the Bassett Lease but solely
upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, Seller and Purchaser agree as
follows:
1. Paragraph 13.02(a) of the Agreement is hereby amended to extend the
Inspection Period, solely with respect to the Bassett Lease, to June
23, 2004. Purchaser hereby acknowledges that it is satisfied with
the results of all of Purchaser's Investigations, other than with
respect to the Bassett Lease, and waives any right to terminate the
Agreement based on Purchaser's Investigations, other than with
respect to the Bassett Lease and the other items listed below. In
addition to the notice requirements set forth in the Agreement,
Purchaser will notify Seller and its counsel, Irwin Gzesh by
facsimile transmission at their respective offices no later than
5:00 P.M., C.S.T., on June 23, 2004, of Purchaser's election to
either terminate the Agreement or waive its right to terminate the
Agreement as a result of (i) its inspections with respect to the
Bsssett Lease, (ii) to verify that the Property contains at least
two hundred seventy-five (275) parking spaces and (iii) to verify
the Target rent, square footage and expiration date.
2. Except as amended hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
3. All capitalized terms not expressly defined herein shall have the
same meaning as set forth in the Agreement.
4. All future references to the Agreement shall include the Agreement
and this Amendment.
5. Facsimile transmissions hereof to the respective offices of the
parties to this Amendment and their respective counsel shall be
deemed originals.
6. This Amendment shall also serve as the joint written direction of
the undersigned to First American Title Insurance Company to amend
the Strict Joint Order
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Escrow dated June 7, 2004 to replace The date "June 21, 2004"
appearing in the first paragraph thereof with the phrase "5:00 P.M.,
C.S.T, on June 23, 2004."
IN WITNESS WHEREOF, The parties hereto have executed this Amendment as of
the day and year first above written.
SELLER:
ORIX TOUCHSTONE SEATTLE VENTURE, an
Illinois general partnership
By: ORIX Seattle II, Inc.,
its Managing General Partner
By: /s/ Jeffrey C. Plack
-------------------------------
Its: Jeffrey C. Plack
------------------------------
Executive Vice President
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
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AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made effective as
of the _____ day of June, 2004, by and between ORIX TOUCHSTONE SEATTLE VENTURE,
an Illinois general partnership ("Seller"), and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation ("Purchaser").
RECITALS:
A. Seller is the fee owner of the Real Property (as hereinafter
defined) commonly referred to as Northgate North Shopping Center, Seattle,
Washington, and the owner of the Personal Property, the Contracts, the Leases
and the Licenses (all as hereinafter defined and collectively referred to herein
as the "Property").
B. Seller desires to sell, and Purchaser desires to purchase, the
Property upon and subject to the terms and conditions hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, agreements, covenants and conditions
herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. As used herein, the following terms shall have the
respective meanings indicated below:
ACCESS AND ESCROW AGREEMENT: As defined in Section 10.0l(h).
AGREEMENT: This Agreement of Purchase and Sale, including the Exhibits
attached hereto which are incorporated herein and made a part hereof by this
reference.
BASSETT LEASE: As defined in Section 10.01(h).
BASSETT TI WORK: The tenant improvement work set forth on EXHIBIT F
attached hereto and made a part hereof.
BDF: BDF Northwest, Inc.
BUILDING: The building situated on the Land containing approximately
302,744 rentable square feet.
CLOSING DATE: June 29, 2004.
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CONTRACTS: All written (i) service, maintenance, operating and repair
contracts and commitments (excluding the Leases and the recorded documents
evidencing the Permitted Title Exceptions) in any way related to the Property or
any part thereof, or pursuant to which goods, services and supplies are
furnished for the operation of the Property, which will survive the Closing Date
hereunder; and (ii) guaranties and warranties, if any, in effect with respect to
the Property or any portion thereof.
DEED: That certain recordable Special Warranty Deed to be delivered by
Seller at closing on the Closing Date conveying to Purchaser, or Purchaser's
designee, fee simple title to the Real Property subject only to the Permitted
Title Exceptions.
DEPOSIT: The sum of Five Hundred Thousand and No/100 Dollars ($500,000.00),
which Purchaser shall, within two (2) business days following the execution of
this Agreement, deposit with Escrowee, as escrowee, in a joint order escrow to
be held as earnest money subject to the terms of this Agreement. Escrowee shall
be directed to invest the Deposit in an interest bearing account at Purchaser's
option with all interest thereon accruing for the benefit of Purchaser.
DOLLARS OR $: Dollars in the lawful currency of the United States of
America.
ENVIRONMENTAL LAWS: As defined in Section 12.01(k).
ESCROWEE: First American Title Insurance Company (National Accounts
Division), Chicago, Illinois.
EXISTING SURVEY: As defined in Section 4.01.
HAZARDOUS MATERIALS: As defined in Section 12.01(k).
LAND: The parcel of land situated at the northeast corner of N.E. Northgate
Way and 3rd Avenue NE in Seattle, Washington which is legally described on
EXHIBIT A, containing approximately 3.9218 acres, on which has been constructed
the retail shopping center commonly known as Northgate North Shopping Center.
LEASES: All leases, ground leases (if any), tenancies and rental
agreements, including amendments thereto, and all lease guarantees executed in
connection therewith, as listed on EXHIBIT B attached hereto.
LEGAL REQUIREMENTS: All laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments and governmental
authorities having jurisdiction over the Property and the operation thereof
including, for purposes hereof, any local Board of Fire Underwriters, but
specifically excluding any Environmental Laws.
LICENSES: All licenses, franchises, certifications, authorizations,
certificates of occupancy, notices, approvals, and permits issued or approved by
any governmental authority and relating to Seller's (and not any tenant's)
operation, ownership and maintenance of the Real
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Property or Personal Property or any part thereof including machinery permits,
business licenses, ingress and egress permits and the like, a list of which is
attached hereto as EXHIBIT C.
PERMITTED TITLE EXCEPTIONS: (i) those exceptions to title to the Property
which will be deemed approved by Purchaser as provided in Section 5.01 hereof;
(ii) the standard printed and general exceptions and exclusions contained in an
Owner's Title Insurance Policy, issued by the Title Insurer, provided that
Seller shall cause the Title Insurer to provide full extended title insurance
coverage over all such general exceptions waiving off on or insuring over all
construction, (iii) the lien of real estate taxes not delinquent on or before
the Closing Date and (iv) the Leases.
PERSONAL PROPERTY: All advertising materials (including leasing brochures,
drawings and other marketing or promotional materials), letterheads, envelopes,
signs, supplies, landscaping equipment and other tangible personal property, if
any, situated in or upon and used in connection with the operation or
maintenance of the Real Property or any part thereof, owned by Seller.
PROPERTY: Collectively, the Real Property, the Personal Property, the
Contracts, the Leases and the Licenses.
PURCHASE PRICE: Forty Eight Million Four Hundred Fifty Five Thousand and
No/100 Dollars ($48,455,000.00); it being agreed however that if Purchaser is
able to reduce the anticipated transfer tax of 1.78% of the Purchase Price
without liability to the Seller, then Purchaser shall receive a dollar for
dollar reduction of the Purchase Price at the closing.
REAL PROPERTY: The Land, all easements and appurtenances thereto belonging
and all right, title and interest of the Seller in and to any streets, alleys,
passages and other rights-of-way included therein or adjacent thereto; to the
extent owned by Seller, all shrubs, trees and plants on the Land; the Building,
together with all related common facilities and all systems, fixtures,
machinery, equipment and conduits to provide fire protection, security, heat,
exhaust, ventilation, air-conditioning, electrical power, light, plumbing,
refrigeration, gas, sewer and water to the Building (but excluding from the
foregoing all trade fixtures and personalty owned by any tenants under the
Leases and personalty owned by entities providing services to the Real
Property).
SURVEY: As defined in Section 4.01.
TI WORK DOCUMENTS: As defined in Section 10.01(h).
TITLE COMMITMENT: A commitment for an ALTA 1992 Form B Owner's Title
Insurance Policy (or the closest equivalent in the state where the Real Property
is located) for the Real Property issued by the Title Insurer insuring the Real
Property for the full amount of the Purchase Price due and payable to Seller at
the Closing, covering title to the Real Property on or after the date hereof,
showing title to the Real Property in Seller, subject only to the Permitted
Title Exceptions and which will be revised at closing to (a) provide for full
extended coverage over all general title exceptions contained in such policies,
(b) waive off on all construction, and (c) include the following special title
endorsements to the extent the Title Insurer is legally permitted to issue the
same: (i) comprehensive 1; (ii) access; (iii) survey; (iv) subdivision; (v)
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environmental lien; (vi) contiguity (if the Land consists of more than one legal
parcel); (vii) utility facility; (viii) tax parcel; (ix) deletion of creditor's
rights exclusion to coverage; and (x) a 3.1 zoning endorsement including parking
and loading docks and insuring all completed improvements as legally conforming
uses.
TITLE INSURER: First American Title Insurance Company.
ARTICLE II
PURCHASE AND SALE
2.01 PURCHASE AND SALE. Subject to the conditions and on the terms
contained in this Agreement:
(a) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell and transfer to Purchaser the Real Property by the Deed.
(b) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell, assign, convey and transfer to Purchaser all of Seller's
right, title and interest in the Contracts, Leases and Licenses. Upon Seller's
assignment of the Contracts, Leases and Licenses, Purchaser agrees to assume (i)
all of Seller's obligations thereunder which shall accrue on and after the
Closing Date (except with respect to any tenant CAM audit of years prior to
2004), and (ii) solely to the extent to which Purchaser receives a proration
credit for the same at the closing, Seller's obligations thereunder which
accrued prior to the Closing Date.
(c) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to sell, convey and transfer to Purchaser, the Personal Property
by good and sufficient bill of sale containing full warranties of title (but
disclaiming any warranties of merchantability, fitness for any particular
purpose or other warranties), free and clear of all liens, claims, encumbrances
and restrictions of every kind, nature and description, except the Permitted
Title Exceptions, to the extent applicable thereto.
(d) Purchaser agrees to purchase and acquire from Seller, and
Seller agrees to quit claim, without representation, warranty or recourse, to
Purchaser any right, if any, to the use of the name "Northgate North Shopping
Center" together with all other intangible rights owned by Seller relating to
the Property.
ARTICLE III
DEPOSIT AND PAYMENT OF PURCHASE PRICE
3.01 DEPOSIT; PAYMENT OF PURCHASE PRICE. Purchaser agrees to pay to
Seller, and Seller agrees to accept payment of the Purchase Price as follows:
(a) The Deposit (and interest thereon, if any) shall be (i)
applied against the Purchase Price at closing, (ii) refunded or returned to
Purchaser in the event that this Agreement is terminated without fault on the
part of Purchaser, or (iii) paid to Seller and retained by Seller
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as liquidated damages in the event of Purchaser's default hereunder as
contemplated by Section 16.01 hereof.
(b) At closing, Purchaser shall pay to Seller the balance of the
Purchase Price (after deduction of the Deposit, including interest thereon,
applied against the Purchase Price as above provided), plus or minus prorations,
as hereinafter provided, in cash by wire transfer of collected federal funds.
ARTICLE IV
SURVEY
4.01 SURVEY. Seller has delivered to Purchaser that certain survey dated
July 25, 2003 and revised on August 20, 2003, prepared by Centre Pointe
Surveying, Inc. (the "Existing Survey"). Purchaser may, at its option and at its
sole cost and expense, obtain an update to the Existing Survey or a new survey
of the Property (such update or new survey, the "Survey"). If the Survey
discloses any matters to which Purchaser objects, Purchaser shall give Seller
written notice of such objection no later than June 21, 2004, and Seller may,
but shall be under no obligation to, have such matters so objected to by
Purchaser removed or insured over by the Title Insurer. If Seller fails to have
the same removed or insured over, Purchaser shall elect in writing to either (i)
terminate this Agreement (in which event the Deposit together with interest
thereon, if any, shall forthwith be returned to Purchaser and all of the parties
hereunder shall cease (except any Surviving Obligations, as hereafter defined)
and this Agreement shall have no further force or effect), or (ii) accept the
Property subject to such encroachments, violations or unpermitted exceptions. If
Purchaser does not so elect, this Agreement shall automatically terminate
without further action of the parties in which event the Deposit together with
interest thereon, if any, shall forthwith be returned to Purchaser and, except
with respect to the Surviving Obligations, all obligations of the parties
hereunder shall, cease and this Agreement shall have no further force or effect.
ARTICLE V
TITLE
5.01 TITLE. Seller shall deliver the Title Commitment together with all
title exception documents reflected therein to Purchaser not later than fifteen
(15) days prior to the Closing Date. If Purchaser objects to any exceptions to
title shown in the Title Commitment (other than Permitted Title Exceptions),
Purchaser shall give Seller written notice of such objection no later than ten
(10) days following its receipt of the Title Commitment. Any exceptions to title
shown on the Title Commitment to which Purchaser does not so object shall be
deemed approved by Purchaser and included in the definition of "Permitted Title
Exceptions" for purposes of this Agreement. Purchaser agrees to accept title at
closing subject to all Permitted Title Exceptions. If the date down to the Title
Commitment at closing discloses exceptions to title other than Permitted Title
Exceptions and liens securing indebtedness which may be released for an amount
less than the Purchase Price and which Seller shall have the right to pay and
discharge on or before the Closing Date, Seller may, but shall be under no
obligation to, have such exceptions removed from the Title Commitment or to have
the Title Insurer
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commit to insure for the full amount of said policy against loss or damage that
may be occasioned by such unpermitted exceptions. If Seller fails to have such
exceptions removed or insured over, Purchaser, at its sole right and remedy on
account thereof, shall elect to either (i) terminate this Agreement (in which
event the Deposit together with interest thereon, if any, shall forthwith be
returned to Purchaser and, except with respect to the Surviving Obligations, all
obligations of the parties hereunder shall cease and this Agreement shall have
no further force or effect), or (ii) accept title subject to such unpermitted
exceptions with the further right to deduct from the Purchase Price amounts
secured by or constituting unpermitted liens or encumbrances of a definite or
ascertainable amount (provided such unpermitted liens or encumbrances, exclusive
of voluntary encumbrances such as mortgages, do not exceed in the aggregate, an
amount of Five Hundred Thousand and no/100 Dollars ($500,000.00). If Purchaser
does not so elect, this Agreement shall automatically terminate without written
further action of the parties (in which event the Deposit together with interest
thereon, if any, shall forthwith be returned to Purchaser and, except with
respect to the Surviving Obligations, all obligations of the parties hereunder
shall cease and this Agreement shall have no further force or effect). A
concurrent condition to the obligation of Purchaser to close upon the
transaction contemplated by this Agreement is that on the Closing Date, Seller
shall, at Seller's sole cost and expense, cause the Title Insurer to issue an
owner's title insurance policy in the amount of the Purchase Price, pursuant to
and in accordance with the Title Commitment, insuring fee simple title in
Purchaser as of the Closing Date, subject only to the Permitted Title Exceptions
and such other title exceptions as Purchaser may approve.
ARTICLE VI
POSSESSION, PRORATIONS AND CLOSING COSTS
6.01 POSSESSION. Possession of the Property shall be delivered to
Purchaser on the Closing Date, subject to the rights of tenants in possession
under the Leases.
6.02 PRORATIONS.
(a) TAXES. General real estate taxes and personal property ad
valorem taxes (other than those directly payable to the appropriate governmental
authorities by tenants under the Leases) with respect to the Real Property and
Personal Property (collectively, "Taxes") due and payable at or prior to the
Closing shall be paid by Seller but Seller shall receive a proration credit at
closing to the extent any such taxes were paid in advance and relate to periods
from and after the closing for which Purchaser will be entitled to a
post-closing pass-through reimbursement from tenants under the Leases. Taxes
which have accrued but are not yet due and payable as of the Closing shall be
prorated between Seller and Purchaser on the basis of the actual amount thereof
if the same is determinable and otherwise on the basis of 110% of the most
recently ascertainable Taxes; and in the proration Seller shall credit Purchaser
with an amount equal to (i) those Taxes that have accrued during the 2004 tax
year which are attributable to such portions of the Real Property for the period
of time the same was not occupied by tenants under the Leases plus (ii) all
estimated payments then due and payable as of the Closing Date from tenants
under the Leases for Taxes accruing during the 2004 tax year, plus (iii) those
Taxes attributable to such portions of the Real Property for the period of time
the same was occupied by tenants under the Leases but such tenants were not
obligated to pay Taxes for such period
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pursuant to the terms of their respective Lease. All prorations for Taxes for
which final tax bills are not available as of closing shall be reprorated upon
issuance of the final 2004 real estate tax bills.
(b) FIXED, MINIMUM AND BASE RENTS. Subject to Section 6.02(1),
Seller shall be entitled to receive all fixed, minimum and base rents which are
due or past due or not yet due but accrued under the terms of the Leases,
prorated to the Closing Date, upon collection of the same from tenants. Subject
to Section 6.02(1), Purchaser shall be entitled to receive all fixed, minimum
and base rents which relate to periods commencing on or after the Closing Date,
upon collection of the same from tenants.
(c) OVERAGE RENTS. Overage rents to be prorated hereunder shall
include, but not be limited to, percentage rents, consumer price index
escalation payments and other similar rental payments in excess of fixed,
minimum and base rents under the Leases, whether finally determined before or
after the expiration of the fiscal years under various Leases. Overage rents
shall be separately prorated under each Lease on the basis of the fiscal year
set forth in each Lease for the payment of overage rents. All interim overage
rent payments made before the Closing Date shall be retained by Seller until
year-end adjustment and determination of Seller's allocable share thereof,
except that interim payments received by either party for the month in which the
Closing Date occurs shall be prorated as between Seller and Purchaser based upon
the number of days in that month occurring before the Closing Date, and the
party receiving the interim payment shall remit to or credit, as appropriate,
the other party its proportionate share. All amounts received by Purchaser on or
after the Closing Date as interim payments of overage rents shall be retained by
Purchaser until year-end adjustment and determination of Seller's allocable
share thereof. Upon final determination of overage rents owed by a tenant under
its Lease for the fiscal year under that Lease in which the Closing Date occurs,
Seller and Purchaser shall adjust between themselves amounts owed for such
fiscal year on account of overage rents, and Seller's allocable share of such
overage rents shall be equal to an amount determined by multiplying total
overage rents owed by the fraction whose numerator is the number of days in such
fiscal year before the Closing Date, and whose denominator is the total number
of days in such fiscal year. At the end of the fiscal year for each Lease for
which overage rents are due, Purchaser shall promptly bill the amounts due, if
necessary. To the extent received by Purchaser under the applicable Lease,
Purchaser shall furnish Seller with financial statements indicating the sales
and overage (percentage) rent figures for each tenant for all relevant periods.
Within fifteen (15) days after collection, Purchaser shall remit to Seller its
allocable share, less interim payments previously retained by Seller, if any. If
Seller has retained amounts in excess of its allocable share, Seller shall,
within fifteen (15) days after notice from Purchaser of the excess owed
Purchaser, remit such excess to Purchaser. Any overage rents with respect to
Leases terminated before the Closing Date shall belong entirely to Seller, and
Purchaser shall remit to Seller all payments made to Purchaser after the Closing
Date on account of such overage rents. Any overage rents with respect to Leases
commencing on or after the Closing Date shall belong entirely to Purchaser.
(d) INTENTIONALLY DELETED.
(e) COMMON AREA MAINTENANCE CHARGES AND SIMILAR EXPENSES. To the
extent tenants under Leases pay monthly estimates of common area
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maintenance charges and similar expenses (collectively, "Charges") with an
adjustment at the end of each fiscal year applicable to Charges, they shall be
prorated in accordance with this Section 6.02(e). For purposes of this Section
6.02(e), Taxes shall not be treated as Charges and shall be prorated exclusively
under Section 6.02(a) above. Until the adjustment described in this section is
made, all amounts received by Seller as interim payments of Charges before the
Closing Date shall be retained by Seller, except that all interim payments
received by either party for the month in which the Closing Date occurs shall be
prorated as between Seller and Purchaser based upon the number of days in that
month occurring before the Closing Date and the party receiving the interim
payment shall remit to (if received on or after the Closing Date) or credit (if
received before the Closing Date) the other party its proportionate share. All
amounts received by Purchaser as interim payments of Charges on or after the
Closing Date shall be retained by Purchaser until adjustment and determination
of Seller's share thereof. At such times as Seller's actual cost of providing
common area maintenance services (as the case may be) prior to the Closing Date
becomes known, Seller's share of actual Charges for Leases in effect as of the
Closing Date shall be determined. If, on the basis of amounts actually incurred
and the estimated payments received by Seller prior to the Closing Date, Seller
has retained amounts in excess of Seller's actual cost incurred for such item,
Seller shall, within fifteen (15) days after either discovery by Seller or
notice from Purchaser of the excess owed Purchaser, remit such excess to
Purchaser. If, on the basis of the foregoing amounts, Seller has received in
estimated payments an amount less than Seller's actual cost incurred for such
item, Purchaser shall, within fifteen (15) days after either discovery by
Purchaser or notice from Seller of the amount owed Seller, remit such amount to
Seller. Purchaser agrees to use commercially reasonable efforts to collect such
sums from tenants. Seller shall have and hereby reserves the right to institute
legal proceedings for collection of such amounts directly against such tenants;
provided, however, Seller shall have no right to institute legal proceedings to
terminate such tenant's Lease or evict tenant from the Real Property.
(f) PREPAID RENTS AND SECURITY DEPOSITS. All prepaid rents and
security and other deposits of all tenants under Leases, with interest thereon
to the extent any interest is required to be paid to such tenants, shall be
delivered by Seller to Purchaser on the Closing Date, or Seller may elect to
give Purchaser a credit against the Purchase Price in the amount of such prepaid
rent or deposits.
(g) CONTRACTS. Purchaser shall be entitled to a credit against the
Purchase Price for sums that are due (or accrued) and unpaid as of the Closing
Date under any Contracts, and Seller shall be entitled to a credit to the extent
that sums have been paid under any Contracts for services to be performed or
goods to be delivered after the Closing Date.
(h) UTILITIES. All utility charges shall be prorated between
Purchaser and Seller as of the Closing Date. To the extent feasible, Seller
shall arrange for meter readings of metered utilities at the Property on the
business day immediately prior to the Closing Date. If such charges and expenses
are unavailable on the Closing Date, a readjustment shall be made within ten
(10) days following the availability of meter readings and accurate bills and
figures.
(i) GOVERNMENTAL, UTILITY AND SIMILAR DEPOSITS. Seller shall have
the right to the return of any deposit, bond or letter of credit given by Seller
to secure
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any Licenses, utility services or other development obligations in connection
with to the Property.
(j) OTHER ITEMS OF EXPENSE OR RECEIPT. All other customarily
prorated items of expense or receipt shall be prorated between the parties
hereto as of the Closing Date. Except with respect to items prorated at closing,
Seller shall be responsible for payment of any and all bills or charges incurred
prior to the Closing Date for work, services, supplies or materials, and
Purchaser shall be responsible for payment of any and all bills or charges
incurred on or after the Closing Date for work, services, supplies or materials.
(k) ADJUSTMENTS. All revenue from the Property, utility charges
and other operating expenses shall be prorated at closing effective as of 11:59
p.m. the day before the Closing Date. Prorations shall be accomplished by an
adjustment in the Purchase Price due Seller on the Closing Date. Each party's
respective obligations under this Article VI to reprorate, reallocate, reimburse
or pay the other party shall survive the closing and shall not merge into any
instrument of conveyance delivered at closing. The parties shall work together
to arrive at final adjustments as soon as practicable and shall remit any
amounts owed promptly upon such determination.
(l) COLLECTIONS AND APPLICATION OF PAYMENTS AFTER CLOSING. After
the Closing Date, Purchaser shall bill tenants for all amounts due under Leases,
including amounts accruing prior to the Closing Date. Purchaser shall prepare
and send to tenants all tax bills, expense statements and other data required by
Leases, and Seller shall cooperate and assist Purchaser in preparing same as may
be reasonably required and requested by Purchaser. Any amounts or charges
payable by tenants on or after the Closing Date with respect to which Seller is
entitled to receive a share under this Agreement and any amount due and owing
Seller before the Closing Date by tenants under the Leases which are unpaid on
the Closing Date, are collectively herein called "Delinquent Amounts."
Notwithstanding the foregoing or any direction from tenants to the contrary,
rental and other payments received by Purchaser or Seller from tenants shall be
first applied toward the actual out-of-pocket costs of collection paid to third
parties other than the managing agent of the Property, then toward the payment
of accrued and unpaid rent and other charges owed to the Purchaser, and any
excess monies received shall be applied toward the payment of Delinquent
Amounts. Purchaser may not waive any Delinquent Amounts nor modify a Lease so as
to reduce amounts or charges owed under Leases for any period in which Seller is
entitled to receive a share of charges or amounts, without first obtaining
Seller's written consent. During the first twelve (12) months after the Closing
Date, Seller shall have and reserves the right to pursue any remedy against any
tenant owing Delinquent Amounts provided that (i) Seller shall notify Purchaser
of its intent to institute any legal proceeding, (ii) Seller shall in no event
institute any proceeding to evict or dispossess a tenant from the Real Property,
and (iii) Seller shall not take any action which would limit Purchaser's rights
to pursue any remedy Purchaser may have for a default under any Lease. Purchaser
may, by written notice to Seller within ten (10) days of receipt of Seller's
notice, restrict Seller from collecting such Delinquent Amounts, but only if
Purchaser first pays Seller such Delinquent Amounts in exchange for Seller's
assignment to Purchaser of all of Seller's rights and causes of action with
respect thereto. With respect to Delinquent Amounts owed by tenants who are no
longer tenants of the Property as of the Closing Date, Seller shall retain all
rights relating thereto.
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6.03 CLOSING COSTS. Seller shall pay all charges customarily attributable
to sellers including, without limitation, all title charges and premiums, survey
charges for the Existing Survey, and all municipal, state and county transfer
taxes. Purchaser shall pay all charges customarily attributable to purchasers
including, without limitation, all recordation charges, and title insurance and
money-lender's escrow charges incurred in connection with any mortgage loans
obtained by Purchaser, and all third party costs (other than costs incurred or
required to be incurred by Seller) associated with Purchaser's due diligence
investigations and tests (including, without limitation, the Survey, if
applicable). The parties shall each be solely responsible for the fees and
disbursements of their respective counsel and other professional advisors in
closing this transaction.
ARTICLE VII
ESCROW
7.01 ESCROW. The parties, through their respective attorneys, shall
establish an escrow with the Escrowee through which the transaction contemplated
hereby shall be closed (the "Escrow") and into which Purchaser shall cause the
Deposit to be deposited. Purchaser, at its sole option, shall direct the
Escrowee to invest any cash portion of the Deposit in accounts or securities
permitted by Escrowee at the highest available rate of interest, which interest
shall be paid to Purchaser (except to the extent otherwise provided in Sections
3.01(a) and 16.01 hereof). The escrow instructions shall be in the usual form of
deed and money escrow agreement customarily used by the Escrowee with such
special provisions added thereto as may be required to conform to the provisions
of this Agreement and so as to provide for a so-called "New York style" closing
requiring the simultaneous delivery of the Deed to Purchaser and disbursement of
the Purchase Price proceeds to Seller as contemplated by Section 15.05 hereof.
Upon creation of the Escrow, anything herein to the contrary notwithstanding,
the payment of the Purchase Price and delivery of the Deed and other documents
required to be delivered at the closing shall be made through the Escrow. Said
Escrow shall be auxiliary to this Agreement, and this Agreement shall not be
merged into nor in any manner superseded by said Escrow. In the event of any
inconsistencies between the terms and provisions of this Agreement and the terms
and provisions of the Escrow, the terms and provisions of this Agreement shall
govern and control. The Escrow costs and fees shall be equally divided between
Purchaser and Seller.
ARTICLE VIII
BROKERAGE
8.01 BROKERAGE. Purchaser hereby represents and warrants to Seller that
Purchaser has not dealt with any broker or finder in respect to the transaction
contemplated hereby, and Purchaser hereby agrees to indemnify Seller for any
claim for brokerage commission or finder's fee asserted by a person, firm or
corporation claiming to have been engaged by Purchaser. Seller hereby represents
and warrants to Purchaser that Seller has not dealt with any broker or finder in
respect to the transaction contemplated hereby, and Seller hereby agrees to
indemnity Purchaser for any claim for brokerage commission or finder's fee
asserted by a person, firm or corporation claiming to have been engaged by
Seller.
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ARTICLE IX
CASUALTY AND CONDEMNATION
9.01 CASUALTY. If, prior to the Closing Date, the Real Property and the
improvements thereon (other than the Non-Owned Buildings) shall be destroyed or
damaged in an amount in excess of the Material Damage Amount (as hereinbelow
defined), by fire or other casualty, or if the premises of any tenant of the
Building or of any Non-Owned Buildings are damaged as a result of fire or other
casualty to such extent that such tenant is entitled pursuant to its Lease to
terminate its Lease and does so as a result of such casualty loss, then either
Seller or Purchaser shall have the option to terminate this Agreement by written
notice to the other party within ten (10) days after such party has received
notice of the casualty, in which event all documents shall be returned to the
respective parties, and the Deposit shall be promptly returned to Purchaser, and
thereupon, this Agreement shall terminate, and neither party shall have any
further rights or obligations hereunder except any Surviving Obligations. Seller
agrees to give Purchaser notice of any fire or other casualty within forty-eight
(48) hours after learning of any such event. The failure of either party to give
such notice of termination within the aforesaid ten (10) day period shall be
conclusive evidence that such party has waived such option to terminate. In the
event of fire or other casualty causing damage (a) in an amount less than the
Material Damage Amount, or (b) in an amount more than the Material Damage Amount
or if a tenant of the Building or of any Non-Owned Buildings terminates its
Lease as a result of such casualty loss, but with respect to which either party
has not elected to terminate this Agreement as aforesaid, then, provided
Purchaser has waived all conditions precedent to Purchaser's obligation to
perform hereunder, Purchaser shall have the right to control the adjustment and
settlement of any insurance claim relating to said damage, and upon the Closing
Date Seller shall assign to Purchaser the interest of Seller in and to any
insurance proceeds with respect to said damage. In such event, Seller will also
credit against the Purchase Price the amount of any deductible on Seller's
casualty and insurance policies covering said damage. For the purposes hereof,
the term "Material Damage Amount" shall mean damage, the repair cost of which is
reasonably estimated by Seller to be in excess of an amount of money equivalent
to two and one-half percent (2.5%) of the Purchase Price. If the Closing Date is
less than ten (10) days following the last day on which either party is entitled
to elect to terminate this Agreement, then closing shall be delayed until such
election is made or deemed to have been made.
9.02 CONDEMNATION. If, prior to the Closing Date, any judicial,
administrative or other proceeding relating to the proposed taking of any
portion of the Real Property by condemnation or eminent domain or any act in the
nature of eminent domain is instituted, Seller hereby agrees to furnish
Purchaser written notification with respect to any such proceeding within
forty-eight (48) hours of Seller's learning of the same, and Purchaser shall
have the option, if such proceeding relates to a Substantial Portion (as
hereinafter defined) of the Real Property or will enable any tenant under its
Lease to terminate its Lease, to terminate this Agreement by giving Seller
written notice of such termination within ten (10) days after receipt of written
notification of any such proceeding. Purchaser's failure to give such notice in
such time shall be conclusive evidence that Purchaser has waived such option to
terminate and, in such event, Purchaser shall be credited (against the Purchase
Price if any proceeds or award has been paid to Seller) or assigned, at closing,
all of Seller's rights to any proceeds or award for such taking. Should
Purchaser elect to terminate this Agreement due to any such proceeding, the
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Deposit shall immediately be returned to Purchaser, and thereupon, this
Agreement shall terminate, and neither party shall have any further rights or
obligations hereunder except any Surviving Obligations. If the proceeding does
not involve a Substantial Portion of the Real Property and does not enable any
tenant to terminate its Lease, Purchaser shall not have the right to terminate
this Agreement but shall be credited (against the Purchase Price if any proceeds
or award has been paid to Seller) or assigned, at closing, all of Seller's
rights to the proceeds or award relating thereto. For the purposes of this
paragraph, the proceeding shall be deemed to involve a "Substantial Portion" of
the Real Property if the proceeding (i) reduces the net rentable square feet of
the Building, (ii) causes a deprivation of access to the Real Property, or (iii)
involves a taking of parking areas located on the Real Property such that
subsequent to such taking, the Property will be in violation of applicable
zoning codes and ordinances, or in violation of parking requirements contained
in any of the Leases.
ARTICLE X
AFFIRMATIVE COVENANTS OF SELLER
10.01 AFFIRMATIVE COVENANTS OF SELLER.
(a) MAINTENANCE OF PROPERTY. From the date hereof to the Closing
Date, Seller shall (i) maintain the Property free from waste and neglect and in
good order and repair, and (ii) keep and perform or cause to be performed all
required obligations of the landlord under the Leases, and of the Seller under
the Contracts, Licenses and Legal Requirements. Subject to closing and the
provisions of Article IX, on the Closing Date, Seller shall tender possession of
the Property to Purchaser in substantially the same physical condition the
Property was in on the date hereof, except for ordinary wear and tear and the
ongoing Bassett TI Work, if any.
(b) INSURANCE. From the date hereof to the Closing Date, Seller
shall maintain or cause to be maintained all existing liability, casualty and
other insurance upon and in respect to the Property.
(c) OPERATION AND MANAGEMENT. From the date hereof to the Closing
Date, Seller shall operate and manage the Property in the same manner as it has
been operated and managed heretofore, provided that during said period, without
the prior written consent of Purchaser (which consent shall not be unreasonably
withheld or delayed and shall be deemed given if Purchaser fails to respond to a
request for consent within five (5) days), Seller shall not do, suffer or
permit, or agree to do, any of the following:
(i) Enter into any transaction with respect to or affecting
the Property out of the ordinary course of business;
(ii) Sell, encumber or grant any interest in the Property or
any part thereof in any form or manner whatsoever;
(iii) Enter into, amend, waive any rights under, terminate or
extend any Contract or Lease (except in connection with the Bassett TI Work); or
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(iv) Remove from the Real Property any of the fixtures
thereon or any of the Personal Property except if replaced with fixtures or
Personal Property of equal or greater value and utility (other than in
connection with the Bassett TI Work).
(d) LICENSES. Seller shall use commercially reasonable efforts to
preserve in force all existing Licenses and to cause all those expiring to be
renewed prior to the Closing Date. If any such Licenses shall be suspended or
revoked, Seller shall promptly so notify Purchaser.
(e) OUTSTANDING MECHANICS' LIENS. Seller shall be and remain
responsible for all obligations under any outstanding contracts made by Seller
for any improvements to the Property which are not assumed by Purchaser at
closing, and Seller shall cause to be discharged or insured over (by payment,
bond, title insurance endorsement or otherwise) all mechanics' and material
liens arising from any labor or materials furnished to the Property for such
work (other than obligations that are properly the obligations of the tenants
under the Leases or any third party).
(f) CERTIFICATE OF ENVIRONMENTAL REPORTS. Seller shall use good
faith efforts without additional cost or expense to Seller to have the
Environmental Reports (as hereinafter defined) certified in favor of Purchaser.
(g) PURCHASER'S AUDIT OF BOOKS AND RECORDS. During the Inspection
Period and for a period of one hundred twenty (120) days from and after the
Closing Date, Seller shall reasonably cooperate, at no cost or additional
obligation to Seller, with Purchaser and Purchaser's auditors in the preparation
of an audit of the books and records related to the income derived and expenses
incurred in connection with Seller's operation of the Property for calendar year
2003; it being agreed that Purchaser shall reimburse any and all out-of-pocket
expenses incurred by Seller in connection with its cooperation with such audit.
(h) BASSETT TI WORK. Seller shall have the right to execute a
construction contract and related agreements (collectively, the "TI Work
Documents") for the performance of the Bassett TI Work required to be performed
by the landlord under the Lease dated April 21, 2004 between BDF and Seller (the
"Bassett Lease"). Promptly after execution of the TI Work Documents, Seller
shall deliver copies of the same to Purchaser. Prior to the expiration of the
Inspection Period, the parties shall negotiate an access and escrow agreement in
form and substance reasonably acceptable to both parties (the "Access and Escrow
Agreement") pursuant to which (i) Seller shall agree to cause the full and
complete performance of the Bassett TI Work, including all work to be performed
by third party contractors under the TI Work Documents, (ii) Purchaser shall
grant access to the Property to Seller for purposes of causing the performance
of the Bassett TI Work in accordance with the TI Work Documents, (iii) Seller
shall escrow with Escrowee (at its Chicago office) any amounts that have not
been paid under the TI Work Documents prior to Closing (and other sums, if any,
as required by the Title Insurer to issue title insurance to Purchaser against
mechanics liens arising from the Bassett TI Work), which such sums shall, after
Closing, be released from the escrow and disbursed in payment of amounts due and
owing under the TI Work Documents, as such amounts become due, and (iv) Seller
shall indemnify Purchaser and its successors and assigns against any loss, cost
or expense that arises by reason of any default by Seller in Seller's
performance of Seller's obligations
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thereunder. At Closing, Seller shall cause ORIX Real Estate Equities, Inc. to
join in the execution of the Access and Escrow Agreement for the purpose of
guaranteeing Seller's obligations thereunder. Any amounts that Seller is
required to deposit into escrow under this Section 10.01(h) may be made from the
Purchase Price proceeds otherwise payable to Seller upon Closing hereunder.
ARTICLE XI
REPRESENTATIONS OF PURCHASER
11.01 REPRESENTATIONS OF PURCHASER. Purchaser hereby warrants and
represents to Seller as of the date hereof that:
(a) AUTHORITY, DUE ORGANIZATION. Purchaser has the full right,
power, and authority to purchase the Property as provided herein and to execute,
deliver, and carry out all of the provisions of this Agreement. The execution
and delivery of this Agreement and any other documents required of Purchaser
hereunder and the performance and observance of all of its terms, conditions,
and obligations, have been or will be duly authorized by all necessary action of
Purchaser. Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of Illinois.
(b) FINANCIAL ABILITY. Purchaser is and, to Purchaser's knowledge,
on the Closing Date will be, financially able to consummate this Agreement in
the manner herein contemplated.
ARTICLE XII
REPRESENTATIONS OF SELLER
12.01 REPRESENTATIONS OF SELLER. Seller hereby represents and warrants to
Purchaser as of the date hereof that:
(a) AUTHORITY, DUE ORGANIZATION. Subject to approval by the Board
of Directors of ORIX Corporation AND the waiver by Dayton Hudson Corporation of
its right of first offer as contemplated by Section 14.01 hereof, Seller has
full right, power and authority to sell, convey, transfer, and assign the
Property to Purchaser as provided herein and to execute, deliver, and carry out
all of the provisions of this Agreement. The execution and delivery by Seller of
this Agreement and any other documents required of Seller hereunder and the
performance and observance of all of its terms, conditions, and obligations,
have been or will be duly authorized by all necessary action of Seller, subject
to approval by the Board of Directors of ORIX Corporation as contemplated by
Section 14.01 hereof. Seller is a general partnership validly formed and
existing under the laws of Illinois.
(b) LEASES. The Leases listed in EXHIBIT B are all of the Leases
affecting the Real Property as of the date hereof. To the best of Seller's
knowledge, except as set forth in EXHIBIT B, as of the date hereof; (1) all
tenants other than QWEST Wireless and BDF are occupying their respective leased
premises; (2) all Leases are in good standing and are in full force and effect;
(3) all of landlord's obligations under the Leases, including with respect to
the
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Building the obligation to build out space to the specifications provided in the
Leases, have been satisfied other than the Bassett TI Work; (4) Seller has not
received any notice from any tenant under a Lease alleging that Seller is in
default thereunder; (5) there is no material monetary default and to the best of
Seller's knowledge, no material non-monetary default by any tenant under a Lease
(it being acknowledged however that QWEST Wireless is not currently operating in
its space); (6) the Leases do not grant any tenants thereunder an option or
right of first refusal to purchase the Property except for the right of first
refusal contained in the Lease with Dayton Hudson Corporation; (7) there are no
remaining unutilized or unpaid rent concessions or tenant improvement allowances
under the Leases (subject, however to the landlord obligations with respect to
the Bassett TI Work); and (8) no tenant has any fee interest in the Land or the
Building, except for the interest of Dayton Hudson Corporation in the "Tenant
Equipment" pursuant to and as defined in the Lease, dated August 17, 1999,
between Seller and Dayton Hudson Corporation. For purposes of this Section
12.0l(b) only, a material monetary default shall be deemed to have occurred if a
sum in excess of one month's rent is past due and the applicable cure period
shall have expired.
(c) CONTRACTS. The Contracts listed in EXHIBIT D hereto and the TI
Work Documents are the only Contracts known to Seller which will affect the
Property after the Closing Date. To the best of Seller's knowledge, each of the
Contracts is at present in good standing in full force and effect and has not
been and will not be modified or amended, except for the TI Work Documents
(which have not been executed as of the date hereof) and except as otherwise
indicated in EXHIBIT D hereto. Each Contract represents the complete agreement
between Seller and such other party as to the services to be performed
thereunder and the compensation to be paid for such services, and, to the best
of Seller's knowledge, such other parties possess no unsatisfied claim against
Seller. To the best of Seller's knowledge, no portion of the Property shall be
subject at the closing to the burdens and obligations of any management
agreement relating to the Property.
(d) LICENSES. The Licenses listed in Exhibit C are all of the
Licenses from governmental authorities held by Seller in connection with its
ownership and operation of the Real Property and Personal Property. To the best
of Seller's knowledge, each of the Licenses is in full force and effect and in
good standing. Seller has not received notice of any intention on the part of
the issuing authority to cancel, suspend or modify any of the Licenses or to
take any action or institute any proceedings to effect such a cancellation,
suspension or modification.
(e) INTENTIONALLY DELETED.
(f) POSSESSION. To the best of Seller's knowledge, except for
Seller and tenants under the Leases and except for any rights granted to any
third parties pursuant to any Permitted Title Exceptions, there are no persons
in possession or occupancy of the Real Property or any part thereof, nor are
there any persons who have possessory rights with respect to the Real Property
or any part thereof.
(g) COMPLIANCE WITH LEGAL REQUIREMENTS. To the best of Seller's
knowledge, the improvements on the Property are presently used and operated in
compliance by Seller (as distinguished from the compliance by a tenant under any
Lease whereby the terms of such Lease provide that the tenant and not Seller is
responsible for such
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compliance) with all Licenses and all Legal Requirements. Seller has not
received notice of any violation of Legal Requirements applicable to any tenant.
(h) LITIGATION. Seller has received no notice of, and to the best
of Seller's knowledge there are no, claims, causes of action or other litigation
or proceedings pending with respect to the Property or Seller's ownership
interest therein or any part thereof except as set forth on EXHIBIT E attached
hereto.
(i) VIOLATIONS OF LEGAL REQUIREMENTS. Seller has received no
notice of any violations of Legal Requirements in respect to the Property, which
have not been entirely corrected.
(j) CONDEMNATION; ASSESSMENTS. Seller has no knowledge of, and
Seller has received no notice from any person or entity with respect to any
existing or pending (i) condemnation of any part of the Real Property; or (ii)
special tax or assessment to be levied against the Real Property.
(k) ENVIRONMENTAL MATTERS. Except as set forth in that certain (i)
Letter regarding Review of Environmental Conditions (Project No. KV03025A) dated
January 15, 2003, from Associated Earth Sciences, Inc., (ii) Updated Phase I
Environmental Site Assessment (Project No. BV98024E) dated August 6, 1999,
prepared by Associated Earth Sciences, Inc., (iii) Asbestos Containing Materials
Screening Survey, Former SeaFirst Bank Drive-Thru Facility, Seattle, Washington,
dated August 6, 1999 prepared by Associated Earth Sciences, Inc., (iv) Mold
Contaminated Materials Removal and Disposal Protocol dated June 2, 2003,
prepared by Prezant Associates, and (v) Letter regarding mold consulting
services, dated January 2, 2004 from Prezant Associates, Inc. (collectively, the
"Environmental Reports"), to the best of Seller's knowledge, (i) no Hazardous
Materials (as defined below) are presently located on the Real Property or have
been released into the environment, or discharged, placed or disposed of at, on
or under the Real Property; (ii) no underground storage tanks are located on the
Real Property; and (iii) the Real Property has never been used as a dump for
Hazardous Materials.
The term "Hazardous Materials" shall mean any substance, material, waste,
gas or particulate matter which is regulated by any local governmental
authority, the State of Washington, or the United States Government, including
but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous waste," or "restricted hazardous waste" under any provision of
Washington law; (ii) petroleum; (iii) asbestos; (iv) polychlorinated biphenyl;
(v) radioactive material; (vi) designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C, Section 1251 et seq.
(33 U.S.C. Section 1317); (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C, Section
6901 et seq. (42 U.S.C. Section 6903); or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601). The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all federal, state and
local environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability or
standards concerning or in connection with Hazardous Materials.
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(l) LEASING COMMISSIONS. As of the Closing Date, there shall be no
leasing commissions due and payable on account of any Lease or which may become
due thereafter upon the renewal of the Leases as a result of any agreement
entered into by the Seller, other than as set forth on EXHIBIT I attached hereto
and made a part hereof, which such leasing commissions Seller shall be cause to
be paid as set forth on EXHIBIT I.
(m) UNEMPLOYMENT TAXES. Seller has paid all unemployment taxes
with respect to its employees, if any, that are currently due and owing.
(n) REAL PROPERTY CONDITION. To Seller's knowledge as of the date
hereof, the roof of the Building is free of leaks and there are no material
physical or structural defects applicable to the improvements on the Real
Property. For purposes of this subsection, a defect shall be deemed to be
"material" if the cost to correct such defect or to repair and restore the
damage resulting therefrom exceeds or would exceed the sum of Ten Thousand
Dollars ($10,000.00) on an individual basis or for a series of related defects.
The foregoing representation shall not be construed to mean that the Real
Property shall remain in the condition represented after the Closing Date.
(o) CAM CHARGES. To Seller's knowledge, Seller is not delinquent
in its obligation to pay any common area maintenance charges.
12.02 SUBSEQUENT VARIANCES IN REPRESENTATIONS OF SELLER.
(a) In the event at any time prior to closing, Seller or Purchaser
learns or has reason to believe that any of the representations and warranties
by Seller under Section 12.01 hereof are no longer accurate (or will not be
accurate at closing, as the case may be), such party shall promptly notify the
other party by a written notice (a "Variance Notice") and, in the Variance
Notice, specify the factors rendering or likely to render such representation
and warranty inaccurate (the "Variance"). Within ten (10) days of delivering or
receiving a Variance Notice, Seller shall deliver to Purchaser written notice
whether it has elected to cure the underlying facts or circumstances causing the
Variance (it being agreed that the failure to deliver such notice shall be
deemed Seller's election not to cure the Variance). If Seller elects to cure the
Variance, Seller will exercise reasonable efforts to effectuate the cure on or
before the closing and closing may be delayed by Seller as necessary for a
period not to exceed thirty (30) days while it attempts to cure the same. If
Seller ultimately fails to cure such Variance, then the parties shall treat such
failure as if Seller had elected not to cure the Variance pursuant to subsection
12.02(b) below.
(b) If Seller elects not to cure the Variance, this Agreement
shall, at the sole election of Purchaser exercisable by written notice to Seller
delivered not later than five (5) business days after Seller has, or has been
deemed to have, elected not to cure the Variance, be terminated, whereupon the
Deposit shall be returned to Purchaser and the parties shall have no further
rights hereunder except with respect to the Surviving Obligations. However, If
Purchaser does not terminate the Agreement, the representations and warranties
in Section 12.01 shall be deemed to be modified by the Variance.
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12.03 PURCHASER'S KNOWLEDGE AS TO REPRESENTATIONS OF SELLER.
Notwithstanding anything in this Agreement to the contrary, if (i) on the date
hereof Purchaser has knowledge that any of Seller's representations or
warranties set forth in Section 12.01 are untrue in any respect, then the breach
by Seller of the representations or warranties as to which Purchaser has such
knowledge shall be deemed waived by Purchaser and Seller shall not be in default
hereunder and shall have no liability to Purchaser or its successors or assigns
in respect thereof, or (ii) after the date hereof and prior to the closing
Purchaser obtains knowledge that any of Seller's representations or warranties
set forth in this Agreement, or any of Seller's representations or warranties
made in any documents delivered by Seller in connection with the closing, are
untrue in any respect but Purchaser elects nonetheless to proceed with closing,
then the breach by Seller of such representations or warranties shall be deemed
waived by Purchaser, and Seller shall not be in default hereunder and shall have
no liability to Purchaser or its successors or assigns in respect thereof
following the closing for the breach of such representations or warranties. For
purposes of this Section 12.03, Purchaser shall be deemed to have or to have
obtained knowledge of any such matter or thing only if such matter or thing (i)
is set forth in any Lease, Contract, License, estoppel letter or any other
document delivered, to Purchaser or Purchaser's attorneys including without
limitation those referenced or disclosed on any of Exhibits B, C, D and E
attached hereto, (ii) was set forth or referenced in any written studies or
reports furnished to Purchaser or Purchaser's attorneys including without
limitation the Title Commitment and environmental reports, (iii) was set forth
or referenced in any letter, memorandum, or other written communication provided
to Purchaser or Purchaser's attorneys, or (iv) was otherwise within the actual
knowledge of Purchaser or Purchaser's attorneys.
ARTICLE XIII
RIGHT TO INSPECT
13.01 DOCUMENTS. Seller shall promptly make available to Purchaser for
Purchaser's inspection:
(i) The Leases, Contracts and Licenses;
(ii) To the extent the same exist and are in Seller's
possession, as-built plans and specifications for the improvements on the Real
Property;
(iii) To the extent the same exist and are in Seller's
possession, structural and other construction-related inspection reports for the
Real Property;
(iv) Tenant files (exclusive of any materials subject to the
attorney/client privilege or which incorporate Seller's internal financial
analyses or any third party offers to purchase the Property);
(v) The Environmental Report;
(vi) To the extent the same exist and are in Seller's
possession, 2003 statements of income and expenses for the Property; and
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(vii) To the extent the same exist and are in Seller's
possession, 2003 and 2004 calendar year operating budget.
13.02 RIGHT TO INSPECT.
(a) During the time period commencing as of May 21, 2004 and
expiring on June 21, 2004 (the "Inspection Period"), Purchaser, at its own cost
and expense, may cause one or more studies, tests, analyses, reviews and other
inquiries and investigations of the Land, Building and common areas and
facilities relating thereto and otherwise with respect to the Property
(collectively, "Purchaser's Investigations") as Purchaser reasonably deems
appropriate (subject to the provisions of this Agreement) in order to determine
Purchaser's satisfaction, in its sole discretion, with all of the same.
Purchaser, as part of Purchaser's Investigations during the Inspection Period,
may also interview the tenants and review the Leases, any reciprocal easement or
operating agreements, any management agreements, service contracts, construction
contracts and other third party agreements pertaining to the Property as well as
any guarantees and warranties which Seller received from any contractors and/or
subcontractors pertaining to the Property which will continue in force beyond
the closing. Seller shall cooperate with Purchaser in order to afford Purchaser
reasonable access to all of Seller's files and records regarding the
development, ownership and operation of Property (it being understood that
Seller may withhold access to files and records containing material which is
subject to the attorney/client privilege or which incorporates Seller's internal
financial analyses or any third party offers to purchase the Property) including
without limitation by providing access to copies of any Phase I and Phase II
Environmental Reports and licenses and permits relating to the Property which
are in Seller's possession as well as physical access to the Real Property in
order to conduct those of Purchaser's Investigations which are to be performed
on-site at the Real Property. Seller will also reasonably cooperate with
Purchaser and its representatives in order to help facilitate Purchaser's audit
of the books and records relating to the income derived and expenses incurred in
connection with Seller's ownership and operation of the Property for the most
recently completed year of operations; it being understood however that
Purchaser shall reimburse any and all out-of-pocket expenses incurred by Seller
in connection with its cooperation with such audit.
(b) In connection on with any and all entries upon the Land by
Purchaser, its employees, contractors, consultants, agents and other
representatives (any and all of the foregoing, "Purchaser's Representative(s)"),
Purchaser agrees as follows: (i) all of Purchaser's Investigations on or about
the Land shall be conducted only following reasonable (and in no event less than
one (1) business day) prior written notice to Seller, and shall occur during
normal business hours and in the company of Seller's representative(s) at the
Property; (ii) all of Purchaser's Investigations shall be subject to the rights
of the various tenants in possession of the Land and/or improvements thereon,
and shall be conducted in such a manner so as to minimize, to the greatest
extent reasonably practicable, any disruption to their respective business
activities; (iii) Purchaser shall request from third parties acting as
Purchaser's Representative(s) that they provide Seller with certificates of
insurance issued by reputable insurers having a rating of at least "A" by A.M.
Best Company evidencing current worker's compensation insurance meeting the
legally mandated limits of coverage as well as commercial general liability
insurance on an occurrence basis with coverage limits of not less than Two
Million Dollars ($2,000,000) combined single limit per occurrence for personal
liability (including bodily injury and death)
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and not less than One Million Dollars ($1,000,000) per occurrence for property
damage and with endorsements (copies to be provided to Seller) providing that
such coverages are primary; (iv) Purchaser at its own expense shall promptly
repair any and all damage resulting from the activities of Purchaser's
Representatives on or about the Land and/or improvements thereon and Purchaser
shall indemnity, defend and hold Seller harmless from and against any and all
claims, actions, suits, demands, losses, damages, liabilities, obligations,
judgments, settlements, awards, penalties, costs and expenses (including without
limitation reasonable attorneys fees and expenses) for any and all mechanics
liens, property damage (including without limitation environmental
contamination), personal injury or death incurred by Seller as a result of any
and all acts or omissions of Purchaser's Representatives on or about the Land
and/or improvements thereon; and (v) no invasive testing or sampling of the Land
or any components of the Building will be permitted without Seller's express
prior written consent.
(c) If Purchaser, in its sole discretion, is not satisfied with
the results of any of Purchaser's Investigations, Purchaser may terminate the
Agreement by written notice to Seller at its address as set forth below prior to
the expiration of the Inspection Period, whereupon the Deposit and any accrued
interest thereon will be returned to Purchaser and there will be no further
rights or recourse as between Purchaser and Seller except with respect to the
Surviving Obligations. For the purposes of this Agreement, "Surviving
Obligations" shall mean all of the respective obligations of the parties under
the provisions of any and all of this Article XIII and Section 8.01. The failure
of Purchaser to provide Seller timely notice prior to the expiration of the
Inspection Period of Purchaser's dissatisfaction with the results of Purchaser's
Investigations shall conclusively be deemed to evidence Purchaser's satisfaction
with all such matters, its agreement to assume at Closing all Leases, Licenses,
Contracts, reciprocal easement or operating agreements, and other agreements
pertaining to the Property disclosed to or otherwise discovered by Purchaser
during the Inspection Period, and Purchaser's waiver of all rights of
termination with respect to Purchaser's Investigations.
13.03 RETURN OF INFORMATION; CONFIDENTIALITY. If for any reason this
Agreement is terminated, Purchaser shall use reasonable efforts to return to
Seller all information related to the Property then in Purchaser's actual
possession or in the possession of Purchaser's Representatives within ten (10)
business days after such termination. In any event, Purchaser shall hold all
such information, including without limitation the reason(s) for Purchaser's
termination of this Agreement, in confidence; provided, however, that such
information may be revealed to Purchaser's attorneys, accountants, other parties
to whom Purchaser is obligated to make reports and other parties who have a need
for such information in connection with the conduct of Purchaser's affairs, and
provided further that such information may be revealed and disclosed in
connection with any judicial or administrative proceeding in which a subpoena or
other request for such information is issued or made, or is required by
Purchaser in the prosecution or defense of any judicial or administrative
proceeding in which Purchaser is involved.
13.04 CONDITION OF PROPERTY.
(a) DISCLAIMER. Except as set forth in Article XII above, Seller
has not made, and Purchaser acknowledges that Seller has not made, any warranty
or representation, express or implied, written or oral, statutory or otherwise
concerning the Property or any uses to
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which the Property may or may not be put, including, but not limited to, the
following: (i) the condition of title to the Property; (ii) the nature, physical
condition or any other aspect of the Property; (iii) the existence of Hazardous
Materials in, on about, under or affecting the Property.
(b) ACCEPTANCE. SUBJECT TO THE EXPRESS TERMS OF THIS AGREEMENT,
PURCHASER ACKNOWLEDGES FOR PURCHASER AND PURCHASER'S SUCCESSORS AND ASSIGNS THAT
PURCHASER WILL BE ACQUIRING THE PROPERTY BASED UPON PURCHASER'S OWN
INVESTIGATION AND INSPECTION THEREOF. SELLER AND PURCHASER AGREE THAT THE
PROPERTY SHALL BE SOLD AND THAT PURCHASER SHALL ACCEPT POSSESSION OF THE
PROPERTY ON THE CLOSING DATE "AS IS, WHERE IS, WITH ALL FAULTS" WITH NO RIGHT OF
SET-OFF OR REDUCTION IN THE PURCHASE PRICE, AND THAT EXCEPT AS EXPLICITLY SET
FORTH IN THIS AGREEMENT, SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND, EXPRESS OR IMPLIED, AND SELLER DOES HEREBY DISCLAIM AND RENOUNCE
ANY SUCH REPRESENTATION OR WARRANTY NOT EXPLICITLY SET FORTH IN THIS AGREEMENT.
PURCHASER SPECIFICALLY ACKNOWLEDGES, THAT EXCEPT AS EXPLICITLY SET FORTH IN THIS
AGREEMENT, PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER OR ANY REPRESENTATIVE OR AGENT
OF SELLER AS TO ANY MATTER CONCERNING THE PROPERTY, INCLUDING, WITHOUT
LIMITATION: (1) THE CONDITION OR SAFETY OF THE PROPERTY INCLUDING, BUT NOT
LIMITED TO, SOILS AND GEOLOGY, THE EXISTENCE OR NONEXISTENCE OF HAZARDOUS
MATERIALS, OR SUITABILITY OF THE PROPERTY FOR A PARTICULAR PURPOSE; (2) WHETHER
THE PROPERTY IS IN GOOD CONDITION, OR IN COMPLIANCE WITH APPLICABLE CITY,
COUNTY, STATE OR FEDERAL STATUTES, CODES OR ORDINANCES. ANY REPORTS, REPAIRS OR
WORK REQUIRED BY PURCHASER ARE TO BE THE SOLE RESPONSIBILITY OF PURCHASER AND
PURCHASER AGREES THAT THERE IS NO OBLIGATION ON THE PART OF SELLER TO MAKE ANY
CHANGES, ALTERATIONS, OR REPAIR TO THE PROPERTY.
ARTICLE XIV
CONDITIONS TO CLOSING
14.01 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. In addition to the other
conditions set forth in this Agreement, the following shall be conditions
precedent to Seller's obligation to close hereunder:
(a) all representations and warranties of Purchaser shall be true
and correct in all material respects as of the Closing Date and Purchaser shall
certify the same at closing;
(b) Purchaser shall have observed and performed in all material
respects all covenants and obligations on its part to be observed or performed
at or prior to Closing; and
(c) Seller and Purchaser shall have agreed by the end of the
Inspection Period upon the form and substance of (i) the document to be attached
to this Agreement as EXHIBIT H,
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as contemplated in Section 15.04(c), and (ii) the Access and Escrow Agreement,
as contemplated in Section 10.01(h).
(d) The Board of Directors of ORIX Corporation shall have approved
the transaction contemplated hereunder on or before June 10, 2004, AND Dayton
Hudson Corporation (d/b/a Target) shall have elected not to exercise its right
of first offer with respect to said transaction on or before June 21, 2004; it
being agreed that (i) in the event such Board of Directors' approval is not
timely received, Seller may elect to terminate this Agreement upon notice to
Purchaser, and (ii) in the event Dayton Hudson Corporation exercises its right
of first offer, this Agreement shall automatically terminate. In the case of
either such termination of this Agreement, Seller shall reimburse Purchaser for
its bona fide out-of-pocket costs incurred in connection with Purchaser's
Investigations up to a maximum reimbursement to Purchaser of Fifty Thousand
Dollars ($50,000).
14.02 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. IN addition to the
other conditions set forth in this Agreement, the following shall be conditions
precedent to Purchaser's obligation to close hereunder:
(a) all representations and warranties of Seller (as modified by
any Variance pursuant to Section 12.02 hereof) shall be true and correct in all
material respects as of the Closing Date and Seller shall have observed and
performed in all material respects all covenants and obligations on its part to
be observed or performed at or prior to Closing;
(b) Seller shall have obtained and delivered estoppel letters
addressed to Purchaser from (i) each tenant under the Leases other than QWEST,
and (ii) all third parties under any reciprocal easement agreement or operating
agreement with respect to the Property, if any (any of the foregoing, a "REA"),
confirming the material provisions of their respective Leases or REAs and
setting forth no facts indicating any default by the landlord (or Seller, with
respect to a REA) in the performance of its obligations thereunder (it being
agreed that in lieu of any form of estoppel requested by Purchaser, the
respective forms of estoppel letters required by the Leases or REAs, if any,
and, absent a required form under any given Lease or REA, the form of estoppel
letter normally utilized by any such tenant or REA party shall be acceptable to
Purchaser);
(c) There will be no threatened or pending litigation relating to
the Property at the time of closing other than any mechanics' lien or other
litigation relating to matters for which any of the tenants are solely
responsible pursuant to their respective Leases and such other matters as
Purchaser may agree to accept;
(d) Seller and Purchaser shall have agreed by the end of the
Inspection Period upon the form and substance of (i) the document to be attached
to this Agreement as EXHIBIT H, as contemplated in Section 15.04(c), and (ii)
the Access and Escrow Agreement, as contemplated in Section 10.01(h); and
(e) Title Insurer shall be prepared to issue a 3.1 zoning
endorsement to the owner's title insurance policy to be delivered to Purchaser
at the closing.
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If any representation or warranty of Seller is true and accurate in all material
respects as of the date hereof, but due to a change in factual circumstances,
Seller cannot certify that any representation or warranty of Seller contained in
Section 12.01 is true and correct as of the Closing Date, or Seller is unable to
obtain a required estoppel letter(s) from any tenant or the tenant estoppel
letters are inconsistent with Sellers representations and warranties herein, or
any of the other conditions set forth in this Section 14.02 are not satisfied on
or before the Closing Date, then Purchaser shall not be entitled to exercise the
remedy set forth in Section 16.01 and Purchaser shall, as its sole and exclusive
remedy, either waive such condition and proceed to closing or terminate this
Agreement. Upon any such termination, the Deposit together with interest
thereon, if any, shall forthwith be returned to Purchaser and all obligations of
the parties hereunder other than any Surviving Obligations shall cease and this
Agreement shall have no further force or effect except with respect to the
Surviving Obligations.
ARTICLE XV
CLOSING
15.01 TIME AND PLACE. The transaction contemplated hereby shall close on
the Closing Date at the offices of the Title Insurer or on such other date and
place as the parties may mutually agree at a time agreed upon by the parties.
15.02 SELLER'S DELIVERIES. On the Closing Date, Seller shall deliver to
the Escrowee for deposit into the Escrow the following closing documents (all
duly executed, and acknowledged and in recordable form as appropriate) and other
items:
(a) The Deed;
(b) Seller's general assignment of all right, title and interest
of Seller in and to the Contracts, Leases and Licenses as provided in
Section 2.0l(b);
(c) Seller's bill of sale transferring the Personal Property to
Purchaser as provided in Section 2.01(c);
(d) Original executed counterparts or duplicate originals (or, to
the extent the foregoing are not available, certified copies) of all Contracts,
Leases and Licenses;
(e) Letters to tenants under the Leases (in the same form and
substance as the letter attached hereto as EXHIBIT G) advising that the Property
has been sold to Purchaser (or as Purchaser may otherwise designate), directing
payment of rental in accordance with the directions of Purchaser; and directing
tenants to deliver to Purchaser within a reasonable period after the Closing
Date, endorsements of any insurance policies required under the tenant's Lease,
deleting the interests of Seller with regard to occurrences thereafter arising
and adding the interest of Purchaser as landlord;
(f) Seller's certification that all representations and warranties
of Seller contained in Section 12.01 (as modified by any Variance) are true and
correct in all material respects as of the Closing Date;
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(g) All keys to the Real Property, if any;
(h) The Survey;
(i) ALTA Statement, in duplicate;
(j) Gap Undertaking as provided in Section 15.05;
(k) Any required documentary or transfer stamp declaration;
(1) Non-Foreign seller affidavit complying with the requirements
of Section 1445 of the Internal Revenue Code;
(m) A Recertification of EXHIBIT E, updated as necessary to
reflect any changes thereto from the date hereof;
(n) Evidence, satisfactory to the Title Insurer, with copies to
Purchaser, authorizing the consummation by Seller of the transaction
contemplated hereby and the execution and delivery of the closing documents on
behalf of Seller; and
(o) As built plans and specifications for the construction of the
Building and related improvements on the Real Property, to the extent in
Seller's possession.
15.03 PURCHASER'S DELIVERIES. On the Closing Date, Purchaser shall deliver
to the Escrowee for deposit into the Escrow, the following documents (all duly
executed and acknowledged and in recordable form as appropriate) and other
items:
(a) The balance of the Purchase Price;
(b) ALTA Statement, in duplicate;
(c) Any required documentary or transfer stamp declaration;
(d) Purchaser's assumption of all of Seller's obligations under
the Contracts, Leases (except with respect to any tenant CAM audit of years
prior to 2004), Licenses and Personal Property as provided in Section 2.01(b);
(e) An assumption of any and all liabilities and obligations not
otherwise assumed by Purchaser in accordance with any of the other documents
hereinabove provided, relating to any liabilities or obligations relating to the
Property for which Purchaser has elected to accept and has received a proration
credit from Seller;
(f) Evidence satisfactory to the Title Insurer, with copies to
Seller, authorizing the consummation by Purchaser of the transaction
contemplated hereby and the execution and delivery of the closing documents on
behalf of Purchaser; and
(g) Purchaser's certification that all representations and
warranties of Purchaser contained in Section 11.01 are true and correct in all
material respects as of the Closing Date.
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15.04 CONCURRENT DELIVERIES. Seller and Purchaser shall jointly deposit in
the Escrow or deliver to each other at closing:
(a) An agreed proration statement duly executed by the respective
parties;
(b) The Access and Escrow Agreement, as contemplated in
Section 10.01(h);
(c) At closing, Seller and Purchaser will enter into a mutually
acceptable escrow agreement with the Escrowee, in a form to be negotiated by the
parties and attached hereto as EXHIBIT H prior to the expiration of the
Inspection Period, into which escrow Seller will deposit out of the Purchase
Price proceeds in an amount equal to any leasing commissions set forth on
EXHIBIT I that have not been paid as of the Closing Date; and
(d) Such other mutually acceptable documents as may be reasonably
necessary or desirable to consummate the transaction contemplated by this
Agreement; it being understood however that neither party shall be obligated to
undertake any expanded or additional liability or obligation under any such
additional closing documentation beyond the express liabilities and obligations
undertaken by such party in accordance with this Agreement.
15.05 NEW YORK STYLE CLOSING. The transaction shall be closed by means
of a so-called New York Style Closing, with the concurrent delivery of the
documents of title, transfer of interests, delivery of the owner's title policy
and the disbursement to Seller of the Purchase Price. Seller shall provide any
undertaking (the "Gap Undertaking") to the Title Insurer necessary to the New
York Style Closing provided the Gap Undertaking will not cover encumbrances and
title defects created by or through Purchaser or any tenants under Leases.
Seller and Purchaser shall each pay 50% of the charges of the Title Insurer for
such New York Style Closing.
ARTICLE XVI
DEFAULT
16.01 DEFAULT.
(a) If Purchaser is not then in default in its obligations or
agreements hereunder and Seller shall have failed to perform any of the
covenants or agreements contained in this Agreement which are to be performed by
Seller, Purchaser may, at its option, as Purchaser's sole and exclusive remedy
either (i) terminate this Agreement by giving notice of termination to Seller
whereupon the Deposit, and all interest earned thereon, shall be promptly
returned to Purchaser and Seller shall reimburse Purchaser for any out-of-pocket
fees, costs and expenses actually incurred by Purchaser and paid in arm's length
transactions by Purchaser to third parties unafilliated with Purchaser in
connection with the performance of Purchaser's due diligence review of the
Property up to a maximum aggregate reimbursement amount of One Hundred Thousand
and No/100 Dollars ($100,000), or (ii) seek specific performance of this
Agreement. Except for Purchaser's right to recover its out-of-pocket fees, costs
and expenses in accordance with clause (i) above, Purchaser expressly waives all
rights at law or in equity to seek monetary damages (including without
limitation any and all consequential, speculative and punitive damages) for any
default by Seller hereunder; provided, however, if the Closing occurs,
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subject to the provisions of Sections 12.02 and 20.03 hereof, such waiver shall
not apply to damages to which Purchaser may be entitled hereunder by reason of
any breach by Seller of any of its representations or warranties hereunder which
survive the closing; provided, further, that notwithstanding the foregoing,
Purchaser shall not be deemed to have waived and shall be entitled to recover
attorneys' fees and costs pursuant to Section 20.06 in connection with any
specific performance action.
(b) In the event this Agreement is terminated by Seller due to a
default of Purchaser, Seller and Purchaser agree that actual damages will be
difficult to ascertain and Seller, as Seller's sole and exclusive remedy for
such default, shall receive and retain the entire Deposit as full and complete
liquidated damages (and not as a penalty or forfeiture).
(c) Neither Seller nor Purchaser shall avail itself of any remedy
granted to it hereunder based upon an alleged default of the other party, unless
and until written notice of the alleged default, in reasonable detail, has been
delivered to the defaulting party by the non-defaulting party and the alleged
default has not been cured on or before 5:00 P.M., Chicago time, on the third
(3rd) business day next following delivery of said notice of default.
ARTICLE XVII
DEED FULL PERFORMANCE
17.01 DEED FULL PERFORMANCE. The acceptance of the Deed and other closing
documents by Purchaser from Seller shall be deemed full performance on the part
of Seller of all of its obligations under this Agreement which are to be
performed on or prior to the Closing, except as to any such obligation which is
specifically stated in this Agreement to survive the Closing or is expressly
contained in documents delivered at Closing and stated therein to survive the
Closing, including, without limitation, Seller's indemnification obligations
under Section 19.01. Except when otherwise expressly provided in this Agreement,
none of the provisions of this Agreement shall survive the Closing.
ARTICLE XVIII
NOTICES
18.01 NOTICES. Any notice, demand or other communication which any party
may desire or may be required to give to any other party shall be in writing and
shall be deemed given (i) if and when personally delivered, or (ii) upon receipt
if sent by a nationally recognized overnight courier addressed to a party at its
address set forth below or to such other address as the party to receive such
notice may have designated to all other parties by notice in accordance
herewith:
If to Seller, to: ORIX Touchstone Seattle Venture
c/o ORIX Real Estate Equities, Inc.
100 North Riverside Plaza, Suite 1400
Chicago, Illinois 60606
Attention: David R. Brown
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With a copy to: Neal, Gerber & Eisenberg LLP
Two North LaSalle Street, Suite 2200
Chicago, Illinois 60602
Attention: Irwin I. Gzesh, Esq.
If to Purchaser, to: Inland Real Estate Acquisition, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: G. Joseph Cosenza
With a copy to: The Inland Real Estate Group, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Attention: Gary Pechter, Esq.
ARTICLE XIX
INDEMNIFICATION
19.01 INDEMNIFICATION.
(a) Seller shall indemnify, defend and hold Purchaser harmless
against, and reimburse Purchaser on demand for, any and all obligations,
liabilities, claims, costs or expenses, including reasonable attorneys' fees,
incurred by Purchaser (whether the claim therefor or proceeding relating thereto
is made or commenced prior to or after the Closing Date):
(i) that arise by reason of any default by Seller which
occurred prior to the Closing Date in Seller's performance of Seller's
obligations which were required to be performed prior to the Closing Date under
any Lease, Contract, License or Personal Property right assumed by Purchaser,
and with respect to which matter a credit was not given to Purchaser at the
closing or that arise by reason of any CAM audit by a tenant with respect to any
year prior to 2004;
(ii) as a result of any mechanics or materialmen's liens
that arise by reason of any activity taking place prior to the Closing Date
(other than obligations that are properly the obligations of the tenants under
the Leases or of any other third party) unless such lien results from
Purchaser's or Purchaser's Representatives' activities on the Property; it being
agreed however that such indemnity shall not apply to the extent that the Title
Insurer shall have honored its obligation to insure Purchaser against loss and
damage, including attorneys' fees and costs, for such matter under the title
insurance policies that are to be issued pursuant to Section 15.05. Purchaser
agrees to make and diligently prosecute a claim against the Title Insurer for
such loss or damage;
(iii) as a result of any claim of personal injury or property
damage by any third party relating to any injury or damage suffered on the Real
Property by any third party before the Closing Date except to the extent that
any tenant or insurer is liable for and protects Purchaser against the same;
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(iv) that arise under or on account of Seller's agreement
with any property manager with respect to the operation and management of the
Property prior to closing;
(v) that arise by reason of any warranty claim made by a
tenant of the Building under its Lease for defects in new construction work
which Seller has warranted against under the terms of said tenant's Lease;
provided, however, Purchaser first pursues a claim against any contractors' or
manufacturers' warranty covering such defect that Seller has assigned to
Purchaser; and provided, further, however, Seller's obligation to indemnify
Purchaser shall terminate and be of no further force or effect, unless Purchaser
notifies Seller of the alleged claim on or before the earlier to occur of (i)
one (1) year from the date the improvements so warranted under said tenant's
Lease have been completed or, (ii) the stated expiration of Seller's warranty
obligations under said tenant's Lease. If Seller is required to perform pursuant
to its indemnity of Purchaser under this subparagraph 19.01(a)(v), Purchaser
agrees to reassign to Seller any third-party contractors' or manufacturers'
warranty covering such defect and that Seller shall be subrogated to any and all
rights and remedies Purchaser has against such third-party contractor or
manufacturer; and
(vi) that arise by reason of any default by Seller in
Seller's performance of Seller's obligations under Section 10.01(h) hereof.
(b) Purchaser shall indemnify, defend and hold Seller harmless,
and reimburse Seller on demand for, any and all obligations, liabilities,
claims, costs or expenses, including reasonable attorneys' fees incurred by
Seller:
(i) that arise by reason of anything (other than the making
of a claim or the commencement of a proceeding relating to any default by Seller
that occurred prior to the closing for which Seller is liable pursuant to
Section 19.01(a)(i) above) which occurs from and after the Closing Date under or
in connection with any Contract, License, Personal Property right or Lease
assumed by Purchaser and with respect to which matter a credit was not given to
Seller at the closing;
(ii) that relate to any mechanics or materialmen's liens
arising before the Closing Date as a result of Purchaser's or its
representatives' activities on the Property and arising from and after the
Closing Date unless such lien relates to Seller's or its representatives'
activities on the Property;
(iii) that relate to any claim of personal injury or property
damage by any third party relating to any injury or damage suffered on the Real
Property by any third party from and after the Closing Date except to the extent
that any tenant or insurer is liable for and protects Seller against the same;
and
(iv) that arise under or on account of any management
agreement entered into by Purchaser with respect to the operation and management
of the Property from and after the Closing Date.
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<Page>
ARTICLE XX
GENERAL
20.01 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement contains
the entire agreement and understanding of the parties in respect to the subject
matter hereof, and the same may not be amended, modified or discharged nor may
any of its terms be waived, except by an instrument in writing signed by the
party to be bound thereby. The waiver of any term or provision of this Agreement
shall not constitute a waiver of any other term or provision of this Agreement,
nor shall the right to require any enforcement of any term or provision of this
Agreement be permanently waived, if a continuing breach of any such term or
provision arises.
20.02 FURTHER ASSURANCES. The parties each agree to do, execute,
acknowledge and deliver all such further acts, instruments and assurances and to
take all such further action before or after the closing as shall be necessary
or desirable to perform this Agreement and consummate and effect the
transactions contemplated hereby.
20.03 SURVIVAL; BASKET AND CAP. Except as otherwise expressly provided in
this Agreement, and except with respect to the matters described in Article XIX,
the representations and warranties made by Seller and Purchaser in this
Agreement shall survive the closing solely with respect to those matters for
which a notice of an alleged breach, default or claim is given by Purchaser or
Seller to the other party within a period of six (6) months after the Closing
Date (the "Survival Period"). No claim for a breach of any representation or
warranty of Seller or Purchaser shall be actionable or payable (a) unless and
until the valid claims for all such breaches collectively aggregate more than
Ten Thousand and No/100 Dollars ($10,000), and (b) unless written notice
containing a description of the specific nature of such breach shall have been
given to the other party and an action shall have been commenced prior to the
expiration of the Survival Period. In no event shall the total aggregate
liability of Seller to Purchaser for all breaches of representations and
warranties of Seller in this Agreement or in any document delivered by Seller to
Purchaser at the closing exceed the amount of Four Hundred Eighty Four Thousand
and No/100 Dollars ($484,000). Seller covenants to maintain a post-closing net
worth until the end of the Survival Period of not less than Four Hundred Eighty
Four Thousand and No/100 Dollars ($484,000) or, alternatively, to provide a
guaranty of such net worth of Seller until the end of the Survival Period from
ORIX Real Estate Equities, Inc., a Delaware corporation, in form and substance
reasonably acceptable to Purchaser.
20.04 INTERPRETATION.
(a) The headings and captions herein are inserted for convenient
reference only, and the same shall not limit or construe the paragraphs or
sections to which they apply or otherwise affect the interpretation hereof.
(b) The terms "hereby," "hereof," "hereto," "herein," "hereunder"
and any similar terms shall refer to this Agreement, and the term "hereafter"
shall mean after, and the term "heretofore" shall mean before, the date of this
Agreement.
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<Page>
(c) Words of the masculine, feminine or neuter gender shall mean
and include the correlative words of other genders, and words importing the
singular number shall mean and include the plural number and vice versa.
(d) Words importing persons shall include firms, associations,
partnerships (including limited partnerships), trusts, corporations, limited
liability companies and other legal entities, including public bodies, as well
as natural persons.
(e) The terms "include," "including" and similar terms shall be
construed as if followed by the phrase "without being limited to."
(f) This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(g) Whenever under the terms of this Agreement the time for
performance of a covenant or condition falls upon a Saturday, Sunday or holiday,
such time for performance shall be extended to the next business day. Otherwise,
all references herein to "days" shall mean calendar days.
(h) Whenever any representation or warranty of Seller is stated in
this Agreement to be "to Seller's knowledge", "to the knowledge of Seller",
"known to Seller," "to be best of Seller's knowledge" or words of like import,
such words shall mean and be strictly limited and confined to the actual
knowledge without independent inquiry or investigation of the following
individuals who are officers or employees of certain entities directly or
indirectly associated with Seller but nothing herein shall be deemed to extend
any liability or obligation of Seller under this Agreement to any such entities
or individuals: Brian Gordon, Kurt Paritz and Paul Gawley.
(i) This Agreement has been negotiated, executed and delivered
within, and shall be governed by and construed in accordance with, the laws of
the State of Illinois.
(j) Time is of the essence of this Agreement.
(k) If any provision hereof or the application of any such
provision to any particular person or circumstance is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision hereof or the application of such
provision to different person(s) or circumstance(s), as the case may be.
(l) The terms and provisions of this Agreement represent the
results of negotiations between the parties, each of which has been represented
by counsel of its own selection, and neither of which has acted under duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the parties hereby expressly waive
and disclaim in connection with the interpretation and construction of the
Agreement, any rule of law or procedure requiring otherwise, including, without
limitation, any rule of law to the effect that ambiguous or conflicting terms or
provisions contained in this
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<Page>
Agreement shall be interpreted or construed against the party whose attorney
prepared this Agreement or any earlier draft of this Agreement.
20.05 CONSENTS AND APPROVALS. Whenever consents or approvals are required
under the terms of this Agreement, said consents or approvals shall be in
writing.
20.06 ATTORNEYS' FEES. Except as otherwise expressly set forth in this
Agreement or any of the documents and instruments to be executed by the parties,
or either of them, and delivered at closing pursuant to this Agreement, the
prevailing party in any litigation or other dispute resolution process conducted
by or between the parties shall be entitled to recover, as a part of its
judgment, award or relief, reasonable attorneys' fees and the costs of such
proceeding. The obligations of Purchaser and Seller under this Section 20.06
shall survive closing.
20.07 LIMITATION ON LIABILITY. Notwithstanding anything to contrary
contained herein, (i) Seller's obligations hereunder shall not be binding upon
and resort shall not be had to, nor shall satisfaction or recourse be sought
from the assets and private property of any shareholder, officer, director or
employee of the corporate general partners of Seller; and (ii) Purchaser's
obligations hereunder shall not be binding upon and resort shall not be had to,
nor shall satisfaction or recourse be sought from the assets and private
property of any member, shareholder, officer, director or employee of Purchaser.
20.08 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions and covenants contained herein shall inure to and be binding upon the
heirs, successors and assigns of the parties hereto. However, Purchaser shall
have no right to assign any of its rights, privileges, duties or obligations
under this Agreement prior to Closing, without the prior written consent of
Seller in its sole discretion. Notwithstanding the foregoing, Purchaser shall be
permitted, without Seller's consent, to assign its rights, privileges, duties
and obligations under this Agreement to Inland Real Estate Trust, Inc., Inland
Real Estate Corporation, or any of their respective affiliates. For purposes of
this Section 20.08, "affiliate" shall mean an entity controlled by, controlling
or under common control with Purchaser where "control" shall mean the power,
directly or indirectly through one or more intermediaries, to establish the
management and policies of an entity, whether through the ownership of voting
securities, by contract or otherwise. Promptly following, and as a condition to,
any assignment by Purchaser permitted under this Section 20.08, Purchaser shall
deliver to Seller an assumption by the assignee of all of Purchaser's duties and
obligations under this Agreement. In the event Purchaser assigns its rights and
obligations under this Agreement, the liability of Purchaser shall in no way be
affected and the liability of the Purchaser for the representations, warranties
and covenants made by Purchaser herein shall continue as though no such
assignment had been made. In the event Seller assigns its rights and obligations
under this Agreement, the liability of Seller shall in no way be affected and
the liability of the Seller for the representations, warranties and covenants
made by the Seller herein shall continue as though no such assignment had been
made.
20.09 PUBLICITY. In no event shall Purchaser, on the one hand, or Seller,
on the other hand, prior to closing issue any press release or otherwise
disclose any non-public information regarding this Agreement or the purchase and
sale transaction herein contemplated
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<Page>
(the "Transaction") unless the other party has consented thereto in writing and
to the form and substance of any such statement or disclosure; provided,
however, that nothing herein shall be deemed to limit or impair in any way any
party's ability to disclose the details of or information concerning this
Agreement, the Transaction or the Property to such party's attorneys,
accountants or other advisors to the extent such party reasonably deems
necessary or desirable in connection herewith, or pursuant to any court or
governmental order or applicable securities or other laws or regulations or
financial reporting requirements, or as may be reasonably necessary in order to
obtain any third party consents or tenant estoppels necessary to consummate the
Transaction or in conjunction with any future anticipated financing of the
Property. Further, Seller may disclose any information regarding this Agreement
or the Transaction to its direct or indirect constituent partners, members or
shareholders, as the case may be (and to counsel for the same) and as otherwise
necessary to comply with the terms of this Agreement. The provisions of this
Section 20.09 shall terminate upon the closing.
20.10 NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries
to this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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<Page>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
ORIX TOUCHSTONE SEATTLE VENTURE, an
Illinois general partnership
By: ORIX Seattle II, Inc.,
its Managing General Partner
By: /s/ [ILLEGIBLE]
-------------------------------
Its: President and CEO
------------------------------
PURCHASER:
INLAND REAL ESTATE ACQUISITIONS, INC.,
an Illinois corporation
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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<Page>
LIST OF EXHIBITS:
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
SCHEDULE OF LEASES
EXHIBIT C
SCHEDULE OF LICENSES
EXHIBIT D
SCHEDULE OF CONTRACTS AND OTHER DISCLOSURES
EXHIBIT E
LITIGATION
EXHIBIT F
BASSETT TI WORK
EXHIBIT G
NOTICE OF LEASE ASSIGNMENT
EXHIBIT H
LEASING COMMISSION ESCROW AGREEMENT
EXHIBIT I
LEASING COMMISSIONS
<Page>
EXHIBIT A
LEGAL DESCRIPTION
The south 329.87 feet of the southeast quarter of the northeast quarter of the
southwest quarter of Section 29, Township 26 North, Range 4 East, W.M., in King
County, Washington;
EXCEPT the south 40 feet for Northeast Northgate Way;
AND EXCEPT the west 30 feet for 3rd Avenue Northeast;
AND EXCEPT 5th Avenue Northeast;
AND EXCEPT that portion conveyed to the City of Seattle by instrument recorded
under King County Recording Number 8110300213.
<Page>
EXHIBIT B
SCHEDULE OF LEASES
1 Lease dated July 16, 2002, between ORIX Touchstone Seattle Venture and
Qwest Wireless, LLC.
2 Lease dated ___________, 2002, between ORIX Touchstone Seattle Venture
and Levu, L.L.C. d/b/a Quizno's Classic Subs.
3 Lease dated May 3, 2001, between ORIX Touchstone Seattle Venture and GMRI,
Inc., d/b/a Olive Garden, as amended by Reinstatement and First Amendment
to Lease dated October 22, 2001 and as amended by Reinstatement and Second
Amendment to Lease dated June 5, 2002.
4 Lease dated April 1, 2003, between ORIX Touchstone Seattle Venture and Ross
Stores, Inc.
5 Lease dated October 15, 2002, between ORIX Touchstone Seattle Venture and
G.I. Joe's, Inc. as amended by First Amendment to Lease dated July 16,
2003.
6 Lease dated August 2, 1999, between ORIX Touchstone Seattle Venture and
Best Buy Stores, L.P. as amended by First Amendment to Lease dated April
24, 2000 or as further amended by Second Amendment to Lease dated July
18, 2003.
7 Lease dated August 17, 1999, between ORIX Touchstone Seattle Venture and
Dayton Hudson Corporation.
8 Lease dated August 25, 1999, between ORIX Touchstone Seattle Venture and
King County (as modified by Letter dated December 3, 2001).
9 Building and Rooftop Lease Agreement, dated July 1, 2003, between ORIX
Touchstone Seattle Venture and Seattle SMSA Limited Partnership d/b/a
Verizon Wireless.
10 Lease between ORIX Touchstone Seattle Venture and BDF Northwest, Inc.,
dated April 21, 2004.
<Page>
EXHIBIT C
SCHEDULE OF LICENSES
None.
<Page>
EXHIBIT D
CONTRACTS AND OTHER DISCLOSURES*
<Table>
<Caption>
Contract Date Vendor Service
- -------------------------------------------------------------------------------------------------
5/20/2003 Superior Parking Services, Inc. Parking lot sweeping
Parking lot pressure washing
5/1/2003 Sprague Pest Solutions Pest control
12/12/2002 Simplex Grinnell LP Annual Fire Alarm and
Suppression Detection
Systems Testing
2/4/2002 Simplex Grinnell LP Alarm Monitoring
12/11/2002 Schindler Elevator Elevator/Escalator
Corporation Maintenance
3/1/04-2/28/05 Initial Tropical Plant Landscape maintenance
5/23/2003 Holaday-Parks, Inc. HVAC maintenance
5/23/2003 Barton Protective Services Security Services
Incorporated
4/3/2003 Allstar Building Service Janitorial/Day porter service
6/19/2003
6/1/03-5/31/04 Goodbye Graffiti
</Table>
<Page>
EXHIBIT E
LITIGATION
1. Claim by Manijak Shahali that she was injured when an elevator door closed
on her right arm. Claim has been referred by Seller's insurance carrier to
Schhidler Elevator Corporation's insurance carrier consistent with provisions of
relevant elevator maintenance contract.
<Page>
EXHIBIT F
BASSETT TI WORK
Seller to perform certain tenant improvement work pursuant to the terms and
conditions of Section 3 of the Bassett Lease and the Work Letter attached to the
Bassett Lease (such work being identified thereon as "Landlord's Work" and
"Landlord Constructed Tenant Improvements"), including without limitation
completing punch list work related thereto in accordance with the terms of the
Bassett Lease, it being understood that the Bassett TI Work includes all work
required to be performed by the landlord under the Bassett Lease as a condition
to the commencement of the term of the Bassett Lease on the "Commencement Date"
(as defined in the Bassett Lease).
<Page>
EXHIBIT G
NOTICE OF LEASE ASSIGNMENT
NOTICE TO ALL TENANTS OF
NORTHGATE NORTH SHOPPING CENTER
_______ ___, 2003
Ladies and Gentlemen:
Please be advised that _____________. ("New Owner") whose address is 2901
Butterfield Road, Oak Brook, Illinois 60523, has today purchased certain
property located in Seattle, Washington, and commonly known as Northgate North
Shopping Center (the "Property") from ORIX Touchstone Seattle Venture ("Prior
Owner"). In connection with the sale, Prior Owner has transferred its interest
in your lease of a portion of the Property to New Owner.
As in the past, your rental payment is due on the first of each month, but,
hereafter, all checks should be made payable to New Owner.
All future rent checks, inquiries regarding the Property, and notices
should be sent to New Owner at the following address:
-------------------------------
Attn:
--------------------------
2901 Butterfield Road
Oak Brook, Illinois 60523
It will be necessary that you immediately delete Prior Owner under your
casualty and public liability insurance policies as of this date and substitute
New Owner as such insured as of this date. Please promptly forward evidence of
your insurance coverages and the aforesaid changes to New Owner at the address
set forth above.
If you have any questions, please do not hesitate to call or write the New
Owner at the address set forth above.
Very truly yours,
ORIX Touchstone Seattle Venture,
an Illinois general partnership
By: ORIX Seattle II, Inc., its Managing General
Partner
By:
------------------------------
Its:
-----------------------------
<Page>
EXHIBIT H
LEASING COMMISSION ESCROW AGREEMENT
TO BE ATTACHED*
[*The parties agree to reasonably cooperate with one another in order to
complete, approve, agree upon and attach Exhibit H prior to the expiration of
the Inspection Period.]
<Page>
EXHIBIT I
LEASING COMMISSIONS
$46,233 payable to CB Richard Ellis (Susie Detmer and Krista Haverly) as
follows: one-half upon delivery of the executed Lease between Seller and BDF to
Seller and one-half upon BDF commencing to pay rent under such Lease.
$46,233 payable to Neil Walter Company (Michael Olsen) as follows: one-half upon
delivery of the executed Lease between Seller and BDF to Seller and one-half
upon BDF's commencing to pay rent under such Lease.
Any portion of the foregoing not paid by Seller at or prior to Closing (Seller
to deliver to purchaser evidence of any amounts paid prior to Closing) shall be
placed in escrow with Escrowee (at its Chicago, Illinois office) to be released
upon the occurrence of the conditions to payment set forth above.
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