Exhibit 10.27


 


SECOND AMENDMENT TO AGREEMENT OF CONTRIBUTION


 


THIS SECOND AMENDMENT TO AGREEMENT OF
CONTRIBUTION (this “Amendment”) is
made and entered into as of the 29th day of December, 2005, by and between Columbia-Hyde Group, L.L.C., a
New York limited liability company (“Seller”), and
Inland American Hyde Park Member, L.L.C., a Delaware limited liability company
(“Buyer”).


 


W I T N E S S E T H:


 


WHEREAS, Seller and Buyer
entered into that certain Agreement of Contribution dated as of this 28th
day of November, 2005, as previously amended (the “Agreement”),
with regard to certain improved real property commonly known as Stop & Shop
Plaza, located in Hyde Park, Dutchess County, State of New York.


 


WHEREAS, Buyer and Seller
have mutually agreed to amend certain provisions of the Agreement.


 


NOW THEREFORE, in consideration of
the foregoing, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:


 


1.               Section 2.1(b) of the
Agreement is modified to provide that the Due Diligence Period is extended
through 5:00 P.M. Eastern Standard Time on January 6, 2006.


 


2.               Section 3.1 of the
Agreement is modified to provide that the Closing Date is extended through 5:00
P.M. Eastern Standard Time on January 6, 2006.


 


3.               This Amendment may be
executed in one or more counterparts, each of which shall constitute an
original and all of which taken together shall constitute one Amendment. Each
person executing this Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she has executed
this Amendment. Any counterpart to this Amendment may be executed and transmitted
either by facsimile or scanned (pdf) copy and shall be binding on the parties.


 


4.               The remaining terms
and conditions of the Agreement remain unmodified and in full force and effect.


 


(Signatures
on following page)


 


1





















 


	
   

  	
  SELLER:

  
	
   

  	
  COLUMBIA-HYDE GROUP, L.L.C.,

  
	
   

  	
  a
  New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  BVS Hyde, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Aaron E. Rosakowski

  	
   

  	
   

  
	
   

  	
  Name:

  	
    Aaron E. Rosakowski

  	
   

  	
   

  
	
   

  	
  Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUYER:

  Inland American Hyde Park Member,

  L.L.C., a Delaware limited
  liability

  company

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  Inland American Hyde Park Member II,

  L.L.C., a Delaware limited liability company

  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:     Inland
  American Real Estate

  Trust, Inc., a Maryland corporation

  Its:     Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
										



 


2





















 


FIRST AMENDMENT TO AGREEMENT OF CONTRIBUTION


 


THIS FIRST AMENDMENT TO AGREEMENT OF
CONTRIBUTION (this “Amendment”) is
made and entered into as of the 13 day of December, 2005, by and between
Columbia-Hyde Group, L.L.C., a New York limited liability company (“Seller”), and Inland American Hyde Park Member, L.L.C., a
Delaware limited liability company (“Buyer”).


 


W I T N E S S E T H:


 


WHEREAS, Seller and Buyer
entered into that certain Agreement of Contribution dated as of this 28th
day of November, 2005 (the “Agreement”),
with regard to certain improved real property commonly known as Stop & Shop
Plaza, located in Hyde Park, Dutchess County, State of New York.


 


WHEREAS, Buyer and Seller
have mutually agreed to amend certain provisions of the Agreement.


 


NOW THEREFORE, in consideration of
the foregoing, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Buyer and Seller agree as follows:


 


1.               Section 2.1(b) of the
Agreement is modified to provide that the Due Diligence Period is extended
through 5:00 P.M. Eastern Standard Time on December 30, 2005.


 


2.               Section 3.1 of the
Agreement is modified to provide that the Closing Date is extended through 5:00
P.M. Eastern Standard Time on December 30, 2005.


 


3.               This Amendment may be
executed in one or more counterparts, each of which shall constitute an
original and all of which taken together shall constitute one Amendment. Each
person executing this Amendment represents that such person has full authority
and legal power to do so and bind the party on whose behalf he or she has executed
this Amendment. Any counterpart to this Amendment may be executed and transmitted
either by facsimile or scanned (pdf) copy and shall be binding on the parties.


 


4.               The remaining terms
and conditions of the Agreement remain unmodified and in full force and effect.


 


(Signatures
on following page)


 


2





















 


	
   

  	
  SELLER:

  
	
   

  	
  COLUMBIA-HYDE GROUP, L.L.C.,

  
	
   

  	
  a
  New York limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  BVS Hyde, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Arthur W. Hooper, Jr.

  	
   

  	
   

  
	
   

  	
  Name:

  	
    Arthur W. Hooper, Jr.

  	
   

  	
   

  
	
   

  	
  Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BUYER:

  Inland American Hyde Park Member,

  L.L.C., a Delaware limited
  liability company

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  Inland American Hyde Park Member II,

  L.L.C., a Delaware limited liability company

  Its: Managing Member

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:     Inland
  American Real Estate

  Trust, Inc., a Maryland corporation

  Its:     Sole Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ G. Joseph Cosenza

  	
   

  
										



 


2





















 


AGREEMENT OF CONTRIBUTION


 


 


BY AND BETWEEN


 


 


COLUMBIA-HYDE GROUP, L.L.C. 


 


and


 


 


INLAND AMERICAN HYDE PARK MEMBER, L.L.C.


 


 


DATED AS
OF November 28, 2005


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page No.

  
	
  ARTICLE 1 - Contribution

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Covenant
  to Contribute

  	
  1

  
	
  1.2

  	
  Contribution;
  Escrow Agent

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 - Title and Condition of
  Property; Financing

  	
   

  
	
   

  	
   

  
	
  2.1

  	
  State of Title

  	
  5

  
	
  2.2

  	
  Investigations;
  No Reliance on Documents; As-Is Sale

  	
  6

  
	
  2.3

  	
  Due
  Diligence Period

  	
  10

  
	
  2.4

  	
  Inland’s
  Right to Terminate

  	
  10

  
	
  2.5

  	
  Prepayment
  of Existing Loans; Assumption of Existing F Property Loan

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 - The Closing

  	
   

  
	
   

  	
   

  
	
  3.1

  	
  Time and Place

  	
  12

  
	
  3.2

  	
  Closing

  	
  12

  
	
  3.3

  	
  Delivery
  of Possession

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 - Apportionments and
  Allocation of Expenses

  	
   

  
	
   

  	
   

  
	
  4.1

  	
  Credits
  and Prorations

  	
  15

  
	
  4.2

  	
  Other
  Adjustments

  	
  15

  
	
  4.3

  	
  Transaction
  and Closing Costs

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 - Representations and Warranties

  	
   

  
	
   

  	
   

  
	
  5.1

  	
  Columbia’s
  Representations and Warranties

  	
  19

  
	
  5.2

  	
  Inland’s
  Representations and Warranties

  	
  19

  
	
  5.3

  	
  Changed
  Circumstances

  	
  20

  
	
  5.4

  	
  Survival of
  Representations and Warranties

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 - Additional Agreements

  	
   

  
	
   

  	
   

  
	
  6.1

  	
  Operations
  Pending Closing

  	
  20

  
	
  6.2

  	
  Mutual
  Cooperation

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 - Risk of Loss

  	
   

  
	
   

  	
   

  
	
  7.1

  	
  Casualty

  	
  21

  
	
  7.2

  	
  Condemnation

  	
  22

  



 


i





















 


	
  ARTICLE 8 - Remedies Upon Default

  	
   

  
	
   

  	
   

  
	
  8.1

  	
  Time of Essence

  	
  23

  
	
  8.2

  	
  Default by
  Inland

  	
  23

  
	
  8.3

  	
  Default by
  Columbia

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 - Agents and Commission

  	
   

  
	
   

  	
   

  
	
  9.1

  	
  Brokers

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 - Miscellaneous

  	
   

  
	
   

  	
   

  
	
  10.1

  	
  Notices

  	
  24

  
	
  10.2

  	
  No Recording

  	
  25

  
	
  10.3

  	
  No Agency

  	
  25

  
	
  10.4

  	
  Severability

  	
  25

  
	
  10.5

  	
  Assignment
  and Succession

  	
  25

  
	
  10.6

  	
  Amendments
  and Waivers

  	
  26

  
	
  10.7

  	
  Further
  Assurances

  	
  26

  
	
  10.8

  	
  Absence of
  Third-Party Beneficiaries

  	
  26

  
	
  10.9

  	
  Governing
  Law; Jurisdiction

  	
  26

  
	
  10.10

  	
  Interpretation

  	
  26

  
	
  10.11

  	
  Entire
  Agreement

  	
  27

  
	
  10.12

  	
  Counterparts

  	
  27

  
	
  10.13

  	
  Expenses

  	
  27

  
	
  10.14

  	
  Consents

  	
  27

  
	
  10.15

  	
  Headings

  	
  27

  
	
  10.16

  	
  Waiver
  of Trial by Jury

  	
  27

  
	
  10.17

  	
  Confidentiality

  	
  27

  
	
  10.18

  	
  Drafts
  not an Offer to Enter into a Legally Binding Contract

  	
  28

  
	
  10.19

  	
  Exculpation

  	
  29

  
	
  10.20

  	
  Joint and
  Several

  	
  29

  



 


ii





















 


AGREEMENT OF CONTRIBUTION


 


THIS AGREEMENT OF CONTRIBUTION
(hereinafter referred to as the “Agreement”) dated as of this 28th
day of November, 2005, between Columbia-Hyde Group, L.L.C., a New York limited
liability company, having an address at c/o Columbia Holdings, LLC, 1720 Post
Road, Fairfield, CT 06824 (referred to as “Columbia”), and Inland
American Hyde Park Member, L.L.C., a Delaware limited liability company, having
an address at 2901 Butterfield Road, Oak Brook, Illinois 60523 (hereinafter
referred to as “Inland”).


 


WITNESSETH:


 


WHEREAS, Columbia is the owner
of certain real property containing approximately 15.00 acres of land known as
Hyde Park Stop & Shop and located in Dutchess County, state of New
York (hereinafter referred to as the “Real Property”).


 


WHEREAS, Columbia desires to
sell to Inland and Inland desires to purchase from Columbia the Property
subject to the terms and conditions hereinafter provided; and


 


NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties intending to be legally bound, hereby agree as follows:


 


ARTICLE 1


 


Contribution


 


1.1           Covenant to Contribute. Columbia,
through the formation of Inland American Hyde Park, L.L.C. (the “JV”), shall
contribute and convey to Inland, and Inland shall accept from Columbia, the following
(collectively, the “Property”):


 


(a)                               the Real Property
owned by Columbia, together with all of the tenements, hereditaments and
appurtenances appertaining thereto, including any estate, right, title,
interest, property, claim and demand of Columbia in and to all streets, alleys,
rights-of-way, sidewalks, easements, and utility lines or agreements
(hereinafter collectively referred to the “Land”);


 


(b)                              all improvements, buildings
and structures owned by Columbia situate on the Land, including the shopping
center and other facilities located thereon, and any apparatus, equipment,
appliances and fixtures incorporated therein and used in connection with the
operation and occupancy thereof, to the extent owned by Columbia (hereinafter
collectively referred to as the “Improvements”);


 


(c)                               all right, title and
interest of Columbia in and to the leases and other occupancy agreements with
the tenants set forth on Exhibit “B” attached hereto covering all or any
portion of the Real Property or the Improvements to the extent they


 


1





















 


are in effect on the Closing Date (as such term
is defined in Section 3.1 hereof) (hereinafter collectively referred to as
the “Leases”), together with all current rents and other sums due thereunder
(hereinafter referred to as the “Rents”);


 


(d)                            the non-exclusive
right to use all of Columbia’s architectural and engineering plans,
specifications and drawings, soil studies, land surveys, environmental studies
and reports, hazardous waste studies and reports, market reports and surveys
which are in the possession of the Columbia (if any) which relate to the
Property (hereinafter collectively referred to as the “Plans”);


 


(e)                             all utility, service,
equipment, maintenance and other contracts relating to the ownership,
maintenance or use of the Property, as approved during the Due Diligence Period
(as hereinafter defined) by Inland (hereinafter collectively referred to as the
“Property Contracts”);


 


(f)                               to the extent
assignable, all permits, approvals and licenses issued by any federal, state or
local governmental authority or agency pertaining to the ownership, operation,
maintenance or use of the Land, including, without limitation, zoning, site
plan and subdivision approvals and developers’ agreements (hereinafter collectively
referred to as the “Permits”);


 


(g)                            all books, records
and operating reports in Columbia’s possession, which are necessary to ensure
continuity of operation of the Property (hereinafter collectively referred to
as the “Records”);


 


(h)           all
right, title and interest, if any, of Columbia in and to the name of under
which the Property is currently being operated; and


 


(i)            all
warranties and/or guaranties for materials and workmanship benefiting the
Purchaser, to the extent assignable by their terms (hereinafter collectively
referred to as the “Warranties”).


 


1.2                               Contribution Value; Escrow Agent.


 


(a)                              Columbia is to
contribute and Inland is to accept all of the Property for the aggregate Contribution
Value of Thirteen Million and no/100 ($13,000,000.00) Dollars (hereinafter
referred to as the “Contribution Value”). The Purchase Price is subject to
adjustment in accordance with the calculation described in subsection 1.2(g),
hereof.


 


(b)                             Upon the execution
and delivery of this Agreement by Columbia and Inland, Inland shall deposit
with Chicago Title Insurance Company, 171 N. Clark Street, Chicago, IL 60601,
the sum of Four Hundred and 00/100 ($400,000.00) DOLLARS (hereinafter referred
to as the “Good Faith Deposit”). This Agreement shall not be deemed to be
effective and binding upon the parties hereto unless and until the Good Faith
Deposit is so delivered. If the Good Faith Deposit is not paid within two business
days following complete execution of this Agreement by all parties, this Agreement
shall be null and void and no party shall be bound by the terms hereof. The


 


2





















 


Escrow Agent shall hold the Good Faith Deposit in an
interest-bearing trust account maintained by the Escrow Agent at Chicago Title
Insurance Company, Chicago Office (hereinafter referred to as the “Deposit
Escrow Account”), in accordance with the terms and conditions of this
Agreement. The term “Deposit” shall mean and refer to the Good Faith Deposit
plus all accrued interest in the Deposit Escrow Account. The Deposit shall be
distributed in accordance with the terms of this Agreement.


 


(c)                                 Intentionally
deleted.


 


(d)                                (i)                                         The duties of the
Escrow Agent are limited to those specifically provided for herein and are purely
ministerial in nature. Escrow Agent shall incur no liability hereunder or
otherwise except for its own gross negligence or willful misconduct, and
Columbia and Inland hereby release Escrow Agent from any liability (other than
as excepted herein) for any action taken by it hereunder or for any failure or refusal
to act hereunder or for any other matter. Unless Escrow Agent shall have been guilty
of gross negligence or willful misconduct, Columbia and Inland, jointly and severally,
agree to indemnify and hold harmless Escrow Agent from and against any liability
incurred by it as a result of its acting as escrow Agent hereunder. Notwithstanding
the immediately preceding sentence, however, Inland shall be solely responsible
for the payment of all fees and other compensation charged by the Escrow Agent
for acting as such hereunder, including the reimbursement of any costs and expenses
incurred by the Escrow Agent in connection with its acting as Escrow Agent hereunder.


 


(ii)                             Escrow Agent shall
not be bound in any way or by any agreement or contract between Columbia or
Inland, whether or not it has knowledge thereof, and Escrow Agent’s only duties
and responsibilities shall be to hold the Deposit as escrow agent and to
dispose of the Deposit in accordance with the terms of this Agreement. Without
limiting the generality of the foregoing, Escrow Agent shall, in the absence of
its gross negligence or willful misconduct, have no responsibility to protect
the Deposit and shall not be responsible for any failure to demand, collect or
enforce any obligation with respect to the Deposit or for any diminution in
value of the Deposit for any cause. Escrow Agent may, at the expense of
Columbia and Inland, consult with counsel and accountants in connection with
its duties under this Agreement and Escrow Agent shall be fully protected in
any act taken, suffered or permitted by it in good faith in accordance with the
advice of such counsel and accountants. Escrow Agent shall not be obligated to
take any action hereunder which may, in its reasonable judgment, involve it in
any liability unless Escrow Agent shall have been furnished with reasonable
indemnity satisfactory in amount, form and substance to Escrow Agent.


 


(iii)                          Escrow Agent is
acting as a stakeholder only with respect to the Deposit. If there is any
dispute as to whether Escrow Agent is obligated to disburse the Deposit or as
to whom the Deposit is to be delivered, Escrow Agent shall not make any
delivery, but in such event Escrow Agent shall hold the Deposit until receipt
by Escrow Agent of any authorization in writing, signed by all parties having
an interest in such dispute, directing the disposition of the Deposit. In the
absence of such authorization Escrow Agent shall hold the Deposit until the
final determination of the


 


3





















 


rights of the parties in any appropriate proceeding.
Escrow Agent shall have no responsibility to determine the authenticity or
validity of any notice, in accordance with any written notice, direction or
instruction given to it under this Agreement and believed by it to be
authentic. If such written authorization is not given, or proceedings for such
determination are not begun, within thirty (30) days after the dispute arises,
Escrow Agent may, but is not required to, bring an appropriate action or
proceeding for leave to deposit the Deposit with a court of the State of New
York. Pending such determination Escrow Agent shall be reimbursed for all costs
and expenses of such action or proceeding, including, without limitation,
attorneys’ fees and disbursements by the party determined not to be entitled to
the Deposit. Upon making delivery of the Deposit in the manner provided in this
Agreement, Escrow Agent shall have no further liability hereunder. In no event
shall Escrow Agent be under any duty to institute, defend or participate in any
proceeding which may arise between Columbia and Inland in connection with the
Deposit.


 


(iv)                         Escrow Agent or any
successor Escrow Agent may resign at any time by giving fifteen (15) days’
prior notice of resignation to the other parties hereto, such resignation to be
effective on the date specified in such notice. In case the office of Escrow
Agent shall become vacant for any reason, Columbia may appoint a title company,
bank or trust company that is reasonably acceptable to Inland as successor
Escrow Agent to the retiring Escrow Agent, whereupon such successor Escrow
Agent shall succeed to all rights and obligations of the retiring Escrow Agent
as if originally named hereunder, and the retiring Escrow Agent shall duly
transfer and deliver to such successor Escrow Agent the funds and records,
including without limitation the Deposit, held by the retiring Escrow Agent
hereunder.


 


(e)                                  Escrow Agent shall
execute this Agreement solely for the purpose of being bound by the provisions
of Sections 1.2(b) and (d) hereof and to acknowledge its receipt of
the Good Faith Deposit.


 


(f)                                    At Closing, Columbia
shall receive the Contribution Value either: (i) in cash, (ii) in
operating units (the “Operating Units”) in a so-called “down REIT” Delaware
limited liability company (the “DR LLC”), which operating units shall be valued
at $10.00 per unit; or (iii) a combination of (i) and (ii) as
directed by Columbia. Attached hereto as Exhibit K and made a part hereof
is the form of DR LLC operating agreement (the “DR LLC OA”). The parties hereto
agree to execute the DR LLC OA at or prior to the date of Closing.


 


(g)                                 The Purchase Price
shall be subject to increase between the date hereof and the date of Closing
(and not after Closing) based upon a change in the 5-year Treasury yield
(together with the lender spread of 100 basis points) from the date hereof through
the date of calculation (not beyond the Closing Date). If at the time of
Closing the 5-year Treasury yield (together with the lender spread of 100 basis
points) is less than 5.10%, the Purchase Price shall increase ONE HUNDRED
NINETEEN THOUSAND AND NO/100 DOLLARS ($119,000.00) for every 10 basis points
the 5-year Treasury yield (together with the lender spread of 100 basis points)
is under 5.10%.


 


4





















 


ARTICLE 2


 


Title and Condition of Property; Financing 


 


2.1                               State of Title.


 


(a)                            Title shall be
conveyed to Inland at Closing in fee simple by New York form bargain and sale
deed (or its local equivalent) with covenants against grantor’s acts and shall
be insurable at regular rates free and clear of any and all liens, claims,
encumbrances, mortgages, deeds of trust and security interests (except for the
lien of real estate taxes not yet due and payable), but subject to all
Permitted Exceptions (as such term is defined in Section 2.1(c) hereof).


 


(b)                            Inland, the cost and expense
thereof to be paid by Columbia and Inland
in equal shares, shall obtain a preliminary title search (hereinafter referred to as the “Title Commitment”) from Chicago
Title Insurance Company (acting through Ticor Title
Insurance Company (its affiliate) (in such capacity, hereinafter referred to as the “Title Company”), pursuant to which
the Title Company has committed to insure (upon the
payment of a requisite premium at regular rates) that Inland shall own good and indefeasible fee simple title to the Property
as described in Section 2.1(a) of this Agreement.
Inland shall forward a complete copy of the Title Commitment to Columbia within five (5) business days after Inland’s
receipt of same. Inland shall have until 5 p.m. on December 14, 2005 (hereinafter referred to as
the “Due Diligence Period”) within which to
object, by written notice to Columbia, to any exceptions to title set forth in
the Title Commitment. Columbia, at the cost and
expense of Columbia and Inland in equal shares,
shall cause a reputable surveyor licensed in the state of New York, to prepare
and deliver an ALTA as-built survey of the Property
(to specifications approved by Inland) (the
“Survey”) to Inland and Columbia and the Title Company no later than 2-business days prior to the expiration of the Due Diligence
Period. Inland shall have until 5:00
p.m. on
the last day of the Due Diligence Period within which to notify Columbia in writing that Inland objects to any state of facts as
shown on any Survey, which written notice
must be given contemporaneously with any written notice given as to exceptions to title referred to above. If Inland notifies
Columbia in writing that Inland objects to any exceptions
to title and/or to any state of facts in the Survey (hereinafter referred to as
a “Title Objection Notice”), Columbia shall have
ten (10) business days after receipt of such
notification to notify Inland (i) that Columbia will remove the Title
Objection Notice exceptions
from title or, if applicable, remove the matters as shown on the Survey on or before the Closing or (ii) that Columbia
elects not to cause such exceptions or matters
to be removed. If Columbia fails to notify Inland within such ten (10) business days, Columbia shall be deemed to have given notice
under clause (ii) above. If Columbia gives (or is
deemed to have given) Inland notice under clause (ii) above, Inland shall have five (5) business days from the date
of receipt of such notice (or in a case where
Columbia gives no such notice, from the last date on which such notice could
have been given) in which
to notify Columbia and the Escrow Agent (x) that Inland will nevertheless proceed with the transactions
contemplated by this Agreement and take title to
the Property subject to such exceptions and such matters without reduction of
the Contribution Value or (y) that Inland will
terminate this Agreement. If Inland does not provide
any notice contemplated by the immediately preceding sentence, Inland shall be 


 


5





















 


deemed to have elected to take title to the Property
pursuant to clause (x) above. If this Agreement is terminated pursuant to the
provisions of Section 2.1(b)(y), (i) this Agreement shall terminate
and be of no further force and effect, (ii) no party hereto shall have any
further rights or obligations hereunder (except for representations, warranties
and/or any indemnity obligations of any party pursuant to the provisions of
this Agreement which expressly survive termination of this Agreement), and (iii) the
Escrow Agent shall immediately return the Deposit to Inland.


 


(c)                                  The term “Permitted Exceptions”
as used herein shall mean (i) the lien of real estate taxes, assessments
and water and sewer charges not yet due and payable, (ii) all matters set
forth in the Title Commitment and approved by Inland or deemed approved by
Inland as provided hereinabove, provided, however, matters set forth in the
Title Commitment for which the Standards of Title of the New York Bar Association
recommend no curative action be taken shall be deemed approved (iii) intentionally
deleted, (iv) all existing building, zoning and other city, state, county
or federal laws, codes and regulations affecting the Property, (v) any
existing general utility easements serving the Property (provided that such
easements do not subject any owner of such Property to obligations other than
are usual and customary in similar easements and provided further that no
Improvements (other than parking areas and access aisles) are constructed on
such easements), (vi) such state of facts as would be shown by accurate
survey of the Property, (vii) the Leases, and (viii) any title
exception created directly by any act or omission of Inland or its
representatives, agents, employees or invitees.


 


(d)                                 Columbia’s obligation
to convey title to the Property is solely as set forth in Section 2.1(a) hereof.
To the extent that Inland may elect, at its option, to request the Title
Company to issue endorsements to the most current form of ALTA owner’s title
insurance policy as currently and customarily used in the state of New York, the
issuance of such endorsements shall be shared equally by Inland and Columbia,
and (to the extent that Inland has not terminated this Agreement during the Due
Diligence Period in accordance with the terms of Section 2.4 hereof) the
issuance of any such endorsements shall not be a pre-condition to Inland’s
obligation to consummate the transactions contemplated by this Agreement.


 


2.2                               Investigations; No Reliance on Documents; As-Is
Sale.


 


(a)                                  Except as expressly
set forth in this Agreement, neither Columbia nor Inland makes any representations
or warranties as to the truth, accuracy or completeness of any materials, data
or information delivered by such party or its brokers or agents to the other
party in connection with the transaction contemplated hereby Columbia and
Inland acknowledge and agree that all materials, data and information delivered
by the other party in connection with the transactions contemplated hereby are
provided to the other party as a convenience only and that any reliance on or
use of such materials, data or information shall be at the sole risk of the
party receiving such materials, data or information from the other party,
except as otherwise expressly stated herein. Neither Columbia, nor any
affiliate of Columbia, nor the persons or entities which prepared any report or
reports (unless Inland has obtained reliance letters from any


 


6





















 


such persons or entities or has established legal
privity with such persons or entities by some other means) delivered by
Columbia to Inland, shall have any liability to Inland for any inaccuracy in or
omission from any such reports.


 


(b)                                 Except as expressly
set forth in this Agreement and in any documents delivered by Columbia at the
Closing, it is understood and agreed that Columbia is not making and has not at
any time made any warranties or representations of any kind or character,
express or implied, with respect to the Property, including, but not limited
to, any warranties or representations as to habitability, merchantability or
fitness for a particular purpose, or as to the state of title, physical
condition, environmental condition and/or zoning of the Property.


 


INLAND ACKNOWLEDGES AND
AGREES THAT UPON CLOSING COLUMBIA SHALL CONTRIBUTE AND CONVEY OR ASSIGN TO
INLAND AND INLAND SHALL ACCEPT THE Property “AS IS,
WHERE IS, WITH ALL FAULTS” AND WITH ALL LATENT OR PATENT DEFECTS,
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE
DOCUMENTS EXECUTED AND DELIVERED BY COLUMBIA AT THE CLOSING. INLAND HAS NOT RELIED
AND WILL NOT RELY ON, AND COLUMBIA IS NOT LIABLE FOR OR BOUND BY ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO ANY PROPERTY OR RELATING THERETO MADE OR FURNISHED BY COLUMBIA,
OR ANY REAL ESTATE BROKER OR AGENT PURPORTING TO REPRESENT COLUMBIA, TO
WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT OR DOCUMENTS EXECUTED AND DELIVERED BY
COLUMBIA AT THE CLOSING. INLAND ALSO ACKNOWLEDGES THAT THE CONTRIBUTION VALUE
REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS.” IN ADDITION, COLUMBIA
WILL HAVE NO OBLIGATION TO PROVIDE ANY REPAIRS, ALTERATIONS OR IMPROVEMENTS TO
THE PROPERTY AS A CONDITION PRECEDENT TO INLAND’S OBLIGATION TO CLOSE TITLE. IN
FURTHERANCE OF THE FOREGOING AND NOT IN LIMITATION THEREOF, INLAND SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN TO THE
CONTRARY, INLAND IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, FROM COLUMBIA OR ANY PARTNER, MEMBER, MANAGER, SHAREHOLDER, OFFICER
OR DIRECTOR OF COLUMBIA OR FROM ANY EMPLOYEE, ATTORNEY, AGENT OR REPRESENTATIVE
OF COLUMBIA AS TO ANY MATTER CONCERNING ANY PROPERTY OR ANY MATERIALS PROVIDED
BY THE COLUMBIA PURSUANT TO SECTION 2.3 HEREOF, INCLUDING WITHOUT
LIMITATION: (i) THE QUALITY, NATURE, HABITABILITY, MERCHANTABILITY, USE,
OPERATION, VALUE, MARKETABILITY, ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY
OR ANY ASPECT OR PORTION THEREOF, INCLUDING, WITHOUT


 


7





















 


LIMITATION, STRUCTURAL ELEMENTS, FOUNDATIONS, ROOFS,
APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL, MECHANICAL,
HVAC, PLUMBING, SEWAGE, UTILITY SYSTEMS, FACILITIES, APPLIANCES, SOILS, GEOLOGY
OR GROUNDWATER, (ii) THE DIMENSIONS OR LOT SIZE OF ANY PROPERTY OR THE
SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR OF ANY TENANT SPACE THEREIN, (iii) THE
DEVELOPMENT OR INCOME POTENTIAL, OR DEVELOPMENT OR OTHER RIGHTS OF OR RELATING
TO PROPERTY, (iv) PROPERTY’S INSURABILITY, MERCHANTABILITY, FITNESS,
SUITABILITY, OR ADEQUACY FOR ANY PARTICULAR PURPOSE, (v) THE ZONING OR
OTHER LEGAL STATUS OF PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON
THE USE OF PROPERTY, (vi) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION
WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS,
CONDITIONS OR RESTRICTIONS OF ANY GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON
OR ENTITY (INCLUDING, WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT),
(viii) THE ABILITY OF INLAND TO OBTAIN ANY GOVERNMENTAL APPROVALS,
LICENSES OR PERMITS NECESSARY FOR INLAND’S INTENDED USE OR DEVELOPMENT OF THE
PROPERTY, (viii) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS ON, IN,
UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR NEIGHBORING PROPERTY, (ix) THE
DESIGN, CONSTRUCTION OR THE QUALITY OF ANY LABOR AND MATERIALS USED IN THE
CONSTRUCTION OF ANY IMPROVEMENTS, (x) THE CONDITION OF TITLE TO THE PROPERTY,
(xi) THE LEASES, CONTRACTS OR ANY OTHER AGREEMENTS AFFECTING THE PROPERTY OR
THE INTENTIONS OF ANY PARTY WITH RESPECT TO THE NEGOTIATION AND/OR EXECUTION OF
ANY LEASE OR CONTRACT WITH RESPECT TO THE PROPERTY, OR THE APPLICABLE COLUMBIA’S
OWNERSHIP, DEVELOPMENT OR OPERATION OF THE PROPERTY OR (xii) THE ECONOMICS OF,
OR THE INCOME AND EXPENSES, REVENUE OR EXPENSE PROJECTIONS OR OTHER FINANCIAL
MATTERS, RELATING TO THE PROPERTY, OR THE OPERATION THEREOF. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, INLAND AGREES THAT INLAND IS NOT RELYING ON
ANY REPRESENTATION OR WARRANTY OF COLUMBIA, WHETHER SUCH REPRESENTATION OR
WARRANTY IS IMPLIED, PRESUMED OR EXPRESSLY PROVIDED, ARISING BY VIRTUE OF ANY
STATUTE OR COMMON LAW. INLAND AGREES THAT COLUMBIA IS UNDER NO DUTY TO MAKE ANY
INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO ANY
COLUMBIA OR TO CONFIRM, INVESTIGATE OR QUESTION THE ADEQUACY OF ANY APPRAISAL,
REPORT, ANALYSES OR STUDY OF ANY ASPECT OF THE PROPERTY PREPARED OR OBTAINED BY
COLUMBIA.


 


(c)                                  Inland’s acceptance
of Columbia’s deed for the Property in favor of the JV shall be deemed to be
full performance by Columbia of, and will discharge Columbia from, all
liabilities and obligations under this Agreement, and thereafter Columbia shall
have no liability or obligation to Inland or to any subsequent owner of the


 


8





















 


Property with respect to the Property, nor any
liability or obligation to any other person, firm, corporation or public body
with respect to actions or claims which arise on or after the Closing Date with
respect to the Property. Upon transfer of the Property, Inland shall be deemed
to have accepted and shall be subject to the terms, conditions and other
obligations applicable to the owner of, and relating to, the Property which are
set forth in any governmental approvals relating to the construction, use or
occupancy of the Property, including without limitation, site plan approvals and
developer’s agreements, whether or not same shall have been recorded.


 


(d)                                 Inland, in
consideration for the promises and covenants contained in this Agreement, and for other good and valuable
consideration, the receipt of which is hereby
acknowledged, as of Closing does hereby release and forever discharge Columbia from any and all actions, causes of action, suits,
controversies, claims and demands whatsoever, in law
and in equity, for or on account of injuries claimed to have been received by Inland in connection with the condition of
the Property as of the date of Closing, including
without limitation the geophysical and environmental condition on, or originating from, the Property. It is expressly
understood and agreed by Inland and Columbia
that this release specifically applies to any claims made in connection with
any possible environmental contamination on, or
originating from, the Property, and/or any violation
of the Environmental Laws (as such term is hereinafter defined) by the Columbia in connection with the Property. For the
purposes of this release, the term “environmental
contamination” shall include any type of environmental orders, statutes or regulations applicable to the Property, including without
limitation to the Comprehensive Environmental
Response, Compensation and Liability Act, the Superfund
Amendments and Reauthorization Act, the Federal Clean Water Act, the Spill Compensation and Control Act, the Federal Water Pollution
Control Act, the Underground Storage
of Hazardous Substances Act, the Resource Conservation and Recovery Act and all other applicable federal, state
and/or local environmental acts (hereinafter
collectively referred to as the “Environmental Laws”) as the same are currently in force or may be later amended, as well as
any other claims, suits or actions arising
from or related to the environmental condition of the Property. By accepting
title to the Property at
Closing, Inland shall be deemed to have agreed that Inland: (i) is satisfied with the environmental conditions of the
Property (regardless of whether the Property
complies with all Environmental Laws or other laws, orders, statutes or regulations affecting the Property) and that Inland
shall have been given the opportunity to
determine, to its own satisfaction, that the Property complies with all
Environmental Laws or other laws,
orders, statutes or regulations affecting the Property; (ii) accepts that Property in an “AS IS” condition without relying on
any verbal or written statement or representation
relating to the Property that may have been made by the Columbia (except as expressly set forth in this Agreement); and (iii) shall
be solely responsible for any environmental
contamination on, or originating from, the Property which is not disclosed in the Environmental Assessments to be obtained by
Inland pursuant to Section 2.3 hereof
or which otherwise occurs after the Closing Date due to the actions or
inactions of the Inland, its
successors and/or assigns or any third party, and Inland agrees that it will be solely responsible for any such environmental
contamination. It is understood and agreed
that Columbia does not admit any liability for any environmental contamination, and liability on the part of Columbia is expressly
denied. 


 


9





















 


(e)                                  The provisions of
this Section 2.2 shall survive Closing or termination of this Agreement.


 


2.3                               Due Diligence Period. Inland shall have until 5 p.m.
(prevailing New York City, New York
time) on the last day of the Due Diligence Period to inspect the Property, to conduct and prepare studies, tests and
surveys and to investigate and review any
and all matters relating to the Property which Inland shall reasonably deem appropriate, including, without limitation, zoning
matters, environmental matters, the Plans, the
Property Contracts, the Permits, the Leases, the Records, the Title Commitment and the condition of the Property. In
connection with Inland’s review of the Property,
Columbia, shall deliver to Inland within five (5) business days after the
signing of this Agreement
copies of the documents described on the Due Diligence Checklist attached hereto as Exhibit “C” and made a part
hereof, including copies (if any) of (i) the most
recent tax bills, (ii) the most recent title report and survey of the
Property as are available, (iii) each
of the Leases and any amendments thereto, (iv) all Property Contracts, (v) all Plans, (vi) all Permits, (vii) all
Records, (viii) all Warranties, (ix) all environmental reports and studies relating to the
Property and (x) all unrecorded developer’s
agreements. All of the foregoing tests, investigations and studies shall be conducted by Inland or its agents at Inland’s sole
risk, cost and expense. Prior to any such
entry unto the Property, Inland shall afford Columbia not less that one (1) business day’s advance written notice of such inspection. Inland
covenants and agrees that none of its tests,
investigations or studies shall materially interfere with or disrupt in any manner whatsoever (hereinafter referred to
collectively as “Interference”) (x) the operation
of any Property or any part thereof by any Columbia or any tenant under any Lease or (y) the conduct of business by any Columbia
or any tenant under any Lease. Prior to entry on any
Property by Inland, Inland shall deliver to Columbia certificates of insurance (prepared on an insurance certificate form
known as an “Accord 27”) from an insurance company or
companies reasonably satisfactory to Columbia, naming Columbia and any other party requested by Columbia as
additional insureds which certificates shall evidence
policies of insurance insuring against claims for bodily injury, death and property damage with confirmed single limit amounts of
$1,000,000.00 and aggregate amounts of
$2,000,000.00. So long as no Interference results therefrom, Columbia will provide Inland and its agents with access to all structures located on the respective Property to permit Inland to fully conduct its due
diligence activities. Inland shall repair and
restore any damage caused to the Property as a result of entry by Inland or its
agents or representatives.
Inland shall defend, indemnify and hold Columbia harmless from and against any and all damages, losses, liabilities,
costs and expenses (including, without limitation,
reasonable attorneys’ fees and court costs) suffered or incurred by Columbia or any tenant under any Leases with respect to all claims
for personal injury, death or for loss or damage to
property in connection with Inland’s or its agents’, representatives’, contractors’ or subcontractors’ entry onto the
Property and/or performance of such studies,
tests and surveys. Inland’s indemnification obligations under this Section 2.3 shall survive the Closing or termination of this
Agreement. 


 


2.4                               Inland’s Right to
Terminate. Inland shall have until 5:00 p.m. (prevailing New York City,
New York time) on the last day of the Due Diligence Period within which to
notify Columbia and Escrow Agent in writing (hereinafter referred to as a


 


10





















 


“Termination Notice”), of its election to terminate
this Agreement in its entirety (but not otherwise), for any reason or for no
reason whatsoever. If this Agreement is terminated pursuant to the provisions
of this Section 2.4, (i) this Agreement shall terminate and be of no
further force and effect, (ii) no party hereto shall have any further
rights or obligations hereunder (except for representations, warranties and/or
any indemnity obligations of any party pursuant to the provisions of this
Agreement which expressly survive termination of this Agreement), and (iii) the
Escrow Agent shall immediately return the Deposit to Inland. If Inland shall
not deliver an appropriate Termination Notice within the time period set forth
herein, Inland shall be deemed to have accepted the results of its due
diligence examination of the Property, this Agreement shall remain in full
force and effect and Inland shall have no further right to cancel or terminate
this Agreement, except as otherwise expressly provided herein. If Inland
terminates this Agreement, Inland shall promptly return all due diligence
material provided by Columbia.


 


2.5                               Prepayment of Existing Loans.


 


Inland hereby acknowledges that the Property is
currently subject to that certain mortgage loan generally described on Exhibit “D”
attached hereto and made a part hereof (hereinafter collectively referred to as
the “Existing Loan”) made by the Lender (hereinafter referred as the “Existing
Lender”) identified on Exhibit “D” hereto. Inland and Columbia
hereby acknowledge and agree that Inland is not assuming the obligations of the
Columbia under the Existing Loan, and that all principal and accrued and unpaid
interest under the Existing Loan shall be prepaid out of the proceeds of the
Closing of the transactions contemplated hereby. Columbia agrees to cooperate
with inland in its attempt to cause the Existing Lender to assign the recorded
mortgage documents to Inland’s lender.


 


11





















 


ARTICLE 3


 


The
Closing


 


3.1                            Time and Place. Consummation of the
transactions contemplated hereby (hereinafter referred to as the “Closing”)
shall take place using the services of Chicago Title Insurance Company (“Chicago
Title”), as escrow agent. Columbia and Inland shall deliver all of their
respective closing documents in escrow to Chicago with instructions on the
distribution of the documents at such time as Chicago Title has wired to
Columbia the net funds due Columbia in accordance with the closing statement
agreed upon between the parties. The Closing shall take place on December 15,
2005 (hereinafter referred to as the “Closing Date”). Columbia agrees to
reasonably cooperate with Inland in its attempt to take an assignment of the
existing loan documents encumbering the Property.


 


3.2                            Closing. At the Closing (or such earlier date
as set forth herein), Columbia and Inland shall take such actions and deliver
such agreements and other instruments and documents necessary or appropriate to
effect the transactions contemplated by this Agreement in accordance with the
terms hereof, including, without limitation, the following:


 


(a)         Inland shall deliver
to Columbia the portion of the Contribution Value payable pursuant to Section 1.2(c) hereof
and the Escrow Agent shall deliver the Deposit to the Columbia.


 


(b)        Columbia and Inland
shall execute and deliver closing statements each in a form reasonably
acceptable to Columbia, Inland and their respective counsel.


 


(c)         Columbia shall convey
and transfer to the JV good and insurable title to the Property, subject to the
Permitted Exceptions, by executing, acknowledging and delivering the deed to
Inland (the “Deed”).


 


(d)        Columbia and Inland
shall execute and deliver assignment and assumption agreements in substantially
the form attached hereto as Exhibit “E” and made a part hereof, duly
executed and acknowledged by Columbia and the JV and in proper form for
recording (if necessary), pursuant to which Columbia will assign to the JV all
of Columbia’s rights, title and interest as lessor in and to the respective
Leases, and pursuant to which the JV will assume all obligations as lessor
under the Leases.  Columbia will simultaneously
deliver to Inland an original executed copy of each of the Leases and all
guarantees of the Leases and a letter, duly executed by the respective
Columbia, in form satisfactory to Inland, addressed to each of the tenants
under the Leases advising the tenants of the assignment of the Leases.


 


12





















 


(e)          Columbia shall use
its commercially reasonable efforts (which for purposes of this Section 3.2(e)
shall not require Columbia to incur unreasonable costs) to cause Stop &
Shop (as hereinafter defined) to deliver to Inland a written tenant estoppel
certificate in the form required under each such Lease, or if no form is
specified and if no form is generally used by a tenant in similar transactions,
in substantially the form attached hereto as Exhibit “F” and made a
part hereof.


 


(f)            Columbia shall
deliver to Inland a rent roll for the Property owned by it containing a schedule of
the Rents and other charges and payments due from Stop & Shop dated as
of the Closing Date and certified by Columbia as true and correct.


 


(g)         Columbia shall
deliver to Inland an affidavit of title in customary form, duly executed and
acknowledged by Columbia.


 


(h)         Columbia and Inland
shall deliver to the Title Company all documents, affidavits and instruments
reasonably required by the Title Company and in a form reasonably acceptable to
Columbia, Inland, their respective counsel and the Title Company.


 


(i)             Columbia shall
deliver to Inland a limited liability company certificate, satisfactory to the
Title Company and Inland, with respect to the authority of Columbia to approve
this Agreement and the transactions contemplated hereby.


 


(j)             Inland shall deliver
to Columbia a corporate resolution, satisfactory to the Title Company and
Columbia, with respect to the authority of Inland to approve this Agreement and
the transactions contemplated hereby.


 


(k)          Columbia shall
deliver to Inland all Plans, Property Contracts, Permits, Records and all other
records pertinent to the ownership, operation, maintenance or use of the
Property which are in such Columbia’s possession. Columbia and Inland shall
execute and deliver an assignment and assumption agreement, pursuant to which
Columbia will assign to Inland all of such Columbia’s right, title and interest
in the Plans, Property Contracts, Permits and Records, and pursuant to which
Inland will assume all obligations with respect thereto.


 


(l)             Columbia shall
deliver to Inland an affidavit stating that such Columbia is not a “foreign
person” as that term is defined pursuant to the Foreign Investment in Real
Property Tax Act of 1980 (hereinafter referred to as “FIRPTA”).


 


(m)       Columbia shall
execute a notice to Stop & Shop in substantially the form attached
hereto as Exhibit “G”, which notices shall be delivered to Inland at Closing for Inland
to forward to the respective Tenants.


 


13





















 


(n)         The parties shall
execute and deliver to each other any other instrument or instruments (i) required
to be delivered under any provision of this Agreement and (ii) reasonably
requested by the attorney for either party in connection with this transaction.


 


(o)         To the extent
obtained by Inland (with Columbia’s cooperation in accordance with Section 6.2(c) hereof),
and to the extent paid for on before Closing by Inland, Columbia shall cause
all Warranties to be transferred to the name of the JV.


 


(p)         To the extent
obtained by Columbia in accordance with Section 6.2(c) hereof,
estoppel certificates from Stop & Shop (as a tenant) and from any
other party to any reciprocal easement or similar agreement affecting the
Property (hereinafter referred to as the “REA Estoppels”) in either the form
prescribed by any such document or in substantially the same form attached
hereto as Exhibit “H.”


 


(q)         Columbia shall
execute and deliver to Inland’s auditors, KPMG, an audit letter in the form
attached as Exhibit J, attached hereto and made a part hereof. In the
event the audit of Property operations has not been performed by KPMG at or
prior to the date of Closing, Columbia agrees to execute and deliver the audit
letter at such time as the audit is performed. The terms of this provision
shall survive Closing.


 


(r)            Columbia and Inland
shall execute and deliver the DR LLC OA.


 


(s)          Columbia shall
deliver to Inland a waiver by Stop & Shop of its right of first offer.


 


3.3                                                                           Delivery of
Possession. Possession of the Property shall be delivered to Inland at the
Closing upon execution and delivery of the Deed (in favor of the JV) free of
all tenancies and occupants, except with respect to tenants under the Leases.


 


14





















 


ARTICLE 4


Apportionments and
Allocation of Expenses


 


4.1                           Credits and Prorations. Subject to any
provision of this Agreement to the contrary, the following items shall be
apportioned for the calendar year in which the Closing occurs as of midnight on
the calendar day immediately preceding the Closing: (a) all Rents,
revenues and other income, if any, from the Property, (b) real estate
taxes; (c) water and sewer charges and other utility charges, if any, (d) all
security deposits under Leases shall be credited to Inland at Closing, and (e) any
other income, expense or other items relating to the Property which is
customarily prorated between a purchaser and a Columbia of real property in the
counties in which the Property is located.


 


4.2                           Other Adjustments.


 


(a)       Notwithstanding
anything contained in Section 4.1 hereof, any taxes paid at or prior to
Closing shall be prorated based upon the amounts actually paid. If taxes and
assessments due and payable during the year of Closing have not been paid before
Closing, Columbia shall be charged at Closing an amount equal to that portion
of such taxes and assessments, plus interest and penalties, if any, which
relate to the period before Closing and Inland shall pay the taxes and
assessments prior to their becoming delinquent. Any such apportionment made
with respect to a tax year for which the tax rate or assessed valuation, or
both, have not yet been fixed shall be based upon the tax rate and/or assessed
valuation last fixed. To the extent that the actual taxes and assessments for
the current year differ from the amount apportioned at Closing, the parties shall
make all necessary adjustments by appropriate payments between themselves
within thirty (30) days after such amounts are determined following Closing, subject
to the provisions of Section 4.2(b) of this Agreement.


 


(b)           Except as otherwise
provided herein, any expense amount which cannot be ascertained with certainty
as of Closing (and for which Inland and Columbia are unable to adjust and/or
allocate at or prior to Closing) shall be prorated on the basis of the parties’
reasonable estimates of such amount, and shall be the subject of a final proration
ninety (90) days after Closing, or as soon thereafter as the precise amounts
can be ascertained. Inland shall promptly notify Columbia when it becomes aware
that any such estimated amount has been ascertained. Once all revenue and
expense amounts have been ascertained, Inland shall prepare, and certify as
correct, a final proration statement which shall be subject to Columbia
approval. Upon the acceptance and approval by Columbia of any final proration
statement submitted by Inland, such statement shall be conclusively deemed to
be accurate and final.


 


(c)            All rents, including
without limitation all basic rent, additional rent, CAM charges, tenant real
estate tax reimbursements and all amounts due and payable to the landlord under
the Leases (hereinafter collectively referred to as “Rents”), shall be prorated
and adjusted as of the Closing Date based upon the number of days in the month in
which the Closing occurs. In furtherance of the foregoing, and in furtherance
of the desire of Inland and Columbia to negotiate appropriate credits for all
tenant matters,


 


15





















 


Columbia shall prepare all CAM reconciliations for
calendar year 2005 prior to the end of the Due Diligence Period, and shall
deliver copies thereof to Inland. Based upon (i) the overpayments and
underpayments shown on the CAM reconciliations (ii) the delinquency, if any,
at such time in the payment of Rent by any Tenants and (iii) the
existence, if any, of any unpaid tenant improvements or leasing commissions or
any unexpired free rent periods (hereinafter collectively referred to as “Tenant
Concessions”) Inland and Columbia shall negotiate in good faith with each other
appropriate credits to one another to be allocated at Closing in connection
with the Leases. Such good faith negotiations shall include negotiations with
respect to Rents which remain unpaid on and as of the anticipated Closing Date,
as well as allocation of responsibility for the economic effect of the payment
or realization of Tenant Concessions, it being the intent of the Inland and
Columbia to negotiate fair and equitable credits such that (i) Columbia
will have no claims against Tenants following Closing for past due Rent, CAM
payments, other additional rent and Tenant Concessions, (ii) Columbia will
owe no additional payments to Inland in respect of Rent, CAM payments, other
additional rent and Tenant Concessions, and (iii) Inland will owe no
additional payments to Columbia in respect thereof.


 


(d)           All common area
expenses, maintenance, taxes other than real estate taxes (such as rental
taxes), other expenses incurred in operating the Property, and any other costs
incurred in the ordinary course of business or in the management and operation
of the Properly, shall be prorated on the basis of the actual number of days
elapsed (monthly or annually, as applicable). Subject to the negotiations
referred to in Section 4.2(c) hereof, Columbia shall pay all such
expenses that accrue prior to Closing and Inland shall pay all such expenses
accruing as of the Closing Date and thereafter. Columbia and Inland shall
obtain billings and meter readings as of the Closing Date to aid in such
prorations, to the extent available or necessary.


 


(e)            Inland shall be
entitled to a credit in the amount of the tenant security deposits set forth on
Schedule 4.2(e) attached hereto.


 


(f)              Subject to the final
sentence of Section 4.2(b) hereof, the provisions of this Section 4.2
shall survive Closing.


 


4.3                               Transaction and Closing Costs.


 


(a)            Columbia and Inland
shall execute such returns, questionnaires and other documents as shall be
required with regard to all applicable real property transaction taxes imposed
by applicable federal, state or local law or ordinance.


 


(b)           Columbia shall pay
the fees of counsel representing Columbia in connection with this transaction.
In addition, Columbia shall also pay the following costs and expenses:


 


(i) any realty transfer tax, sales tax,
documentary stamp tax or similar tax which becomes payable by reason of the
transfer of the Property;


 


16





















 


(ii) the fees for any consultants which
have been hired or retained by Columbia in connection with the transactions
contemplated by this Agreement;


 


(iii) 50% of all survey
and title charges;


 


(c)            Inland shall pay the
fees of counsel representing Inland in connection with this transaction, if
any. In addition, Inland shall also pay the following costs and expenses:


 


(i) 50% of all survey and title charges;


 


(ii) the cost of appraisals, Environmental
Assessments of the Property prepared on Inland’s behalf or at Inland’s
direction;


 


(iii) the fees for recording the Deed and
any other recordable Transfer Documents;


 


(iv) except as set forth in Section 9.1
hereof, the fees for any other brokers or consultants which have been hired or
retained by Inland in connection with the transaction contemplated by this
Agreement;


 


(v) the fees and expenses of the Escrow
Agent, as set forth in Section 1.2(d)(i) hereof; and


 


(vi) all costs of obtaining Inland
financing, if any, and mortgage recording fees and taxes in connection
therewith, and all costs associated with the assignment of the existing
recorded loan documents to Inland’s lender.


 


(d)           All costs and
expenses incident to the transaction contemplated hereby and the closing
thereof, and not specifically described above, shall be paid by the party
incurring same.


 


(e)            The provisions of
this Section 4.3 shall survive the Closing or termination of this
Agreement.


 


ARTICLE 5


 


Representations
and Warranties


 


5.1                               Columbia Representations and Warranties.
Columbia, hereby makes the following representations and warranties to Inland as
of the date of this Agreement, which representations and warranties shall be
true and correct as of the Closing Date as a condition to Inland’s obligation
to close hereunder:


 


(a)                                  Columbia is a limited
liability company duly organized, validly existing and in good standing under the laws
of its state of formation. Columbia


 


17





















 


has all requisite power and authority to own and
operate its Property and carry on its business with respect to such Property as
now being conducted. Columbia has the requisite power and authority to enter
into this Agreement and to perform its obligations hereunder and to consummate
the transactions contemplated hereby. Neither the execution, delivery and
performance by Columbia of this Agreement, nor the consummation of the
transactions contemplated hereby or thereby will violate or conflict with any
provision of the articles of organization or operating agreement of Columbia.


 


(b)                             Columbia is not a “foreign
person” as such term is defined pursuant to FIRPTA.


 


(c)                              The execution,
delivery and performance by Columbia of this Agreement, and the consummation of
the transactions contemplated hereby and thereby, will not violate any
provision of Columbia’s organization documents.


 


(d)                             That certain
Amendment and Restatement of Lease dated as of September 28, 2000, entered
into by and between Columbia Hyde Group, L.L.C., a New York limited liability
company (as landlord) and The Stop & Shop Supermarket Company, a
Delaware corporation (“Stop & Shop”) for its primary demised premises existing
as of the date hereof (the “Stop & Shop Lease”) is the only lease and
tenancy in effect with respect to the Property and no individuals or entities
occupy the Property or any portion thereof except pursuant to the Leases. The
copies of the Leases previously delivered or to be delivered to Inland are or
will be true, correct and complete copies of all the Leases and any amendments
thereto. Except as disclosed herein or in the Leases, copies of which shall be
reviewed by Inland during the Due Diligence Period, no Lease provides the
tenant thereunder with a right of first refusal to purchase its demised premises
or any of the Property.


 


(e)                              Columbia has not
received any written notice from a tenant under any Lease of such tenant’s
intention to vacate or abandon its demised premises prior to the end of the
term of its Lease. Columbia shall promptly provide Inland with a copy of any
written notice of default under any Lease given or received between the date hereof
and the date of the Closing.


 


(f)                                    Columbia has not
received any written notice from any tenant under any Lease which claim any
default by Landlord thereunder. Columbia shall promptly provide Inland with a
copy of any written notice of default under any Lease given or received between
the date hereof and the date of the Closing.


 


(g)                                 Except as otherwise
disclosed to Inland, Columbia has not received any written notice of any
violations of any federal, state or municipal zoning, fire, environmental, building
or other laws, codes, statutes, ordinances, orders, regulations or requirements
affecting the Property owned by it, the terms of which have not been complied
with, and Columbia will promptly notify Inland of the receipt of any written
notice of any such violations received by such Columbia between the date hereof
and the date of the Closing.


 


18





















 


(h)                                 There are no
attachments, executions, assignments for the benefit of creditors,
receiverships, conservatorships or voluntary or involuntary proceedings in
bankruptcy or actions pursuant to any other debtor relief laws contemplated by
any Columbia or pending against such Columbia and regarding the Property owned
by it.


 


(i)                                     No tenant is entitled
to any rent concessions or “free rent” under the terms of any of the Leases,
all tenant improvement allowances due under any of the Leases have either been
paid, or if not yet due and payable, will be escrowed by Columbia from the net
funds due Columbia at the Closing, with Chicago Title.


 


(j)                                     Schedule 5.1(j) sets forth any
unpaid leasing commissions and the amount hereof. All leasing commissions for
which a lien could be filed shall be paid on or before the Closing Date


 


5.2                               Inland’s Representations and Warranties. Inland
hereby makes the following representations and warranties to Columbia as of the
date of this Agreement, which representations and warranties shall be true and
correct as of the Closing Date as a condition to Columbia’s obligation to close
hereunder.


 


(a)         Inland is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Illinois. Inland has the requisite power and authority to
enter into this Agreement and to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by Inland of the transactions contemplated hereby and thereby
have been duly authorized by Inland and no consents of any third parties are necessary
for Inland’s execution, delivery and performance of this Agreement and the transactions
contemplated hereby and thereby. Neither the execution, delivery and performance
by Inland of this Agreement, nor the consummation of the transactions contemplated
hereby or thereby will violate or conflict with any provision of the documents
and instruments under which Inland is constituted.


 


(b)                               No action or other
proceeding whatsoever is now pending or, to the best knowledge of Inland,
threatened against Inland or any shareholders, partners, members or owners, as
the case may be, of the foregoing which calls into question or seeks to set
aside or enjoin any of the approvals or authorizations of the transactions contemplated
by this Agreement, or the performance of Inland’s obligations hereunder, or
which will or may otherwise impede the Closing.


 


(c)                                Inland has all funds available
to it which are sufficient to consummate the transaction contemplated by this
Agreement.


 


(d)                               Inland fully
understands the nature and significance of the transactions provided for in
this Agreement and the limitations provided in Section 2.2 hereof and
elsewhere herein. Inland is satisfied with the amount being paid by it for the Property,
as set forth herein, based and in sole reliance upon its own valuation of the Property and its
review and analysis of the rent roll for each Property, reports of physical


 


19





















 


inspections (including without limitation, environmental
inspections), business, operations, condition and prospects for the Property.


 


5.3                            Changed Circumstances. Columbia and Inland
shall promptly notify the other in writing, if, after the execution of this
Agreement and prior to the Closing, any event occurs or condition exists which
renders any of the foregoing representations and warranties made by it materially
untrue or misleading.  All of the foregoing
representations and warranties, respectively, shall be deemed made by Columbia,
respectively, and Inland on the date of this Agreement and at the time of the
Closing.


 


5.4                            Survival of Representations and Warranties;
Limitation on Columbia’s Liability. Unless otherwise set forth in this
Agreement, the representations and warranties of Columbia and Inland,
respectively, as set forth in this Article 5 and elsewhere in this Agreement
and in any other agreements, affidavits, estoppels, instruments or other
documents executed by any of the Columbia in connection with the transactions
contemplated hereby (hereinafter collectively referred to as the “Closing Documents”)
shall survive Closing for six (6) months. In the event that the Closing of
the transactions contemplated herein occurs, and to the extent that,
thereafter, Inland incurs any actual costs or losses during the six (6) month
period referred to above as a result of any incorrect representations or
warranties made by Columbia hereunder or under the Closing Documents which
exceed $25,000.00, Columbia shall reimburse Inland for such claims, costs and
expenses within fifteen (15) days after delivery by Inland to Columbia of
reasonable evidence of the payment of such claims, costs and expenses. No
claims based upon any incorrect representation or warranties may be brought by
Inland to the extent that the costs or losses actually incurred by Inland do
not individually or collectively exceed the Minimum Threshold, and no such
claims may be brought at any time following the six-month anniversary of the
Closing. In addition, to the extent that Inland actually knows at or prior to
Closing that any of Columbia’s representations or warranties are inaccurate,
untrue or incorrect in any way, such representations and warranties shall be
deemed modified to reflect Inland’s knowledge. Without limitation, Columbia
shall not have any liability in connection with this Agreement by reason of any
inaccuracy of a representation or warranty if and to the extent that such
inaccuracy has been identified by Columbia by notice to Inland or otherwise is
actually known by Inland at the time of Closing (whether matters contradicting any
representation or warranty is contained in any Exhibit or Schedule to
this Agreement, whether such matters are contained in any materials delivered
to Inland by or on behalf of Columbia, or whether such matters are contained in
any study, test, analysis or report prepared by or for the benefit of Inland in
connection with the transactions contemplated hereunder), and Inland consummates
the Closing.


 


ARTICLE 6 


 


Additional
Agreements


 


6.1                               Operations Pending Closing. Between the date of
execution of this Agreement and the Closing, Columbia shall comply with all
covenants, conditions,


 


20





















 


restrictions, laws, statutes, rules and
regulations and ordinances applicable to the Property, and shall own, manage
and operate the Property in a manner consistent with past practices and shall
use reasonable and prudent efforts to preserve for Inland the favorable
relationships which Columbia has with tenants, suppliers, vendors and others
having ongoing relationships with the Property. Columbia (a) may, at
Columbia’s option, after prior notice to Inland, in the ordinary course and
consistent with Columbia’s current practices, negotiate with prospective
tenants, and (b) enter into Leases (on terms that Columbia believes, in its
good faith business judgment, to be market terms), enforce Leases and perform
landlord’s obligations under the Leases (other than with respect to Leases that
have been or that are in the process of being terminated). Columbia shall not,
without first obtaining written consent of Inland, which consent shall not be
unreasonably withheld, conditions or delayed, enter into new Leases or modify
the terms of or terminate any Leases. In addition, Columbia shall promptly
notify Inland, in writing, of (i) any default beyond applicable grace
periods committed by any tenants (other than defaults in the payment of rent,
adjustments for which will be made at Closing); and (ii) any written
notices received from any tenants regarding Columbia’s defaults or any tenant’s
intention to terminate its lease.


 


6.2                               Mutual Cooperation. Columbia and Inland agree
to cooperate fully with one another in connection with the transactions
contemplated herein during the Due Diligence Period. In furtherance of the
foregoing, Columbia agrees to (a) to provide contact information to Inland
with respect to persons who prepared previous surveys, environmental
assessments and appraisals, if any, with respect to the Property, (b) to
execute all documents (at no cost to Columbia) to effectuate the transfer to
Inland of any Warranties and (c) to use its commercially reasonable
efforts (which for purposes of this Section 6.2 shall not require Columbia
to incur unreasonable costs) to obtain the REA Estoppels.


 


Article 7


 


Risk of Loss


 


7.1                               Casualty.


 


(a)            If, at or prior to
Closing, any damage, destruction or casualty shall have occurred as to which a
tenant (i) has the responsibility to repair and restore the Property under
its respective Lease and (ii) has no right of rent abatement or offset, in
full or in part as a result of such casualty, the parties shall proceed to
Closing in accordance with the terms of this Agreement without any reduction in
the Contribution Value.


 


(b)           (i) If, at or
prior to Closing, any other damage, destruction or casualty, of any Property,
occurs, which damage, destruction or casualty creates loss valued at ten (10%)
percent or less of the Contribution Value, then this Agreement shall continue
in full force and effect and Columbia shall give written notice of such event
to Inland (which notice will include a description of the nature, extent and
estimated amount of damage or loss suffered by the Property in connection with
such casualty), in which event the parties shall proceed to Closing in
accordance with the terms of this Agreement


 


21





















 


without any reduction in the Contribution Value, and
Columbia shall (A) assign to Inland at Closing all of its rights to and
interest in all proceeds of casualty insurance and business interruption and
rent loss insurance relating to the period from and after the date of Closing
payable on account of such casualty, (B) pay to Inland at Closing an
amount equal to the full amount of the deductible applicable under such
insurance policies, by way of a credit against the Contribution Value equal to
the deductible unless tenants are responsible for the deductible in CAM.
Columbia shall cooperate reasonably with Inland before and after Closing to
file and process an insurance claim for all insured loss arising out of such
casualty. Columbia shall not settle or adjust any such insurance claim without
Inland’s prior written consent. Columbia shall have no obligation to repair or
restore any Property other than necessary measures as may be necessary to secure
any such Property from natural elements, vandalism or further deterioration.


 


(ii)                                  If, at or prior to Closing,
any other damage, destruction or casualty, of the Property, occurs which
damage, destruction or casualty creates a loss valued in excess of ten (10%)
percent of the Contribution Value allocated to such Property, then Columbia
shall notify Inland in writing (hereinafter referred to as a “Columbia Casualty
Notice”), which Columbia Casualty Notice will include a description of the
nature, extent and estimated amount of damage or loss suffered by the affected
Property in connection with such casualty. Within ten (10) days after
receipt of the Columbia Casualty Notice, Inland shall notify Columbia, in
writing, as to whether (A) Inland will elect to proceed to Closing or (B) Inland
will elect to terminate this Agreement. If Inland does not make such written
election within the time period specified above, Inland will be deemed to have
made the election set forth in clause (A).


 


(iii)                               If Inland makes (or
is deemed to have made) the election set forth clause (A) of Section 7.1(b)(ii) above,
then this Agreement shall continue in full force and effect and the parties
shall proceed to Closing in accordance with the terms of this Agreement without
any reduction in the Contribution Value, and the Columbia shall (A) assign
to Inland at Closing all of its rights to and interest in all proceeds of
casualty insurance and business interruption and rent loss insurance relating
to the period from and after the date of Closing payable on account of such
casualty and (B) pay to Inland at Closing an amount equal to the full
amount of the deductible applicable under such insurance policies, by way of a
credit against the Contribution Value equal to the deductible, Columbia shall
cooperate reasonably with Inland before and after Closing to file and process
an insurance claim for all insured loss arising out of such casualty. Columbia
shall not settle or adjust any such insurance claim without Inland’s prior
written consent. The Columbia shall have no obligation to repair or restore any
Property other than necessary measures as may be necessary to secure any such
Property from natural elements, vandalism or further deterioration.


 


7.2                               Condemnation. If, at or prior to the time of
Closing, all or any portion of any Property shall be condemned or taken
pursuant to any governmental or other power of eminent domain, any written
notice of taking or condemnation with respect to all or any portion of a
Property is issued, or any proceedings are instituted by any governmental
authority having the power of eminent domain to take all or any portion of such
Property, then (a) Columbia shall notify Inland in writing of such action,
(b) Inland shall proceed to


 


22





















 


closing with a reduction in the Contribution Value
equal to any condemnation award previously paid to Columbia, (c) Columbia
shall assign to Inland at the time of Closing all of such Columbia’s right to
any unpaid condemnation awards and (d) Columbia shall convey the entire
Property (or remainder thereof) to Inland.


 


ARTICLE 8


 


Remedies Upon Default


 


8.1                              Time of Essence. If full performance of this
Agreement is not completed by the Closing Date, either party shall have the
right after such date to declare time to be of the essence of this Agreement by
giving notice of such election to the other party. Such notice shall contain a
declaration that time is of the essence and shall fix the time, date and place
of final settlement, which date may not be sooner than twenty (20) days nor
later than thirty (30) days following the effective date of giving such notice.


 


8.2                              Default by Inland. In the event the sale of the
Property as contemplated hereunder is not consummated due to Inland’s default
hereunder, Columbia shall be entitled, as its sole remedy, to terminate this
Agreement and receive the Deposit as liquidated damages, and not as a penalty,
for the breach of this Agreement (which shall operate to terminate this
Agreement and release Inland and Columbia from any and all liability hereunder
other than with respect to those representations, warranties and/or indemnities
which survive termination of this Agreement), it being agreed between the parties
hereto that the actual damages to Columbia in the event of such breach are difficult,
if not impossible, to determine and the Deposit and any accrued interest
thereon, is a reasonable estimate thereof.  Columbia expressly waives its right to seek compensatory
or consequential damages in the event of Inland’s default hereunder.


 


8.3                              Default by Columbia.  In the event the sale of the Property as contemplated
hereunder is not consummated due to a default by all Columbia hereunder, Inland
shall be entitled, at its election, as its sole remedy, (a) to waive such
default and close title in accordance with the terms of this Agreement without
any reduction of the Contribution Value, (b) to receive the return of the
Deposit which shall operate to terminate this Agreement and release Inland and
Columbia from any and all liability hereunder (other than with respect to those
representations, warranties and/or indemnities which survive termination of
this Agreement), or (c) to enforce specific performance of the Columbia’s
obligations to convey the Property to Inland in accordance with the terms of
this Agreement, including a claim for reasonable attorney’s fees and costs of
suit.


 


ARTICLE 9 


 


Agents and Commission


 


9.1                               Brokers. With respect to the transaction
contemplated by this Agreement, Columbia and Inland represent to the other
party that neither party has engaged a broker in regard to this transaction. In
the event that any claim for commission or finder’s fee is brought by any
person or entity as a consequence of the transaction contemplated hereby


 


23





















 


and as a result
of any action or omission of Columbia or Inland, then Columbia or Inland, as
the case may be, shall hold harmless the other party against any loss, cost or
expense of any nature, including, but not limited to, court costs and reasonable
attorney’s fees arising as a consequence of the claim for the commission or
fee. The terms of this Section 9.1 shall survive the Closing or
termination of this Agreement.


 


ARTICLE 10


 


Miscellaneous


 


10.1        Notices. Every notice or other
communication required or contemplated by this Agreement by any party shall be
in writing and shall be delivered by (i) personal delivery, (ii) internationally
recognized express courier, such as Federal Express, UPS or DHL or (iii) facsimile
with a confirmation copy sent simultaneously in the manner contemplated by
clauses (i) or (ii) of this Section 10.1, in each case addressed
to the party for whom intended at the following address:


 


	
  (i)

  	
   

  	
  If to Inland:

  	
   

  	
  Inland American

  
	
   

  	
   

  	
   

  	
   

  	
  Hyde Park Member, L.L.C.

  
	
   

  	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: G. Joseph Cosenza,

  
	
   

  	
   

  	
   

  	
   

  	
  Authorized Agent

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4935

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  With a copy to:

  	
   

  	
  Inland Real Estate Group, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
  2901 Butterfield Road

  
	
   

  	
   

  	
   

  	
   

  	
  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Robert Baum, General Counsel

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 630-218-4900 and 630-571-2360

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  If to Columbia:

  	
   

  	
  Columbia-Hyde Group, L.L.C.

  
	
   

  	
   

  	
   

  	
   

  	
  1720 Post Road

  
	
   

  	
   

  	
   

  	
   

  	
  Fairfield, Connecticut 06824

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Arthur W. Hooper, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 203-256-4019

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  If to the

  	
   

  	
   

  
	
   

  	
   

  	
  Escrow Agent:

  	
   

  	
  Chicago Title Insurance Company

  
	
   

  	
   

  	
   

  	
   

  	
  171 N. Clark Street

  
	
   

  	
   

  	
   

  	
   

  	
  Chicago, IL 60601

  
	
   

  	
   

  	
   

  	
   

  	
  Attn: Nancy Castro

  
	
   

  	
   

  	
   

  	
   

  	
  Fax No.: 312-223-2108

  



 


24





















 


or at such other address as the intended recipient
previously shall have designated by written notice to the other parties. Notice
by registered or certified mail shall be effective on the date it is officially
recorded as delivered to the intended recipient by return receipt or
equivalent, and in the absence of such record of delivery, the effective date
shall be presumed to have been the third (3rd) business day after it was
deposited in the mail. All notices and other communications required or
contemplated by this Agreement to be delivered in person or sent by courier
shall be deemed to have been delivered to and received by the addressee and
shall be effective on the date of personal delivery; notices delivered by
facsimile with simultaneous confirmation copy by registered or certified or
equivalent mail or courier shall be deemed delivered to and received by the
addressee and effective on the date sent. Notice not given in writing shall be
effective only if acknowledged in writing by a duly authorized representative
of the party to whom it was given.


 


10.2                       No Recording. Neither Columbia nor Inland shall
cause or permit this Agreement nor any memorandum hereof to be filed of record
in any office or place of public record and if Inland or Columbia shall fail to
comply with the terms hereof by recording or attempting to record the same,
such act shall not operate to bind or cloud title to the Property. If either
party or counsel acting for either party shall cause or permit this Agreement,
a copy hereof, or a memorandum hereof to be filed in an office of place of
public record, the other party, at its option, may treat such act as a default
under this Agreement.


 


10.3                       No Agency. This Agreement shall not constitute
an appointment of any of the parties hereto as the legal representative or
agent of any other party hereto nor shall any party hereto have any right or
authority to assume, create or incur in any manner any obligation or other
liability of any kind, express or implied, against, or in the name or on behalf
of, the other party hereto.


 


10.4                       Severability. In the event any provision of
this Agreement shall be determined to be invalid or unenforceable under
applicable law, all other provisions of this Agreement shall continue in full
force and effect unless such invalidity or unenforceability causes substantial
deviation from the underlying intent of the parties expressed in this Agreement
or unless the invalid or unenforceable provisions comprise an integral part of,
or in inseparable from, the remainder of this Agreement. If this Agreement
continues in full force and effect as provided above, the parties shall replace
the invalid provision with a valid provision which corresponds as far as
possible to the spirit and purpose of the invalid provision.


 


10.5                       Assignment and Succession. Except as expressly
permitted herein, no party may assign or otherwise transfer any rights,
interests or obligations under this Agreement (excluding an assignment
resulting by operation of law as a result of the merger or consolidation of any
such party) without the prior written consent of the other party, which consent
may be withheld in the sole and absolute discretion of such party for any
reason whatsoever or for no reason. This Agreement shall inure to the benefit
of the parties hereto and to their respective permitted successors and assigns.
Notwithstanding


 


25





















 


the foregoing, within ten (10) days prior
to Closing, Inland shall have the right to notify Columbia of the names of its
nominee entity taking title to the Property.


 


10.6                     Amendments and Waivers. No amendment,
modification, termination or waiver of any provision of this Agreement or
consent to any departure by any party therefrom, shall in any event be
effective without the written concurrence of the other party hereto. Any waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which it is given. No notice to or demand on any party in
any case shall entitle any other party to any other or further notice or demand
in similar or other circumstances.


 


10.7                     Further Assurances. Each of the parties hereto
agrees that, from and after the Closing, upon the reasonable request of the
other party hereto and without further consideration, such party will execute
and deliver to such other party such documents and further assurances and will
take such other actions (without cost to such party) as such other party may
reasonably request in order to carry out the purpose and intention of this Agreement
including but not limited to the effective consummation of the transactions contemplated
under the provisions of this Agreement. The provisions of this Section 10.7
shall survive Closing.


 


10.8                     Absence of Third-Party Beneficiaries. No
provisions of this Agreement, express or implied, are intended or shall be
construed to confer upon or give to any person or entity other than the parties
hereto, any rights, remedies or other benefits under or by reason of this
Agreement unless specifically provided otherwise herein, and except as so
provided, all provisions hereof shall be personal solely between the parties to
this Agreement.


 


10.9                     Governing Law; Jurisdiction. The validity,
construction, performance and enforceability of this Agreement shall be
governed in all respects by the laws of the State of New York, without
reference to the choice-of-law principles thereof. Inland and Columbia agree to
submit to personal jurisdiction in the state of New York in any action or
proceeding arising out of this Agreement. In furtherance of such agreement, the
parties hereto agree and consent that without limiting other methods of
obtaining jurisdiction, personal jurisdiction over the each party in any such
action or proceeding may be obtained within or without the jurisdiction of any
court located in NewYork and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the party by registered or certified mail to, or by personal
service at, the respective addresses listed in Section 10.1 herein (or as
otherwise established by notice to the other party), whether such address may
be within or without the jurisdiction of any such court. The parties hereto
further agree that the venue of any litigation arising in connection with this
Agreement or in respect of any of the obligations of the parties hereto under
this Agreement, shall, to the extent permitted by law, be in Fairfield County,
Connecticut.


 


10.10                 Interpretation. This Agreement, including any
exhibits, schedules and amendments, has been negotiated at arm’s length and
between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. Each party has
been


 


26





















 


represented by experienced and knowledgeable legal
counsel. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the purposes of the
parties and this Agreement.


 


10.11              Entire Agreement. The terms of this Agreement and the
other writings referred to herein (including but not limited to all schedules, exhibits,
addenda, and related agreements) and delivered by the parties hereto are
intended by the parties to be the final expression of their agreement with
respect to the subject matter hereof and may not be contradicted by evidence of
any prior or contemporaneous agreement. The parties further intend that this
Agreement, together with the exhibits and schedules hereto shall constitute the
complete and exclusive statement of its terms and shall supersede any prior agreement
with respect to the subject matter hereof.


 


10.12              Counterparts. This Agreement may be executed simultaneously
in multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. Execution
and delivery of this Agreement by exchange of facsimile copies bearing the
facsimile signature of a party hereto shall constitute a valid and binding
execution and delivery of this Agreement by such party. Such facsimile copies
shall constitute enforceable original documents.


 


10.13              Expenses. Each of the parties agrees to pay its own
expenses in connection with the transactions contemplated by this Agreement,
including without limitation legal, consulting, accounting and investment
banking fees, whether or not such transactions are consummated.


 


10.14              Consents. Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such consent shall be given in
writing.


 


10.15              Headings. The article and section headings
contained in this Agreement are for reference purposes only and will not affect
in any way the meaning or interpretation of this Agreement.


 


10.16              Waiver of Trial by Jury.  EACH PARTY HEREBY WAIVES, IRREVOCABLY AND
UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON, UNDER OR BY VIRTUE OF
OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF THE DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, THE PROPERTY, OR ANY CLAIMS, DEFENSES, RIGHTS OR SET-OFF OR OTHER
ACTIONS PERTAINING HERETO OR TO ANY OF THE FOREGOING.


 


10.17                  Confidentiality.


 


(a)                               Inland shall use is
best efforts, and cause its attorneys, representatives and consultants
(hereinafter collectively referred to as the “Inland Parties”) to use
their best efforts, to use all information, documents, surveys, leases and
other materials provided to them by the Columbia hereunder (hereinafter
collectively referred to as the “Due


 


27





















 


Diligence Materials”) exclusively for
the purpose of evaluating the merits of a possible purchase of the Property as
contemplated by this Agreement and not for any other purpose whatsoever. Inland
further agrees, except as may be required by applicable law, that it will not
disclose any Due Diligence Materials or use them to the detriment of any
Columbia.


 


(b)                               In the event this Agreement
is terminated prior to the consummation of the purchase and sale contemplated
hereunder, all Due Diligence Materials and all copies thereof will be returned
to Columbia promptly. All analyses, compilation, studies or other documents
prepared by or for Inland and reflecting any Due Diligence Material or otherwise
based thereon will be (at Inland’s option) either (i) destroyed or (ii) retained
by Inland in accordance with the confidentiality restrictions set forth in this
Section 10.17.


 


(c)                                Inland acknowledges
that the Due Diligence Materials are proprietary in nature and that Columbia
would suffer significant and irreparable harm in the event of the misuse or
disclosure of the Due Diligence Materials. Without affecting any other rights or
remedies that either party may have, Inland acknowledges and agrees that
Columbia shall be entitled to seek the remedies of injunction, specific
performance and other equitable relief for any breach or threatened breach of
the provisions of this Agreement relating to confidentiality by any Inland
Party.


 


(d)                               Inland hereby
indemnifies and holds harmless Columbia from and against all loss, liability,
claim, damage and expense arising out of any breach of this Section 10.17
by Inland or by any Inland Party.


 


(e)                                Prior to Closing
neither party shall issue any press release or public statement with respect to
the transactions contemplated by this Agreement without the prior consent of
the other party, except to the extent such release or statement is required by
law or the regulations of the Securities and Exchange Commission or the New
York Stock Exchange, and (ii) after Closing, any such release or statement
issued by Columbia or Inland shall be subject to the review and approval of the
other respective party (which approval shall not be unreasonably withheld). If
Columbia or Inland is required by law to issue a release or statement, such
party shall, at least two (2) Business Days prior to the issuance of same,
deliver a copy of the proposed release to the other party for its review.


 


(f)                                      This Section 10.17
shall survive Closing and any termination of this Agreement.


 


10.18                 Drafts not an Offer to Enter into a Legally Binding
Contract. The submission of a draft, or a marked up draft, of this Agreement by
one party to another is not intended by either party to be an offer to enter
into a legally binding contract with respect to the purchase and sale of the
Property. The parties shall be legally bound with respect to the purchase and
sale of the Property pursuant to the terms of this Agreement only if and when
the parties have been able to negotiate all of the terms and provisions of this
Agreement in a matter acceptable to each of the parties in their respective
sole discretion, including, without limitation, all of the Exhibits hereto, and
Columbia and Inland have fully executed and delivered to each other a
counterpart of this Agreement, including, without limitation, all Exhibits
hereto.


 


28





















 


10.19            Exculpation.  This
Agreement and all documents, agreement, understandings, and arrangements
relating to this transaction have been executed by the undersigned in his
capacity as Manager of Columbia-Hyde Group, L.L.C., authorized signatory for
Columbia-Hyde Group, L.L.C., and neither the officer executing this Agreement
nor the members, managers or officers of the Columbia shall be bound or have
any personal liability hereunder. Neither Columbia, on the one hand, or Inland,
on the other hand, will seek recourse or commence any action against the
officer of the other executing this Agreement or any of the members, managers
or officers of the other, or any of their personal assets, for the performance
or payment of any obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreement, understandings, arrangements and
transactions between or among the parties.


 


10.20            Intentionally Deleted.


 


10.21            Business Day. As used
herein, the term Business day means any day other than a Saturday, Sunday and
any other day which is a legal holiday in the State of Connecticut on which
offices of the State of Connecticut are routinely scheduled to be closed.


 


IN WITNESS WHEREOF, the parties hereto
have set executed or caused their duly authorized representatives to execute this
Agreement of Contribution as of the day and year first written above.


 


SIGNATURE PAGE FOLLOWS


 


29





















 


	
   

  	
  COLUMBIA:

  
	
   

  	
   

  
	
   

  	
  COLUMBIA-HYDE GROUP, L.L.C.,

  a New York limited liability company

  
	
   

  	
   

  
	
   

  	
  By: BVS Hyde, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John S. Brett

  	
   

  
	
   

  	
  Name:

  	
  John
  S. Brett

  	
   

  
	
   

  	
   

  	
  Managing Member

  	
   

  
					



 


 


	
   

  	
  INLAND:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Inland American Hyde Park Member,

  L.L.C., a Delaware limited liability

  company, sole member

  
	
   

  	
   

  
	
   

  	
  By: Inland American Hyde Park Member II,

  L.L.C., a Delaware limited liability

  company, managing member

  
	
   

  	
   

  
	
   

  	
  By: Inland American Real Estate Trust,

  Inc., a Maryland corporation, member

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  G. Joseph Cosenza,

  
	
   

  	
   

  	
  Authorized Agent

  



 


 


The undersigned hereby joins in this Agreement
solely in its capacity as Escrow Agent and solely to evidence its agreement to
be bound by the terms of Sections 1.2(b) and (d) hereof and
acknowledge receipt of the $400,000.00 Good Faith Deposit.


 


	
   

  	
  Chicago Title Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Nancy Castro, Senior
  Escrow Officer

  
	
   

  	
   

  	
  and Assistant Vice
  President

  



 


30





















EXHIBIT “A”


 


TO


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28, 2005


 


Attached


 


31





















 


EXHIBIT “B”


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED
AS OF November 28, 2005


 


 


LIST OF TENANTS/LEASES


 


Attached


 


32





















 


EXHIBIT “C”


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28, 2005


 


 


DUE
DILIGENCE CHECKLIST


 


33





















 


DUE
DILIGENCE CHECKLIST


 


The following information is to be provided
for management review


 


	
   

  	
   

  	
  2. NAME OF PROPERTY:

  	
   

  



 


	
   

  	
   

  	
  Comments

  
	
   

  	
   

  	
   

  
	
   

  	
    A.    FINANCIAL
  INFORMATION

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Leases

  	
   

  
	
   

  	
  a.

  	
  Copies
  of all leases, amendments and any guarantees

  	
   

  
	
   

  	
  We
  need within three (3) days after acceptance of agreement.

  	
   

  
	
   

  	
  b.

  	
  Copies
  of any REA, OEA, easements and encumbrances

  	
   

  
	
   

  	
  We
  need within three (3) days after acceptance of agreement.

  	
   

  
	
   

  	
  c.

  	
   Standard Lease Form

  	
   

  
	
  2.

  	
    Rent
  Roll

  	
   

  
	
   

  	
  a.

  	
  Current
  Rent Roll

  	
   

  
	
   

  	
  We
  need within three (3) days after acceptance of agreement.

  	
   

  
	
   

  	
  b.

  	
  Rent
  Roll as of December 31 of previous year

  	
   

  
	
   

  	
  c.

  	
  Rent
  Information for any tenant who occupied a space during previous year,
  including vacated tenants as of December 31 of previous year

  	
   

  
	
   

  	
  d.

  	
  Future
  rent information for any tenant to occupy a space in the current year whose
  lease was signed and finalized as of December 31 of the previous year

  	
   

  
	
   

  	
  e.

  	
  Schedule of
  rents for free rent and stopped rent periods

  	
   

  
	
  3.

  	
  Copies
  of Commencement Letters to Tenants

  	
   

  
	
  4.

  	
  Latest
  leasing status report

  	
   

  
	
  5.
  

  	
  Summary
  of recent lease transactions including rate and tenant improvement allowances

  	
   

  
	
  6.
  

  	
  Percentage
  Rent

  	
   

  
	
   

  	
  a.

  	
  List
  of current tenants on percentage rent only or percentage rent in lieu basis

  	
   

  
	
   

  	
  b.
  

  	
  Summary
  of percentage rents for the year ended December 31 of previous year and
  related support

  	
   

  
	
  7.

  	
  List
  of specialty license agreements

  	
   

  
	
  8.

  	
  Operating
  Statements

  	
   

  
	
   

  	
  a.

  	
  Prior
  five full years income/operating statements ending December 31

  	
   

  
	
   

  	
  b.

  	
  Year-to-date
  income/operating statement

  	
   

  
	
   

  	
  c.

  	
  Balance
  sheet as of December 31 of previous year

  	
   

  
	
   

  	
  d.

  	
  Current
  year/full year operating budgets

  	
   

  
	
   

  	
  e.

  	
  Following
  year budget

  	
   

  
	
  9.

  	
  General
  Ledger

  	
   

  
	
   

  	
  a.

  	
  General
  ledger detail for income statement accounts for the previous year ending
  December 31

  	
   

  
	
   

  	
  b.

  	
  Year-to-date
  general ledger statement

  	
   

  
	
  10.

  	
  Copies
  of bills for:

  	
   

  
	
   

  	
  a.

  	
  Real
  estate taxes (last three years)

  	
   

  
	
   

  	
  b.

  	
  Insurance

  	
   

  
	
   

  	
   

  	
  1)
  Liability

  	
   

  



 


34





















 


	
   

  	
   

  	
  2. NAME OF PROPERTY:

  	
   

  



 


	
   

  	
   

  	
   

  	
  Comments

  
	
   

  	
   

  	
  2)
  Property

  	
   

  
	
  11.
  

  	
  Tenant
  Reconciliations

  	
   

  
	
   

  	
  a.

  	
  Copies
  of reconciliations for CAM/taxes/insurance for year ended December 31 of
  previous year for all tenants including vacated Tenants

  	
   

  
	
   

  	
  b.

  	
  Statement
  of current monthly amounts paid by tenants for CAM/tax/insurance plus a
  year-to-date balance of amounts paid by each tenant (Tenant Ledger)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A.    FINANCIAL INFORMATION
  (continued)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12. 

  	
  Information related to
  any recent CAM or TAX Audits, including copies of reports

  	
   

  
	
  13.

  	
  Leakage
  report of reimbursable expenses by tenant

  	
   

  
	
  14.
  

  	
  Base
  rent collected in previous five calendar year period by tenant (see pg.3)

  	
   

  
	
  15.
  

  	
  Physical
  occupancy for the last five calendar years prior to purchase

  	
   

  
	
  16.
  

  	
  Receivables
  status/aging report

  	
   

  
	
  17.
  

  	
  Tenant
  sales reports for last three years (absolutely required for tenants who have kick-outs for sales or who
  paid percentage rent)

  	
   

  
	
  18.
  

  	
  Tenant
  financial statements

  	
   

  
	
  19.
  

  	
  Lease
  expirations - next three years

  	
   

  
	
   

  	
  a.

  	
  Status
  of expirations, with kick-outs, with respect to renewal possibilities

  	
   

  
	
  20.
  

  	
  Description
  and breakdown of Promotional Income and Marketing Fund

  	
   

  
	
  21.
  

  	
  Leasing
  Plan

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  B. EXPENSE INFORMATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Twelve
  months of consecutive utility bills

  	
   

  
	
   

  	
  a.

  	
  Water

  	
   

  
	
   

  	
  b.

  	
  Gas

  	
   

  
	
   

  	
  c.

  	
  Electric

  	
   

  
	
   

  	
  d.
  

  	
  Telephone
  and dedicated lines

  	
   

  
	
  2.

  	
  Copies
  of all service agreements, contracts or any leases that encumber the property

  	
   

  
	
   

  	
  a.

  	
  Fire/sprinkler/burglar
  alarms

  	
   

  
	
   

  	
  b.

  	
  Antenna
  cable/satellite dish

  	
   

  
	
   

  	
  c.

  	
  Cleaning

  	
   

  
	
   

  	
  d.

  	
  Exterminating

  	
   

  
	
   

  	
  e.

  	
  Landscaping

  	
   

  
	
   

  	
  f.

  	
  Scavenger

  	
   

  
	
   

  	
  g.

  	
  Security
  service

  	
   

  
	
   

  	
  h.

  	
  Snow
  removal

  	
   

  
	
   

  	
  i.

  	
  Towing

  	
   

  
	
   

  	
  j.

  	
  Union
  contracts

  	
   

  
	
   

  	
  k.

  	
  Elevator

  	
   

  
	
   

  	
  l.

  	
  Uniform
  rental

  	
   

  
	
   

  	
  m.
  

  	
  Water
  softeners

  	
   

  



 


35





















 


	
   

  	
  n.
  

  	
  Leasing

  	
   

  
	
   

  	
  o.
  

  	
  Management
  Agreement

  	
   

  
	
   

  	
  p.

  	
  Advertising

  	
   

  
	
   

  	
  q.

  	
  Tax
  reduction legal fees

  	
   

  
	
   

  	
  r.

  	
  Any
  other service contracts or leases not cancelable in 90 days

  	
   

  
	
  3.

  	
  Copies
  of one month’s invoices for recurring contractual operating expenses

  	
   

  
	
   

  	
  (contractual,
  landscaping, sweeping, etc.)

  	
   

  
	
  4.

  	
  Copies
  of invoices for various significant expense items (repairs, maintenance,
  contractual)

  	
   

  
	
  5.

  	
  Details
  of legal fees + any legal matters related to the property and/or tenants

  	
   

  
	
  6.

  	
  Capital
  improvements

  	
   

  
	
   

  	
  a.

  	
  Capital
  improvements over the last 36 months

  	
   

  
	
   

  	
  b.

  	
  Five-year
  capital expenditure forecast

  	
   

  
	
   

  	
  c.

  	
  Assignable
  warranties (Other than Roof)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  C.  ENVIRONMENTAL REPORTS

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Phase
  I (existing)

  	
   

  
	
  2.

  	
  Phase
  I (new)

  	
   

  
	
  3.

  	
  Other

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  D.  STAFFING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1. 

  	
  Itemized
  by position and salary

  	
   

  
	
  E.   SITE INSPECTIONS

  	
   

  
	
  1.

  	
  Inspection
  report

  	
   

  
	
  2.

  	
  Photos

  	
   

  
	
  F. 
   MISCELLANEOUS

  	
   

  
	
  1.

  	
  Code
  violations

  	
   

  
	
   

  	
  a.

  	
  Current
  and outstanding

  	
   

  
	
   

  	
  b.

  	
  Last
  24 months, with compliance

  	
   

  
	
   

  	
  c.

  	
  Contact
  municipalities as to other problems

  	
   

  
	
  2.

  	
  Copies
  of all Warranties

  	
   

  
	
   

  	
  a.

  	
  Roof

  	
   

  
	
   

  	
  b.

  	
  Construction

  	
   

  
	
  3.

  	
  Current
  tenant contact list

  	
   

  
	
  4.

  	
  Certificates
  of insurance for each tenant

  	
   

  
	
  5.

  	
  Current
  insurance policies (building and common area)

  	
   

  
	
   

  	
  a.

  	
  Property

  	
   

  
	
   

  	
  b.

  	
  Liability

  	
   

  
	
   

  	
  c.

  	
  Umbrella

  	
   

  
	
   

  	
  d.

  	
  Elevation
  Certificates for Flood Insurance

  	
   

  
	
  6.

  	
  Appraisal

  	
   

  
	
   

  	
  a.

  	
  Existing
  Third Party Appraisal

  	
   

  
	
   

  	
  b.

  	
  New
  Appraisal

  	
   

  
	
  7.

  	
  Marketing/leasing
  brochures

  	
   

  
	
  8. 

  	
  Survey

  	
   

  



 


36





















 


	
  9.

  	
  Site
  plan

  	
   

  
	
  10.

  	
  Building
  photographs and aerials

  	
   

  
	
  11.

  	
  Certificates
  of Occupancy

  	
   

  
	
  12.

  	
  Zoning
  Letter

  	
   

  
	
  13.

  	
  Building
  Plans and Specifications

  	
   

  
	
  14.

  	
  Estoppels

  	
   

  



 










* A.    13


 


	
   

  	
   

  	
  Occupancy Rate

  	
   

  	
  Effective

  	
   

  
	
  Year
  Ending

  	
   

  	
  as of

  	
   

  	
  Annual Rental PS

  	
   

  
	
  December 31

  	
   

  	
  December 31

  	
   

  	
  as of December 3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2003

  	
   

  	
  100

  	
  %

  	
  $

  	
  16.71

  	
   

  
	
  2002

  	
   

  	
  100

  	
  %

  	
  $

  	
  16.71

  	
   

  
	
  2001

  	
   

  	
  100

  	
  %

  	
  $

  	
  15.71

  	
   

  
	
  2000

  	
   

  	
  100

  	
  %

  	
  $

  	
  15.71

  	
   

  
	
  1999

  	
   

  	
  n/a

  	
   

  	
  n/a

  	
   

  



 


37





















 


EXHIBIT “D”


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED AS OF
November 28,
2005


 


Mortgage of Record from Columbia-Hyde Group, L.L.C. to Merrill Lynch
Mortgage Funding, Inc. dated September 24, 2001 recorded in the land
records of Dutchess County, New York.


 


38





















 


EXHIBIT “E”


 


TO AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28,
2005


 


FORM OF ASSIGNMENT OF LEASES


 


(Attached)


 


39





















 


ASSIGNMENT AND ASSUMPTION OF TENANT
LEASES


 


THIS ASSIGNMENT AND ASSUMPTION OF
TENANT LEASES (hereinafter referred to as the “Assignment”),
dated as of this           day
of, 2005, between Columbia Hyde Group, a New York limited liability company,
having an address at 1720 Post Road, Fairfield, CT 06824 (hereinafter referred
to as “Assignor”) and Inland American Hyde Park, L.L.C., a Delaware
limited liability company, having an address at 2901 Butterfield Road, Oak
Brook, Illinois 60523 (hereinafter referred to as “Assignee”).


 


W I T N E S
S E T H


 


WHEREAS, pursuant to a certain Agreement of
Contribution dated as of November 28, 2005 (hereinafter referred to as the
“Agreement of Contribution”), Assignor has agreed to sell to Assignee,
upon the terms, provisions and conditions set forth therein certain property
(hereinafter referred to as the “Property” located in Beekman, New York
on land described on Exhibit “A” attached to and made a part of
this Assignment, all as more particularly described in the Agreement of
Contribution; and


 


WHEREAS, in connection with the contribution of the
Property, Assignor desires to assign to Assignee all tenant leases affecting
the Property and Assignee desires to accept said assignment and assume the
obligations of Assignor under said leases upon the terms, covenants and
conditions set forth in this instrument; and


 


NOW,
THEREFORE, in
consideration of the Contribution Value paid by Assignee to Assignor for the
Property, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee covenant
and agree as follows:


 


1.                                      Assignment. Assignor hereby assigns, transfers and sets
over unto Assignee all of Assignor’s right, title and interest as lessor in and
to (a) the leases set forth on Exhibit “B” attached to and
made a part of this Assignment and any other lease, license or right of
occupancy affecting the Property, together with all amendments, extensions,
renewals and other modifications thereto (hereinafter referred to as the “Tenant
Leases”), (b) any and all rights of Assignor as lessor under the
Tenant Leases to collect rents, additional rents, escrow or security deposits,
fees, income, charges, and profits now or hereafter arising thereunder, and (c) any
guarantees of any Tenant Leases, to have and hold the same unto Assignee, its
successors and assigns.


 


2.                                     Right to Assign. 
Assignor represents and warrants that Assignor has title to and full
right to assign the Tenant Leases, and any and all rents, income and profits
and claims arising thereunder, and any guarantees of any Tenant Leases.


 


40





















 


3.                                        Assumption.   Assignee accepts said assignment and assumes all obligations as lessor
under the Tenant Leases.


 


4.                                        Indemnification by Assignor.   Assignor shall indemnify, defend and hold Assignee harmless from and
against any claim, demand, cause of action, charge, judgment, damage,
liability, cost or expense (including, without limitation, reasonable attorneys’
fees and legal costs) arising out of the Tenant Leases in connection with
events occurring prior to the date of this Assignment.


 


5.                                        Indemnification by Assignee.  
Assignee shall indemnify, defend and hold Assignor harmless from and
against any claim, demand, cause of action, charge, judgment, damage liability,
cost or expense (including, without limitation, reasonable attorneys’ fees and
legal costs) arising out of the Tenant Leases in connection with events occurring
on or after the date of this Assignment.


 


6.                                        Binding Effect. This Assignment shall be binding upon and
inure to the benefit of Assignor and Assignee and their respective heirs,   personal representatives, successors and
assigns.


 


7.                                     Limited Power of Attorney.  Assignor hereby appoints Assignee its attorney-in-fact for the limited
purpose of receiving and endorsing any checks or other payments of rent, income
or profits tendered to Assignee pursuant to the terms of the Leases or
guarantees if any checks are made payable to the order of Assignor. Assignor ratifies
any such endorsement made pursuant to this limited power of attorney.   This limited power of attorney is coupled
with an interest and is irrevocable.


 


8.                                     Governing Law.  This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.


 


41





















 


IN WITNESS WHEREOF, intending to be legally bound, the parties
have caused this instrument to be executed by their duly authorized officers on
the day and year first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  Columbia Hyde Group, LLC,

  
	
   

  	
  a New York limited liability company

  
	
   

  	
   

  
	
   

  	
  By: BVS Hyde, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Managing
  Member

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  INLAND AMERICAN HYDE PARK, L.L.C.,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  INLAND AMERICAN HYDE PARK

  MEMBER, L.L.C., a Delaware limited liability

  company, sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  INLAND AMERICAN HYDE PARK

  MEMBER II, L.L.C., a Delaware limited liability

  company, managing member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: INLAND AMERICAN REAL ESTATE

  TRUST, INC., a Maryland corporation,

  member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  G. Joseph Cosenza, Authorized
  Agent

  
					



 


42





















 


EXHIBIT “F”


 


TO AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28, 2005


 


 


FORM OF
TENANT
ESTOPPEL


 


Attached


 


43





















 


	
  To:

  	
  Inland
  Real Estate Acquisitions, Inc., and

  
	
   

  	
  Inland
  American Hyde Park, L.L.C., and

  
	
   

  	
  its
  lenders, successors and assigns

  
	
   

  	
  Attention:
  Sharon Anderson-Cox (collectively, “Inland”)

  



 


 


Re:            Lease Agreement dated
                          
(“Lease”), between [Columbia] as “Landlord”, and
                                                    ,
as “Tenant”, guaranteed by
                                       .
(“Guarantor”) for leased premises known as                           
(the “Premises”) of the property commonly known as
                          
(the “Property”).


 


1.                  Tenant hereby certifies that the following
represents with respect to the Lease are accurate and complete as of the date
hereof.


 


a.                    Dates of all amendments, letter

agreements, modifications and waivers

related to the Lease


 


b.                   Commencement Date


 


c.                    Expiration Date


 


d.                   Current Annual Base Rent


 


e.                    Fixed Rent Increases


 


f.                      Square Footage of Premises


 


g.                   Security Deposit Paid to Landlord 


 


h.                   Termination Options


 


2.                    Tenant further certifies to Purchaser that:


 


a.                    the Lease is presently in full force and
effect and represents the entire agreement between Tenant and Landlord with
respect to the Premises;


 


44





















 


b.                   the Lease has not been assigned and the
Premises have not been sublet by Tenant;


 


c.                    Tenant has accepted and is occupying the
Premises, all construction required by the Lease has been completed and any
payments, credits or abatements required to be given by Landlord to Tenant have
been given;


 


d.                   Tenant is open for business or is operating
its business at the Premises;


 


e.                    no installment of rent or other charges under
the Lease other than current monthly rent has been paid more than 30 days in
advance and Tenant is not in arrears on any rental payment or other charges;


 


f.                      Landlord has no obligation to segregate the
security deposit or to pay interest thereon;


 


g.                   Landlord is not in default under the Lease
and no event has occurred which, with the giving of notice or passage of time,
or both, could result in a default by Landlord;


 


h.                   Tenant has no existing defenses, offsets,
liens, claims or credits against the payment obligations under the Lease;


 


i.                       Tenant has not been granted any options or
rights to terminate the Lease earlier than the Expiration Date (except as
stated in paragraph l(i));


 


j.                       Tenant has not been granted any options or
rights of first refusal to purchase the Premises or the Property;


 


k.                    Tenant has not received notice of violation
of any federal, state, county or municipal laws, regulations, ordinances,
orders or directives relating to the use or condition of the Premises or the
Property;


 


l.                       no hazardous wastes or toxic substances, as
defined by all applicable federal, state or local statutes, rules or
regulations have been disposed, stored or treated on or about the Premises or
the Property by Tenant;


 


m.                 Tenant has not received any notice of a prior
sale, transfer, assignment, pledge or other hypothecation of the Premises or
the Lease or of the rents provided for therein;


 


n.                   Tenant has not filed, and is not currently
the subject of any filing, voluntary or involuntary, for bankruptcy or
reorganization under any applicable bankruptcy or creditors rights laws;


 


45





















 


o.                   Rent has been paid through
                          .


 


3.                   This certification is made with the knowledge
that Inland is about to acquire title to the Property and obtain financing
which shall be secured by a deed of trust (or mortgage), security agreement and
assignment of rents, leases and contracts upon the property. Tenant
acknowledges that Inland’s interest in the Lease (as landlord) will be assigned
to a lender as security for the loan. All rent payments under the Lease shall
continue to be paid to landlord in accordance with the terms of the Lease until
Tenant is notified otherwise in writing by Inland’s lender or its successors
and assigns. In the event that a lender succeeds to landlord’s interest under
the Lease, Tenant agrees to attorn to the lender at lender’s request, so long
as the lender agrees that unless Tenant is in default under the Lease, the
Lease will remain in full force and effect. Tenant further acknowledges and
agrees that Inland (including its lender), their respective successors and
assigns shall have the right to rely on the information contained in this
Certificate. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.


 


	
   

  	
  [                                                          
  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
  Date:
           ,2005

  



 


46





















 


GUARANTOR ESTOPPEL CERTIFICATE


 


Date:                    ,
2005


 


To:  To: Inland Real Estate Acquisitions, Inc.,
and

Inland American Hyde Park, L.L.C., and

Its lenders, successors and assigns

Attention: Sharon Anderson-Cox (collectively, “Inland”)


 


 


Re: Guaranty Agreement dated                              (“Guaranty
of Lease”) pertaining to that certain lease dated                                     between
[Columbia] as Landlord and                                                   as
Tenant for leased premises known as                                                    (the
“Premises”) located at the property commonly known as                                 (the
“Property”).


 


1.                    Guarantor certifies to Inland that: (a) the
Guaranty of Lease has been properly executed by Guarantor and is presently in
full force and effect without amendment or modification except as noted above; (b) Guarantor
has no existing defenses, offsets, liens, claims or credits against the
obligations under the Guaranty of Lease.


 


2.                    This certification is made with the knowledge
that Inland is about to acquire title to the Property and a lender is about to
provide Landlord with financing which shall be secured by a deed of trust (or
mortgage), security agreement and assignment of rents, leases and contracts
upon the Property. Guarantor further acknowledges and agrees that Inland and
its lender and their respective successors and assigns shall have the right to
rely on the information contained in this Certificate.


 


3.                    The undersigned is authorized to execute this
Guarantor Estoppel Certificate on behalf of Guarantor.


 


	
   

  	
  [                                                      ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  



 


i





















 


EXHIBIT “G”


 


TO AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28,
2005


 


 


FORM OF NOTICE TO TENANTS


 


Attached


 


ii





















 


[Columbia]


 


1720 Post Road


 


Fairfield,
Connecticut 06430


 


203-256-4000


 


203-256-4001
Facsimile


 


                 ,
2005


 


[Name
of Tenant and Address]


 


RE:                             Lease Agreement dated                         


By and between [Columbia], as Landlord,


and                                                      ,
as Tenant


Premises:                                    ,                            ,
New Jersey


 


 


Ladies and Gentlemen:


 


You are hereby informed that, effective as of
[                              ]
has conveyed title to                               located
in                               ,
New Jersey (the “Property”), and has assigned its interest as Landlord under
the lease between it and you covering certain space in the Property to [Inland]
(“Inland”). You are hereby instructed to make all future payments of rent and
other sums to                              ,
as manager for Inland.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [                                    ],
  Landlord

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  cc:

  	
   

  



 


iii





















 


EXHIBIT “H”


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED AS OF
November 28, 2005


 


 


REA
ESTOPPEL FORM


(if
applicable)


 


The undersigned                              ,
a                     corporation
(“                 ”),
is a party to the
                             
(REA) recorded on                              ,                 in
Book                ,
Page              of
the Public Records of
              
County,           (the “REA”),
between and among
           ,
                                    ,
a                      (“Developer”),
and                              ,
a                    
(corporation) (“            ”),
with respect to the                                     Shopping
Center in            ,            (the
“Shopping Center”).                                        hereby
states to Inland                                                       ,
L.L.C., having a notice address of 2901 Butterfield Road, Oak Brook, Illinois
60523, Attention: Vice President (together with its lender, and successors and
assigns, collectively referred to herein as “Inland”) as follows:


 


1.                                        The
REA has not been amended and is in full force and effect.


 


2.                                        The
REA is presently in full force and effect according to its terms.


 


3.                                                        has
neither given nor received any notice of default with respect to the REA. To
the best of                 ’s
knowledge (whereby knowledge shall be limited to the party signing this REA Estoppel
Agreement on behalf of                  ),
neither                 nor
any other party is in default under the REA.


 


4.                                       As
provided under Section            of
the                     REA,                     acknowledges
and agrees that, upon the conveyance of title to the Shopping Center to Inland,
Inland shall be entitled to all of the benefits, rights, privileges and burdens
of the Developer under the REA.


 


5.                                       The
gross leasable area of the                     store
is                                     .


 


6.                                                            ‘s
last contribution for common area maintenance costs and expenses was for the
month of                     ,
2005 in the amount of $                     .


 


This Statement does not (a) constitute a waiver of any rights          may
have under the REA, or (b) modify, alter, or change any of the terms or
conditions of the REA.


 


No officer or employee signing this Statement on behalf of          shall
have any liability as a result of having given this statement.


 


The statements contained in this Statement are not affirmative
representations, warranties, covenants or waivers, and                     shall
not be liable to Developer, Inland or any third party on account of any
information herein contained, notwithstanding the failure, for any reason, to
disclose and/or correct relevant information. Notwithstanding the preceding
sentence,                     shall
be estopped from asserting any claim or defense against Inland to the extent
such claim or assertion is based upon facts, now known to the person(s) signing
below on behalf of                     ,
which are contrary to those contained herein, if Inland has acted in reasonable
reliance upon such statements without knowledge of facts to the contrary.   This Statement is given solely for Inland’s
information and may not be relied upon by anyone other than Inland.


 


iv





















 


or
in connection with any transaction other than the transaction described above.
Capitalized terms used in this Statement, unless otherwise defined, will have
the meanings ascribed to such terms in the REA.


 


Dated as of                                                     ,
2005.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  a
                  
  (corporation)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  As
  Its:

  
					



 


v





















 


EXHIBIT “I”


 


TO
AGREEMENT OF CONTRIBUTION


 


DATED AS OF November 28, 2005


 


INTENTIONALLY DELETED


 


vi





















 


Exhibit A


 


Summary of Third-Party
Offer


 


	
  Contribution
  Value:

  	
   

  	
  $,                   .00

  
	
   

  	
   

  	
   

  
	
  Initial Deposit (Upon execution of the purchase agreement):

  	
   

  	
  $                          non-refundable
  after expiration of due diligence period

  
	
   

  	
   

  	
   

  
	
  Due Diligence Period:

  	
   

  	
  Expires                                 

  
	
   

  	
   

  	
   

  
	
  Closing:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Transfer Taxes:

  	
   

  	
  Paid by

  
	
   

  	
   

  	
   

  
	
  Mortgage Assumption fees:

  	
   

  	
  N/A

  
	
   

  	
   

  	
   

  
	
  Survey:

  	
   

  	
  Paid by

  
	
   

  	
   

  	
   

  
	
  Escrow Agent:

  	
   

  	
  Chicago Title Insurance Company

  
	
   

  	
   

  	
   

  
	
  Conditions Precedent to Closing:

  	
   

  	
  1

  	
  Receipt of an estoppel certificate from Stop & Shop.

  
	
   

  	
   

  	
  2

  	
  Receipt of waiver of the right of first opportunity from
  Stop & Shop

  
	
  Status of Title:

  	
   

  	
   

  
	
   

  	
   

  	
  Columbia shall assign and convey or cause to be assigned and conveyed
  to Inland or its assigns good marketable and insurable fee title to the
  Property free and clear of any and all mortgages, liens, encumbrances and
  easements, except:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.1
  Subject to the adjustment provided for in this Agreement, all taxes, water
  meter and water charges and sewer rents, accrued or unaccrued, fixed or not
  fixed, becoming due and payable after the Closing Date.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.2
  Zoning laws and building ordinances, resolutions, regulations and orders of
  all boards, bureaus, commissions and bodies of any municipal, county, state
  or federal government.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.3
  Covenants, restrictions and easements of record which are Permitted
  Encumbrances, provided same are not violated as of the date of Closing.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.4
  Minor variations between fences and record lines, if any, minor variations
  between record lines and tax lot lines; and minor encroachments of retaining
  walls, fences and hedges, as shown on a survey to be obtained by Inland,
  provided same do not render title unmarketable and do not and will not
  foreseeably interfere with the use of the Property or cause or constitute a
  default under any of the Leases or the Existing Mortgage.

  
	
   

  	
   

  	
   

  
	
  ___

  	
   

  	
  1.5
  the existing leases.

  



 


vii





















 


	
   

  	
   

  	
  1.6 those items shown on existing title
  policy.

  



 


viii





















 


SCHEDULE 4.2(f)


 


Security Deposits


 


None


 


ix





















 


SCHEDULE 5.1 (j)


 


Leasing Commissions Due


 


None


 


x





















 


SCHEDULE 6.5


 


Environmental Reports


 


1.                    Phase I Environmental site Assessment Report
dated January, 2001 prepared by HRP Associates, Inc.


 


2.                    Environmental Site Assessment dated June 1987
prepared by HRP Associates, Inc., 105 Lake Hill Road, Burnt Hill, NY.


 


xi





















 


Exhibit J


 


Audit Letter


 


CURRENT DATE


 


KPMG LLP 


KPMG Plaza 


303 East Wacker
Drive 


Chicago, IL 60601


 


 


Ladies
and Gentlemen:


 


We
are writing you, as the owners of THE PROPERTY’S NAME
(the “Property”) at your request, to confirm our understanding that your audit
of the Historical Summary of Gross Income and Direct Operating Expenses (“Historical
Summary”) of THE PROPERTY’S NAME for the year
ended December 31, 2004, was made for the
purpose of expressing an opinion as to whether the Historical Summary presents
fairly, in all material respects, the gross income and direct operating
expenses in conformity with the cash or
accrual  basis of accounting. In connection with your audit, we
confirm, to the best of our knowledge and belief, the following representations
made to you during the audit:


 


1.                    We
have made available to you:


 


a)              All
financial records and related data requested by you.


 


b)             All
minutes of the meetings of the board of directors, or summaries of actions of
recent meetings for which minutes have not yet been prepared


 


2.                    There
have been no:


 


a)              Instances
of fraud involving any member of management or employees who have significant
roles in internal control.


 


b)             Instances
of fraud involving others that could have a material effect on the Historical
Summary.


 


c)              Other
instances of fraud perpetuated on or within the Property.


 


d)             Communications
from regulatory agencies concerning non-compliance with, or deficiencies in, financial
reporting practices that could have a material effect on the Historical
Summary.


 


e)              Violations
or possible violations of laws or regulations, the effects of which should be
considered for disclosure in the Historical Summary or as a basis for recording
the loss contingency.


 


3.                    There
are no:


 


a)              Unasserted
claims or assessments that out lawyer has advised us are probable of assertion
and must be disclosed in accordance with the Statement of Financial Accounting
Standards (SFAS) No 5, Accounting for Contingencies.


 


b)             Material
liabilities or gain or loss contingencies (including oral and written
guarantees) that are required to be accrued or disclosed by SFAS No. 5.


 


xii





















 


c)              Material
transactions that have not been properly recorded in the accounting records
underlying the Historical Summary.


 


d)             Events
that have occurred subsequent to the balance sheet date and through the date of
this latter that would require adjustment to or disclosure in the Historical Summary.


 


4.                    The property has complied with all aspects of the contractual agreements
that would have a material effect on the Historical Summary in the event of
noncompliance.


 


5.                    All income from operating leases is included as gross income in the
Historical Summary. No other forms of revenue are included in the Historical
Summary.


 


 


Further, we confirm that we are responsible for the fair presentation in
the Historical Summary of Gross Income and Direct Operating Expenses for the
year ended December 31, 2004, in conformity with the cash or accrual  basis of accounting.


 


 


Very Truly Yours,


 


 


	
   

  	
   

  
	
  NAME, Owner

  
	
   

  
	
   

  	
   

  
	
  NAME, Property Accountant

  



 


xiii





















 


EXHIBIT K


 


JV OPERATING AGREEMENT


 


xiv