FULL AT CLOSING (HEREINAFTER DEFINED) IN CASH BY WIRE TRANSFER OF IMMEDIATELY
AVAILABLE FEDERAL FUNDS TO A BANK ACCOUNT DESIGNATED BY SELLER IN WRITING TO
PURCHASER PRIOR TO THE CLOSING.
1.4
Deposit Concurrently with Purchaser's execution and delivery of
this Agreement, Purchaser has deposited with LandAmerica National Commercial
Services (the "Escrow Agent"), having its office at 10 S LaSalle Street,
Suite 2500, Chicago, IL
60603 Attention: Tom Seifert, telephone: (312)
553-6920, email: :
(i) a letter of credit, in form and
substance, and issued by a financial institution reasonably acceptable to Seller
and payable to the Escrow Agent (an "Acceptable Letter of Credit") or
(ii) immediately available funds, in each case, in the amount of Ten Million
Dollars ($10,000,000.00) (the "Earnest Money"). The Escrow Agent shall hold an
Acceptable Letter of Credit or the Earnest Money and all interest earned thereon
(collectively, the "Deposit") in accordance with the terms and conditions of
this Agreement and an escrow agreement substantially in the form of Exhibit 1.4
attached hereto (the "Escrow Agreement") entered into simultaneously with the
execution of this Agreement. Any interest earned on the Earnest Money shall be
reported as income of the Purchaser.
1.5
EXISTING INDEBTEDNESS. AS MORE FULLY SET FORTH ON SCHEDULE 5.2.8,
THE PROPERTY IS SUBJECT TO CERTAIN EXISTING INDEBTEDNESS, WHICH IS SECURED BY,
INTER ALIA, A FIRST MORTGAGE OR DEED OF TRUST ON THE PROPERTY (THE "EXISTING
INDEBTEDNESS"). PURCHASER, AT ITS ELECTION, SUCH ELECTION TO BE DELIVERED IN
WRITING TO SELLER NO LATER THAN THAT DATE WHICH IS FIVE (5) BUSINESS DAYS AFTER
THE EFFECTIVE DATE, SHALL HAVE THE RIGHT TO SEEK THE CONSENT OF THE HOLDER OF
THE EXISTING INDEBTEDNESS TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
WITHOUT CAUSING AN ACCELERATION OF THE EXISTING INDEBTEDNESS (THE "CONSENT").
SELLER AND PURCHASER SHALL COOPERATE IN GOOD FAITH AND SHALL USE REASONABLE
EFFORTS TO ASSIST IN OBTAINING THE CONSENT; PROVIDED, HOWEVER, THAT SELLER SHALL
NOT BE REQUIRED TO INCUR ANY OUT-OF-POCKET COSTS OR EXPENSES IN CONNECTION
THEREWITH.
IF PURCHASER ELECTS NOT TO OBTAIN OR IS UNABLE TO OBTAIN THE CONSENT
ON OR BEFORE APRIL 21, 2006, PURSUANT TO DOCUMENTATION REASONABLY ACCEPTABLE TO
PURCHASER AND SELLER, INCLUDING, WITHOUT
7
LIMITATION, ESTOPPEL PROVISIONS REASONABLY ACCEPTABLE TO PURCHASER AND RELEASES
OF EXISTING GUARANTIES AND INDEMNITIES FROM SELLER AND ITS AFFILIATES IN FORM
REASONABLY ACCEPTABLE TO SELLER (THE "LOAN DOCUMENTS"), THEN, IF THE CLOSING
OCCURS, SELLER SHALL CAUSE THE TRUST TO PAY AT CLOSING THE THEN OUTSTANDING
PRINCIPAL BALANCE AND ALL OTHER SUMS DUE AND PAYABLE IN CONNECTION WITH THE
EXISTING INDEBTEDNESS, INCLUDING, WITHOUT LIMITATION, ANY PREPAYMENT PENALTY
THAT MAY BE DUE THEREUNDER. IF PURCHASER ELECTS TO OBTAIN AND DOES OBTAIN THE
CONSENT, AT CLOSING, PURCHASER SHALL BE ENTITLED TO DEDUCT FROM THE PURCHASE
PRICE OTHERWISE PAYABLE HEREUNDER, THE THEN-OUTSTANDING PRINCIPAL BALANCE AND
OTHER SUMS DUE AND PAYABLE IN CONNECTION WITH THE EXISTING INDEBTEDNESS,
INCLUDING ANY TRANSFER FEES, ASSUMPTION FEES, AND POINTS ON ADDITIONAL LOAN
PROCEEDS, NOT TO EXCEED THE AMOUNT SELLER WOULD OTHERWISE BE OBLIGATED TO PAY AS
A PREPAYMENT