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Exhibit 10.204
ACCESS AGREEMENT
THIS ACCESS AGREEMENT (this "AGREEMENT") is dated as of June 30, 2004, by
and between ORIX TOUCHSTONE SEATTLE VENTURE, an Illinois general partnership
("SELLER"), and INLAND WESTERN SEATTLE NORTHGATE NORTH, L.L.C., a Delaware
limited liability company ("PURCHASER").
WITNESSETH:
WHEREAS, Seller and Inland Real Estate Acquisitions, Inc., an Illinois
corporation ("Inland"), entered into that certain Agreement of Purchase and Sale
effective as of June 4, 2004, as the same has heretofore been amended by letter
agreement dated June 18, 2004, Amendment to Agreement of Purchase and Sale dated
June 21, 2004, and Second Amendment to Agreement of Purchase and Sale dated June
23, 2004 (as so amended, the "SALE AGREEMENT"), for the purchase and sale of
certain real property located in Seattle, Washington, as more particularly
described therein (the "PROPERTY").
WHEREAS, Inland has assigned all of its right, title and interest in, to
and under the Sale Agreement to Purchaser.
WHEREAS, the Sale Agreement provides that, at the closing under the Sale
Agreement, Purchaser and Seller shall execute a written access agreement
pursuant to which Purchaser shall grant to Seller access to the Property for the
purpose of completing the Bassett TI Work (as defined in the Sale Agreement).
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms not otherwise defined therein shall
have the meanings set forth in the Sale Agreement.
2. GRANT OF ACCESS. Purchaser hereby grants to Seller access to the
Property for the purpose of completing the Bassett TI Work in accordance with
the TI Work Documents and this Agreement. Such access shall be during normal
business hours (and such other hours to which Purchaser may hereafter consent,
such consent not to be unreasonably withheld), and shall be limited to that
portion of the Property covered by the Bassett Lease and such other portions of
the Property necessary or desirable to access that portion of the Property
covered by the Bassett Lease. In utilizing such access, Seller shall use (and
shall cause its contractors to use) commercially reasonable efforts to avoid (a)
interfering with the operations of any other tenant at the Property and (b)
blocking any common areas.
3. THE BASSETT TI WORK. Seller shall, at its sole cost and expense,
timely 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.
Concurrently with the execution hereof, Seller, Purchaser and First American
Title Insurance Company (as escrowee) are entering into that certain Escrow
Agreement of even date herewith (the "Escrow Agreement"), pursuant to which
Seller has deposited certain amounts with respect to the anticipated costs of
the Bassett TI Work. Seller acknowledges that in the event the cost of the
Bassett TI Work exceeds the
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amounts deposited under the Escrow Agreement, Seller shall be solely responsible
for, and shall pay, such additional costs.
4. INDEMNIFICATION. Seller hereby indemnifies Purchaser, its lenders and
their respective successors and assigns (individually, an "Indemnified Party")
against any loss, cost or expense that arises by reason of (a) any default by
Seller in Seller's performance of Seller's obligations hereunder (including any
failure to timely complete the Bassett TI Work), (b) any default by Seller in
Seller's performance of Seller's obligations under Section 10.01(h) of the Sale
Agreement, (c) any mechanics or materialmen's liens that arise by reason of the
Bassett TI Work, and (d) any claim of personal injury or property damage
relating to any injury or damage suffered on the Property as a result of the
performance of the Bassett TI Work. Notwithstanding the foregoing, (i) Seller
shall not indemnify any Indemnified Party to the extent that any loss, cost or
expense arises due to the gross negligence or willful acts or omissions of the
Indemnified Party, and (ii) the indemnifications set forth in clauses (a) and
(b), above, to the extent the same relate to those matters set forth in Section
1 of that certain Second Amendment to Agreement of Purchase and Sale dated June
23, 2004 (the "Second Amendment"), shall be limited by the cap set forth in
Section 1 of the Second Amendment.
5. INSURANCE. Seller shall deliver or cause its contractor(s) to deliver
to Purchaser certificates of insurance issued by reputable insurers having a
rating of at least "A-IX" 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) and
not less than One Million Dollars ($1,000,000) per occurrence for property
damage.
6. ASSIGNMENT OF WARRANTIES. Following completion of the Bassett TI Work,
Seller shall assign to Purchaser all third party construction warranties and
guarantees received by Seller with respect to the Bassett TI Work, to the extent
assignable. In the event the same are not assignable, Seller hereby agrees to
enforce such warranties and guarantees on Purchaser's behalf.
7. TERM. The term of this Agreement (the "TERM") shall commence on the
date hereof and shall terminate on the date that Seller delivers to Purchaser
written notification that the Bassett TI Work has been completed.
8. PREVAILING PARTY ATTORNEY'S FEES. The prevailing party in any
litigation or other dispute resolution process conducted by or between the
parties with respect to this Agreement shall be entitled to recover, as a part
of its judgment, award or relief, reasonable attorneys' fees and the costs of
such proceeding.
9. MISCELLANEOUS. This Agreement and the obligations of the parties
hereunder shall survive the closing of the transaction referred to in the Sale
Agreement, shall be binding upon and inure to the benefit of the parties hereto,
their respective legal representatives, successors and assigns, shall be
governed by and construed in accordance with the laws of the State of Illinois
applicable to agreements made and to be wholly performed within said State and
may not be modified or amended in any manner other than by a written agreement
signed by the party to be charged therewith.
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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/ David R. Brown
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Its: David R. Brown
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President
PURCHASER:
INLAND WESTERN SEATTLE NORTHGATE NORTH,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Valerie Medina
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Name: Valerie Medina
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Title: Assistant Secretary
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JOINDER
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned, an affiliate of Seller, hereby joins
in the execution of this Agreement for the purpose of guaranteeing to Purchaser
Seller's obligations hereunder.
ORIX REAL ESTATE EQUITIES, INC., a
Delaware corporation
By: /s/ David R. Brown
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Name: David R. Brown
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Title: President & CEO
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