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12 <br /> AGREEMENT TO WAIVE RIGHT OF FIRST OFFER AND OPTION <br /> THIS AGREEMENT TO WAIVE RIGHT OF FIRST OFFER AND OPTION (this <br /> "Agreement") is entered into by and between ECLIPSE PROPERTIES, LLC, a limited <br /> liability company under the laws of the State of Washington ("Eclipse") and THE CITY OF <br /> EVERETT, a municipal corporation under the laws of the State of Washington (the "City") <br /> RECITALS <br /> A. Eclipse and the City entered into an Amended and Restated Real Estate Purchase <br /> and Sale Agreement dated May 21, 2004 (the "Amended and Restated Agreement") which <br /> contained, at Section 1A.3, a right of first offer (the "Right Of First Offer") requiring Eclipse <br /> to first offer the opportunity to the City to purchase certain property that was contiguous to the <br /> property that was the subject of the Amended and Restated Agreement which the City closed <br /> on and purchased from Eclipse and, at Section 1A.4, an option in favor of the City to compel <br /> a sale of that same property (the "City Option"). That property to which the Right of First <br /> Offer and City Option applies is legally described in the Amended and Restated Agreement <br /> and defined as the "Unincluded Property"; the Unincluded Property is legally described in <br /> Exhibit A attached hereto and incorporated herein by this reference, as well. <br /> B. Eclipse has requested that the City waive its Right of First Offer and City Option <br /> contained in the Amended and Restated Agreement and the City is willing to do so upon the <br /> terms and conditions set forth in this Agreement, which such terms and conditions are <br /> acceptable to Eclipse. <br /> AGREEMENT <br /> FOR GOOD AND VALUABLE CONSIDERATION the receipt and sufficiency of <br /> which are hereby acknowledged, the parties agree as follows: <br /> 1. Waiver of Right of First Offer. The City, subject to the terms and conditions <br /> set forth herein, hereby permanently waives the Right of First Offer which it was granted in <br /> Section IA.3 of the Amended and Restated Agreement and the City Option which it was <br /> granted in Section 1A.4 of the Amended and Restated Agreement. <br /> 2. Terms and Conditions of City's Waiver. The foregoing waiver of the Right of <br /> First Offer is subject to, and shall be effective upon, satisfaction of the following conditions: <br /> a. Eclipse shall execute, and record with the Snohomish County Auditor, a <br /> Covenant in the form attached hereto as Exhibit B, by which Eclipse shall <br /> irrevocably commit Eclipse to cause the Unincluded Property to be brought <br /> within the Riverfront Planned Development Overlay, and a conformed copy of <br /> the recorded Covenant shall be provided to the City after its recordation. <br /> 34 <br />