Post Closing Agreement
This Agreement made 3rd day of March, 2004 between Kimco Barclay Crossing,
L.P. ("Kimco") and Inland Western Glendale, L.L.C. ("Inland")
A. Pursuant to the Agreement of Sale, dated January 2004, as amended
Kimco is selling and transferring to Inland the Property described on
B. Kimco is a party [as successor by Assignment and Assumption dated
January 2004, between Kimco and Barclay Holdings XVI, L.L.C., ("Barclay")] to
that certain Second Amended and Restated Development Agreement dated as of
January 2, 2001 between Barclay and the City of Peoria (the "City") (the
"Development Agreement") which is recorded against and effects the Property.
C. Notwithstanding the transfer of a portion of Property covered by the
Development Agreement from Kimco to Inland the parties desire to clarify that
certain benefits and responsibilities set forth in the Development Agreement
shall remain with Kimco, including the right of Kimco to receive from the City
the maximum sum of Two Hundred Thousand and no/100 Dollars ($200,000.00) as and
for development cost reimbursement (the "Reimbursement").
D. A portion of the property Inland is acquiring is subject to that
certain Agreement dated January 13, 1999 and recorded February 5, 1999 as
Document No. 99-0117577 (the "99 Agreement").
E. Kimco has been negotiating with El Khazen Enterprises, L.L.C.
("Khazen") the owner of the adjacent property to the Property which is subject
to the 99 Agreement, to enter into a final Grant of Easement as contemplated by
such Agreement. The Grant of Easement would provide among other things, for the
reimbursement by Khazen of a portion of Kimco's costs of construction of the
driveway over which Khazen would have an easement and to establish for Khazen's
payments and contributions for the ongoing maintenance of the driveway.
Therefore, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. INCORPORATION OF RECITALS. The recitals are true and correct and are
incorporated by reference.
2. With respect to the Development Agreement, the Parties hereby confirm
and agree that: (i) Kimco shall be entitled to and hereby retains all rights to
the Reimbursement (whatever form it may take) as contemplated therein for
Developer Parcel as defined therein; and (ii) Kimco has received to-date the sum
of Twenty-five Thousand Seven Hundred Seventy-nine and 37/100 Dollars
($25,779.37) from the City against the total sum due and owing for the
Reimbursement; and (iii) Kimco shall retain the responsibilities under the terms
of the Development which are prerequisites to payment of the Reimbursement by
3. Kimco (subject to Inland's commercially reasonable approval and
cooperation) shall hereinafter complete negotiations concerning the Grant of
Easement contemplated by the 99 Agreement. It is expected that Khazen would
reimburse Kimco in the approximate sum of Sixty-eight Thousand and no/100
($68,000.00) as and for Khazen's share of the initial construction costs of the
entry drive servicing the Khazen property; and that Khazen would agree to a
yearly charge (payable to Inland) as and for roadway maintenance.
IN WITNESS WHEREOF, the Parties caused this Agreement to be executed by its
duly authorized representative as of the day and year first above written.
Kimco Barclay Peoria Crossings, L.P.
an Arizona limited partnership