Exhibit 10.152


 


EXECUTION COPY


 


PURCHASE AND SALE AGREEMENT


 


by and
between


 


SUNTRUST BANK,

A GEORGIA BANKING CORPORATION


 


and


 


INLAND REAL ESTATE ACQUISITIONS, INC.,

AN ILLINOIS CORPORATION


 


Effective
Date: September 27, 2007


 


EXECUTION COPY


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1. CERTAIN DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE 2. SALE OF PROPERTY; PROPERTY LEASES; MASTER
  LEASE

  	
  9

  
	
  Section 2.1

  	
  Purchase and Sale

  	
  9

  
	
  Section 2.2

  	
  Master Lease

  	
  10

  
	
  Section 2.3

  	
  Relationship to Property Leases and Master
  Agreements

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3. PURCHASE PRICE

  	
  11

  
	
  Section 3.1

  	
  Earnest Money Deposit

  	
  11

  
	
  Section 3.2

  	
  Cash at Closing

  	
  11

  
	
  Section 3.3

  	
  Allocated Purchase Price

  	
  11

  
	
  Section 3.4

  	
  Independent Consideration

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4. TITLE MATTERS

  	
  12

  
	
  Section 4.1

  	
  Title to Real Property

  	
  12

  
	
  Section 4.2

  	
  Title Defects

  	
  12

  
	
  Section 4.3

  	
  Title Insurance

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5. BUYER’S DUE DILIGENCE/CONDITION OF THE
  PROPERTY

  	
  14

  
	
  Section 5.1

  	
  Buyer’s Due Diligence

  	
  14

  
	
  Section 5.2

  	
  As-Is Sale

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6. ADJUSTMENTS AND PRORATIONS; CLOSING COSTS

  	
  15

  
	
  Section 6.1

  	
  Prorations

  	
  15

  
	
  Section 6.2

  	
  Transaction Taxes and Closing Costs

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7. CLOSING

  	
  17

  
	
  Section 7.1

  	
  Closing Date

  	
  17

  
	
  Section 7.2

  	
  Title Transfer and Payment of Purchase Price

  	
  17

  
	
  Section 7.3

  	
  Seller’s Closing Deliveries

  	
  17

  
	
  Section 7.4

  	
  Buyer’s Closing Deliveries

  	
  19

  
	
  Section 7.5

  	
  Contracts, Personal Property, Intangible Property
  and Excluded Items

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8. CONDITIONS TO CLOSING

  	
  21

  
	
  Section 8.1

  	
  Conditions to Seller’s Obligations

  	
  21

  
	
  Section 8 2

  	
  Conditions to Buyer’s Obligations

  	
  21

  
	
  Section 8.3

  	
  Waiver of Failure of Conditions Precedent

  	
  22

  
	
  Section 8.4

  	
  Approvals Not a Condition to Buyer’s Performance

  	
  22

  
	
  Section 8.5

  	
  Effect of Termination with respect to One or More
  Properties

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9. REPRESENTATIONS AND WARRANTIES

  	
  23

  
	
  Section 9.1

  	
  Buyer’s Representations

  	
  23

  
	
  Section 9.2

  	
  Seller’s Representations

  	
  25

  
	
  Section 9.3

  	
  General Provisions

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10. COVENANTS

  	
  27

  



 


i

















 


	
  Section 10.1

  	
  Buyer’s Covenants

  	
  27

  
	
  Section 10.2

  	
  Seller’s Covenants

  	
  27

  
	
  Section 10.3

  	
  Mutual Covenants

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11. DEFAULT

  	
  29

  
	
   

  	
   

  
	
  ARTICLE 11.

  	
  DEFAULT

  	
  29

  
	
  Section 11.1

  	
  Buyer Default

  	
  29

  
	
  Section 11.2

  	
  Seller Default

  	
  29

  
	
  Section 11.3

  	
  Waiver of Lis Pendens

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12. CONDEMNATION/CASUALTY

  	
  30

  
	
  Section 12.1

  	
  Condemnation

  	
  30

  
	
  Section 12.2

  	
  Destruction or Damages

  	
  31

  
	
  Section 12.3

  	
  Insurance

  	
  32

  
	
  Section 12.4

  	
  Excluded Property

  	
  33

  
	
  Section 12.5

  	
  Waiver

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13. ESCROW PROVISIONS

  	
  33

  
	
   

  	
   

  
	
  ARTICLE 14. DISCLAIMERS AND WAIVERS

  	
  34

  
	
  Section 14.1

  	
  NO RELIANCE ON DOCUMENTS

  	
  34

  
	
  Section 14.2

  	
  AS-IS SALE; DISCLAIMERS

  	
  34

  
	
  Section 14.3

  	
  RELEASE FROM LIABILITY

  	
  35

  
	
  Section 14.4

  	
  Hazardous Materials

  	
  36

  
	
  Section 14.5

  	
  Environmental Requirements

  	
  37

  
	
  Section 14.6

  	
  ACKNOWLEDGMENT

  	
  37

  
	
  Section 14.7

  	
  SURVIVAL OF DISCLAIMERS

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15. MISCELLANEOUS

  	
  37

  
	
  Section 15.1

  	
  Buyer’s Assignment

  	
  37

  
	
  Section 15.2

  	
  Designation Agreement

  	
  39

  
	
  Section 15.3

  	
  Survival/Merger

  	
  40

  
	
  Section 15.4

  	
  Integration; Waiver

  	
  40

  
	
  Section 15.5

  	
  Captions Not Binding; Schedules

  	
  40

  
	
  Section 15.6

  	
  Binding Effect

  	
  40

  
	
  Section 15.7

  	
  Severability

  	
  40

  
	
  Section 15.8

  	
  Notices

  	
  40

  
	
  Section 15.9

  	
  Counterparts

  	
  42

  
	
  Section 15.10

  	
  No Recordation

  	
  42

  
	
  Section 15.11

  	
  Additional Agreements; Further Assurances

  	
  42

  
	
  Section 15.12

  	
  Construction

  	
  42

  
	
  Section 15.13

  	
  Maximum Aggregate Liability

  	
  42

  
	
  Section 15.14

  	
  Time of Essence

  	
  43

  
	
  Section 15.15

  	
  WAIVER OF JURY TRIAL

  	
  43

  
	
  Section 15.16

  	
  Facsimile and PDF Signatures

  	
  43

  
	
  Section 15.17

  	
  Radon Gas

  	
  43

  
	
  Section 15.18

  	
  Energy-Efficiency Information Brochure

  	
  43

  
				



 


ii

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Property Schedule

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(a)

  	
   

  	
  Form of Deed

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(b)

  	
   

  	
  Form of Property Lease

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(c)

  	
   

  	
  Form of Master Agreement

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(d)

  	
   

  	
  Form of Memorandum of Lease

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(e)

  	
   

  	
  Form of FIRPTA Affidavit

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(h)

  	
   

  	
  Form of Title Affidavit

  
	
   

  	
   

  	
   

  
	
  Schedule 7.3(l)

  	
   

  	
  Form of Seller’s Closing Certificate

  
	
   

  	
   

  	
   

  
	
  Schedule 7.4(j)

  	
   

  	
  Form of Buyer’s Closing Certificate

  
	
   

  	
   

  	
   

  
	
  Schedule 10.3(a)-1

  	
   

  	
  Access Agreement Addendum

  
	
   

  	
   

  	
   

  
	
  Schedule 10.3(a)-2

  	
   

  	
  Confidentiality Agreement

  
	
   

  	
   

  	
   

  
	
  Schedule X

  	
   

  	
  Additional Information with Respect to Certain
  Properties

  



 


iii

















 


EXECUTION COPY


 


PURCHASE AND SALE AGREEMENT


 


THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”) is made
to be effective as of September 27, 2007, by and between SUNTRUST BANK, a Georgia banking
corporation (“Seller”), and INLAND
REAL ESTATE ACQUISITIONS, INC., an Illinois corporation (“Buyer”).


 


W I T N E S S E T H:


 


In consideration
of the mutual covenants and agreements set forth herein the parties agree as
follows:


 


ARTICLE 1. CERTAIN DEFINITIONS


 


As used herein,
the following terms shall have the following meanings:


 


“Access
Agreement Addendum” means, collectively, the terms and conditions set forth
in Schedule 10.3(a)-l, attached hereto and incorporated herein by this
reference.


 


“Allocated
Purchase Price” is defined in Section 3.3.


 


“Business Day”
means any day other than Saturday, Sunday, any Federal holiday, or any holiday
in the State of Georgia. If any period expires on a day which is not a Business
Day or any event or condition is required by the terms of this Agreement to
occur or be fulfilled on a day which is not a Business Day, such period shall
expire or such event or condition shall occur or be fulfilled, as the case may
be, on the next succeeding Business Day.


 


“Buyer’s
Reports” means the results of any examinations, inspections,
investigations, tests, studies, analyses, appraisals, evaluations and/or
investigations previously or hereafter prepared by or for or otherwise obtained
by any Buyer’s Representatives in connection with Buyer’s Due Diligence.


 


“Buyer’s
Representatives” means Buyer, any direct or indirect owner of any
beneficial interest in Buyer, and any officers, directors, employees, agents,
representatives and attorneys of Buyer or any such direct or indirect owner of
any beneficial interest in Buyer.


 


“Closing”
means the closing of the Transaction.


 


“Closing Date”
means December 10, 2007, as the same may be extended pursuant to the
express terms of this Agreement.


 


“Closing
Documents” means all documents and instruments executed and delivered by
Buyer or Seller pursuant to the terms of this Agreement or otherwise in
connection with the Transaction or this Agreement, including, without
limitation, the documents and instruments required pursuant to the terms of Article 7.


 

















 


“Confidential
Materials” means any books, computer software, records or files (whether in
a printed or electronic format) that consist of or contain any of the
following: appraisals; budgets (other than the budget for the calendar year in
which the Closing occurs); strategic plans for any Property or Properties;
internal analyses; information regarding the marketing of any Property or
Properties for sale; submissions relating to obtaining internal authorization
for the sale of any Property or Properties by Seller, any direct or indirect
owner of any beneficial interest in Seller or any Seller Party; attorney and
accountant work product; attorney-client privileged documents; internal
correspondence of Seller, any direct or indirect owner of any beneficial
interest in Seller, any Seller Party or any of their respective affiliates and
correspondence between or among such parties; or other information in the
possession or control of Seller or any direct or indirect owner of any
beneficial interest in Seller or any Seller Party which such party deems
proprietary or confidential. Without limitation on the foregoing, the term “Confidential
Materials” also includes all books, records and other materials generated,
used or maintained by Seller or any affiliate of Seller in the conduct of its
banking and other businesses, including customer records.


 


“Confidentiality
Agreement” means that certain agreement executed by Buyer previously or
contemporaneously with this Agreement, a copy of which is attached hereto as Schedule
10.3(a)-2 and incorporated herein by this reference, the terms of which
shall continue and be fully applicable during the term of this Agreement and,
if longer, the term therein specified.


 


“Consultant
Reports” means, as of any relevant time, all reports and studies prepared
by third parties with respect to any Property or Properties that have been made
available to Buyer or any Buyer’s Representative, including all such reports
and studies on the Portfolio Website, including but not limited to
environmental reports, zoning letters, certificate of occupancy letters and
(with respect to office buildings only) property condition reports.


 


“Contracts”
means all service, supply, maintenance, utility and commission agreements, all
equipment leases, and all other contracts, subcontracts and agreements relating
to any Property or Properties and the Personal Property (including all
contracts, subcontracts and agreements relating to the construction of any
unfinished tenant improvements) to which Seller is a party and which relate to
the ownership, use or operation of any Property or Properties.


 


“Deed” is
defined in Section 7.3.


 


“deemed to know”
(or words of similar import) shall have the following meaning:


 


(a)                     Buyer shall
be “deemed to know” of the existence of a fact or circumstance to the
extent that:


 


(i)                       any Buyer’s
Representative knows of such fact or circumstance, or


 


(ii)                    such fact or
circumstance is disclosed by this Agreement, the Closing Documents executed by
Seller, the Documents, any of Buyer’s Reports, or on Schedule X hereto.


 


2

















 


(b)                    Buyer shall be
“deemed to know” that any Seller’s Warranty is untrue, inaccurate or
incorrect to the extent that:


 


(i)                       any Buyer’s
Representative has knowledge of information which is inconsistent with such
Seller’s Warranty, or


 


(ii)                    this
Agreement, the Closing Documents executed by Seller, the Documents, or any of
Buyer’s Reports contains information which is inconsistent with such Seller’s
Warranty.


 


“Deferred
Property” is defined in Section 4.2(a)(iv).


 


“Deposit”
means the sum of NINE MILLION THREE HUNDRED SEVENTY-TWO THOUSAND TWO HUNDRED
SIXTY-EIGHT AND 20/100 Dollars ($9,372,268.20), to the extent the same is
deposited by Buyer in accordance with the terms of Section 3.1
hereof.(1)


 


“Deposit
Reimbursement Amount” is defined in Section 8.5.


 


“Designated
Representatives” means Douglas Sinclair and Susan Gallienne.


 


“Documents”
means the documents and instruments applicable to any Property or Properties
that any of Seller Parties has delivered or made available to any Buyer’s
Representative on or prior to the Effective Date, or delivers or makes
available to any Buyer’s Representative prior to the Closing, or which are
otherwise obtained by any Buyer’s Representative prior to the Closing,
including, but not limited to the Consultant Reports, the Title Commitments,
the Surveys and the Title Documents, and all other documents and instruments
applicable to any Property or Properties made available on the Portfolio
Website.


 


“Due Diligence”
means examinations, inspections, investigations, tests, studies, analyses,
appraisals, evaluations and/or investigations with respect to any Property or
Properties, the Documents, and other information and documents regarding any
Property or Properties, including, without limitation, examination and review
of title matters, applicable land use and zoning Laws and other Laws applicable
to any Property or Properties, the physical condition of any Property or
Properties, and the economic status of any Property or Properties.


 


“Effective Date”
means September 27, 2007, the effective date of this Agreement.


 


“Election
Notice” is defined in Section 12.2.


 


“Environmental
Requirements” is defined in Section 14.5.


 






(1)                     The
Property Schedule includes a column entitled “Allocated Deposit.” Such column
is provided solely at the request of Buyer as a convenience for Buyer for
administrative purposes. The inclusion of such column in the Property Schedule
is not intended in any way to provide for an allocation of the Deposit among
the Properties, and there shall be no allocation of the Deposit (or any
allocation of liquidated damages) among the Properties for any reason, other
than as expressly provided with respect to a Deferred Property, if any, in Section 4.2(a)(iv) and
with respect to any Deposit Reimbursement Amount pursuant to Section 8.5.


 


3

















 


“Escrow Agent”
means First American Title Insurance Company, in its capacity as escrow agent.


 


“Escrow
Deposits” is defined in Article 13.


 


“Excluded Items”
means (i) the Personal Property, the Intangible Property, the Contracts,
and the Existing Leases, if any, and (ii) without limitation on the
foregoing, all trade fixtures, equipment, furniture, furnishings, supplies,
records, documents, cash, coin, and other items of moveable personal property
relating to the operation of Seller’s business, including, without limitation,
all safe deposit boxes, modular vaults, vault doors, safes, Seller
identification signage, automated teller machines (“ATM”) connected to
or located within any Property or situated as freestanding structures on any
Property and ATM equipment, telecommunication equipment, security systems and
equipment, satellite dishes and antennas, computers, computer terminals and
computer equipment, and any office equipment (whether leased or owned) located
in the Improvements. “Excluded Items” shall include any of the foregoing
notwithstanding that such item constitutes real property or an interest in real
property under applicable State law. Notwithstanding the foregoing, “Excluded
Items” does not include heating, ventilation and air conditioning systems,
elevators, plumbing and plumbing fixtures, and other mechanical and electrical
equipment or fixtures which are necessary for the proper functioning of a
building (as opposed to equipment and fixtures which serve the business
conducted in any Property, including branch banks or banking offices).


 


“Excluded
Property” means any Property with respect to which this Agreement has been
terminated or deemed terminated (i) by Buyer under Section 4.2(a)(ii) or
Section 8.2(a),or (ii) by Buyer or Seller under Section 12.1
or Section 12.2. Any Property which becomes an Excluded Property
under Section 4.2(a)(ii) is subject to the terms of Section 4.2(a)(iv).


 


“Existing
Leases” means all leases (if any) for tenants of any Property or Properties
on the Closing Date. Immediately upon Closing, any such Existing Leases will
become subleases under the Property Leases. Seller agrees to provide Buyer with
copies of the written Existing Leases as promptly as practical following the
full execution of this Agreement and Buyer’s funding of the Deposit.


 


“Florida Assignment”
is defined in Section 2.1.


 


“Florida
Expenses” is defined in Section 2.1.


 


“Florida
Property” is defined in Section 2.1.


 


“Florida
Subsidiary” is defined in Section 2.1.


 


“GAAP”
means generally accepted accounting principles in the United States of America
in effect from time to time.


 


“Governmental
Authority” means any United States national, federal, state or local
government, governmental regulatory or administrative authority, agency,
instrumentality or commission or any court, tribunal, or judicial or arbitral
body or self-regulated entity.


 


4

















 


“Hazardous
Materials” is defined in Section 14.4.


 


“Inland Company”
is defined in Section 15.1.


 


“Intangible
Property” means, collectively, Seller’s interest in and to all of the
following:


 


(a)                     The
Contracts; and


 


(b)                    To the extent
that the same are in effect as of the Closing Date, any licenses, permits and
other written authorizations necessary for the use, operation or ownership of
any Property or Properties, together with any tradenames, trademarks or logos
relating to Seller; and


 


(c)                     Any
guaranties and warranties in effect with respect to any Property or Properties
or the Personal Property as of the Closing Date.


 


“Law” means
any municipal, county, State or Federal statute, code, ordinance, law, rule or
regulation. “Laws” means all municipal, county, State or Federal
statutes, codes, ordinances, laws, rules or regulations.


 


“Liabilities”
means, collectively, any and all problems, conditions, losses, costs, damages,
claims, causes of action, liabilities, expenses, demands or obligations of any
kind or nature whatsoever.


 


“Lien”
means any lien, mortgage, pledge, security interest, claim, option, right of
first offer or refusal, charge, conditional or installment sale contract,
claims of third parties of any kind or other encumbrances.


 


“Liquidated
Damages Amount” is defined in Section 11.2.


 


“Material
Adverse Change” means a reduction in the rating of Seller’s long-term
unsecured noncredit-enhanced debt securities to a rating of lower than Aa2 by
Standard & Poor’s Corporation or to a rating lower than AA- by Moody’s
Investor Services, Inc.


 


“Master
Agreement” is defined in Article 2.


 


“Material
Casualty” is defined in Section 12.2.


 


“Non-Material
Casualty” is defined in Section 12.2.


 


“Owner’s Title
Policy” means an ALTA owner’s title insurance policy for each Property (or
such other comparable form of title insurance policy as is available in the
State in which the applicable Property is located), in the amount of the Allocated
Purchase Price for such Property.


 


“Permitted
Exceptions”, with respect to any Property, means and includes all of the
following: (a) applicable Laws including zoning and building ordinances
and land use


 


5

















 


regulations, (b) any
deed, easement, restriction, covenant or other matter affecting title to such
Property caused or created by Seller and approved by Buyer in accordance with
the terms of Section 4.2(b), (c) such state of facts as are
disclosed on the Surveys, (d) the Lien of taxes and assessments not yet
due and payable, (e) any exceptions caused by any Buyer’s Representative, (f) such
other exceptions as are set forth in the Title Commitment for such Property,
including all Title Documents, (g) the rights of the tenants under the
Existing Leases, if any, (h) any matters about which Buyer knows or is
deemed to know as of the Effective Date, and (i) any matters deemed to
constitute additional Permitted Exceptions under Section 4.2(a) hereof.
Notwithstanding any provision to the contrary contained in this Agreement or
any of the Closing Documents, to the extent that any of the Permitted
Exceptions are omitted by Seller in the Deed for any Property (whether through
oversight of the parties or at Buyer’s request), such omission shall not give
rise to any liability of Seller, irrespective of any covenant or warranty of
Seller that may be contained in the Deed (which provisions shall survive the
Closing and not be merged therein).


 


“Permitted
Inland Affiliate” is defined in Section 15.1.


 


“Personal
Property” means, collectively, (a) all tangible personal property
owned by Seller that is located on the Properties and used in the ownership,
operation and maintenance of the Properties, and (b) all books, records
and files of Seller relating to the Properties or the Existing Leases.


 


“Portfolio
Website” mean, collectively, (i) that certain electronic data site and
internet website (including all data and information contained therein)
established for the Properties and certain other properties by STRH at
www.peracon.com, Username: jinland, Password: jinland7, and (ii) the Title
Company Website, in each case as it has been or may hereafter be updated from
time to time.


 


“Properties”
means, collectively, each and every Property, but excluding any Property which
becomes an Excluded Property in accordance with this Agreement. (Where the
context requires or permits, the term “Properties” also may mean more
than one Property but not necessarily every Property, but in all cases shall be
construed consistent with the intent that Seller shall sell to Buyer and lease
back from Buyer, and Buyer shall purchase from Seller and lease back to Seller,
each and every Property, other than any Property which becomes an Excluded
Property in accordance with this Agreement.)


 


“Property”
means each parcel or group of contiguous parcels of land described as a
separate “Property” in the Property Schedule, together with all buildings,
improvements and fixtures located thereon and owned by Seller as of the Closing
Date and all right, title and interest, if any, that Seller may have in and to
all rights, privileges and appurtenances pertaining thereto including all of
Seller’s right, title and interest, if any, in and to all rights-of-way, open
or proposed streets, alleys, easements, strips or gores of land adjacent
thereto, and together with all other rights running with such land which, under
applicable State law, constitute real property or an interest in real property;
provided, however, that the term “Property” shall not
include any Excluded Items, whether or not such Excluded Items constitute real
property or interests in real property under applicable State law; provided,
further, that in the event of any condemnation or casualty that occurs
after the Effective Date, the term “Property” shall not include any of
the


 


6

















 


foregoing that is
destroyed or taken as a result of any such condemnation proceeding prior to
Closing.


 


“Property Lease”
is defined in Article 2.


 


“Property
Material Adverse Effect” is defined is Section 9.2(c).


 


“Property Pool”
means each of the ten (10) pools of Properties, into which the Properties
are divided and which are identified on the Property Schedule. Each such pool
of Properties shall be subject to a separate and independent Master
Agreement(2).


 


“Property
Schedule” means Schedule 1 attached hereto and incorporated herein
by this reference. The Property Schedule identifies each Property by Property
identification number and street address, city, county and state. In addition,
the Property Schedule sets out for each Property (1) the Property Pool
identification number for each Property, (2) the Allocated Purchase Price
for such Property, (3) the Annual Basic Rent for each Property during the
first lease year under the Property Lease for such Property, and (4) the
Title Commitment number for each Property, including the current posting date
of such Title Commitment as it appears on the Title Company Website. For
purposes of this Agreement, the legal description of each Property shall,
except as otherwise noted in the Property Schedule, be the legal description
for the Property contained in the Title Commitment for such Property identified
in the Property Schedule.


 


“Property
Threshold Amount” is defined in Section 12.2.


 


“Purchase Price”
means the sum of THREE HUNDRED SEVENTY-FOUR MILLION EIGHT HUNDRED NINETY
THOUSAND SEVEN HUNDRED TWENTY-EIGHT AND 00/100 Dollars ($374,890,728).


 


“Realization
Costs” is defined in Section 12.2.


 


“Release”
is defined is Section 10.3(b).


 


“Remove”
with respect to any exception to title means that Seller causes the Title
Company to remove or affirmatively insure over the same as an exception to the
Owner’s Title


 






(2)                     The
Property Schedule includes a column entitled “Property Pool”. The allocation of
Properties into a specific Property Pool may at the election of either party be
subject to revision. Should the parties elect to revise the Property Schedule,
such revision will be finally determined by the parties in their reasonable
discretion, by October 5, 2007. Should such agreement be reached by October 5,
2007, the parties will enter into and execute an amendment to this Agreement to
amend the Property Schedule accordingly. The allocation of Properties into a
specific pool shall be determined in a way that assures each Property Pool is
reasonably similar to each other Property Pool with respect to: (i) the
amount of Properties in each Property Pool and (ii) the amount of rent
generated by the Properties in each Property Pool. The designation of Property
Pools is provided solely for administrative purposes and to determine which
Master Agreement shall govern each Property. The inclusion of the “Property
Pool” column in the Property Schedule is not intended in any way to provide for
an allocation of the Deposit among the Properties in the separate pools, and
there shall be no allocation of the Deposit (or any allocation of liquidated
damages) among the Property Pools or the Properties for any reason, other than
as expressly provided with respect to a Deferred Property, if any, in Section 4.2(a)(iv) and
with respect to any Deposit Reimbursement Amount pursuant to Section 8.5.


 


7

















 


Policy for the benefit of
Buyer, without any additional cost to Buyer, whether such removal or insurance
is made available in consideration of payment, bonding, indemnity of Seller or
otherwise.


 


“Reporting
Requirements” is defined in Section 15.2.


 


“Required Cure Exceptions”
means, collectively, the following:


 


(a)                     any Title
Objections to the extent (and only to the extent) that the same (i) have
not been caused by any of Buyer’s Representatives, and (ii) constitute any
of the following:


 


(A)                Liens evidencing
monetary encumbrances (other than liens for non-delinquent real estate taxes
and assessments) (“Monetary Liens”) that are or have been created as a
result of the intentional acts or omissions of Seller or its agents and
affiliates; or


 


(B)                  Liens or
encumbrances other than Monetary Liens created by Seller or its agents and
affiliates after the Effective Date in violation of Section 4.2(b).


 


(b)                    any exception
to title that Seller has specifically agreed in writing to Remove pursuant to
the terms of Section 4.2(a)(ii).


 


“Seller Parties”
means and includes, collectively, (a) Seller; (b) its counsel; (c) STRH;
(d) any officer, director, employee, or agent of Seller, its counsel or
STRH; and (e) any other entity or individual affiliated or related in any
way to any of the foregoing.


 


“Seller’s
knowledge” or words of similar import shall refer only to the actual
knowledge of the Designated Representatives and shall not be construed to refer
to the knowledge of any other Seller Party, or to impose or have imposed upon
the Designated Representatives any duty to investigate the matters to which
such knowledge, or the absence thereof, pertains, including, but not limited
to, the contents of the files, documents and materials made available to or
disclosed to Buyer or the contents of files maintained by the Designated
Representatives. There shall be no personal liability on the part of the
Designated Representatives arising out of any of Seller’s Warranties.


 


“Seller’s
Warranties” means Seller’s representations and warranties set forth in Section 9.2
and the Closing Documents executed by Seller, as such representations and
warranties may be deemed modified or waived by Buyer pursuant to the terms of
this Agreement.


 


“State”
means, with respect to each Property, the state in which the Property is
located, provided that in the case of any Property located in the District of
Columbia, the term “State” means the District of Columbia.


 


“STRH”
means SunTrust Robinson Humphrey, a division of SunTrust Capital Markets, Inc.


 


8

















 


“Substitute
Property” is defined in Section 8.5. “Substitute Properties”
means, collectively, more than one Substitute Property.


 


“Surveys”
means those surveys of the Properties previously made available to Buyer by any
Seller Party or on the Portfolio Website and any other surveys obtained for the
benefit of Buyer.


 


“Title
Commitment” means, for each Property as of any relevant time, the
commitment to issue an Owner’s Title Policy with respect to such Property, a
copy of which has been made available to Buyer on the Portfolio Website.


 


“Title Company”
means First American Title Insurance Company.


 


“Title Company
Website” means the electronic data site and internet website maintained by
the Title Company (including all data and information contained therein) with
respect to the Properties and certain other properties, at
http://eaglepro.firstam.com, Username: jinland, Password: jinland7, as it has
been or may hereafter be updated from time to time.


 


“Title
Documents” mean, for each Property as of any relevant time, all recorded
documents referred to on Schedule B of the Title Commitment as exceptions to
coverage and any other recorded documents relating to such Property that have
been made available to Buyer on the Portfolio Website.


 


“Title
Objections” means any exceptions to title to which Buyer is entitled to
object and timely objects in accordance with the terms of Section 4.2(a)(i).


 


“Transaction”
means, collectively, the purchase and sale of the Properties, the lease of the
Properties pursuant to the Property Leases and the Master Agreements, and all
other transactions contemplated in this Agreement.


 


ARTICLE 2.
SALE OF PROPERTY; PROPERTY LEASES; MASTER LEASE


 


Section 2.1    Purchase and Sale. Seller agrees to
sell, transfer and assign and Buyer agrees to purchase, accept and assume,
subject to the terms and conditions set forth in this Agreement and the Closing
Documents, all of Seller’s right, title and interest in and to the Properties.
Notwithstanding the immediately preceding sentence, at Seller’s election, with
respect to any or all of the Properties located in the State of Florida, Seller
may convey title to such Properties free and clear of any mortgages and secured
debt financing to newly-formed, wholly-owned, limited liability company
subsidiaries of Seller (each a “Florida Subsidiary”) at least two (2) days
prior to Closing (and, in any event, no Florida Subsidiary will receive
Properties which are in separate Property Pools unless the parties agree
otherwise in writing) and then assign to Buyer at Closing all of the membership
interests in the Florida Subsidiary (“Florida Assignment”). In such
case, no further real property transfer of any Properties located in the State
of Florida (the “Florida Properties”) by the Florida Subsidiaries shall
be required. Buyer agrees to cooperate with Seller in connection with this
proposed structure relating to the Properties located in the State of Florida, provided
that (i) Seller shall bear any and all costs, expenses and fees in
connection with such proposed structure (“Florida Expenses”), (ii) no
delay


 


9

















 


in the Closing shall
occur as a result thereof and (iii) Buyer and Seller shall share equally
in any transfer tax or document stamp savings from such proposed structure provided
that such sharing will be net of all Florida Expenses incurred by Seller,
with Seller providing Buyer with a credit against the Allocated Purchase Price
for the Florida Properties at Closing. In connection with this proposed
structure, at Closing, Seller shall provide, with respect to the Florida
Subsidiaries, an indemnification against liabilities incurred or assumed by the
Florida Subsidiaries accruing during the period prior to Closing, in form and substance
reasonably satisfactory to Buyer. In the event that it is determined after
Closing that any transfer tax or document tax is due in connection with the
Florida Assignment, Buyer and Seller shall each be responsible to pay such
transfer tax or document stamp tax up to the amount of their respective savings
referenced above and Seller shall be responsible for, the payment of any
additional tax, interest or other penalties related thereto and Seller agrees
to indemnify Buyer for any costs, expenses, claims or litigations incurred by
Buyer in excess of Buyer’s share of the savings as provided above.


 


Section 2.2    Master Lease. Commencing on the
Closing Date, Buyer, as landlord, shall lease to Seller, as tenant, the
Properties pursuant to (i) a separate lease agreement for each Property in
the form attached as Schedule 7.3(b) hereto (individually a “Property
Lease” and, collectively, the “Property Leases”) and (ii) a
separate Master Agreement Regarding Leases (each a “Master Agreement”)
for each Property Pool in the form attached as Schedule 7.3(c) hereto.
Each Property Pool will be subject to a separate Master Agreement which Master
Agreement shall be separate and independent from each other Master Agreement in
respect of a different Property Pool. Each Property Lease shall have an initial
term of ten (10) years, provided that if the Closing Date is not the first
day of a month, the first lease year of the initial term of each Property Lease
shall include the partial month in which Closing occurs and the next full
twelve (12) months. Seller shall have the right to renew the term of each
Property Lease for up to forty (40) additional years (i.e., a first renewal
term of 10 years and 6 additional renewal terms of 5 years each). The Annual
Basic Rent for the first lease year under each Property Lease shall be the
amount set forth as “Annual Rent Year 1” in the Property Schedule. Annual Basic
Rent under each Property Lease shall be increased by 1.5% annually during the
Initial Term and each of the first three Renewal Terms. Annual Basic Rent
during each Renewal Term thereafter shall be the fair market rental value of
the Properties at the commencement of such Renewal Term and shall be increased
by 1.5% annually during the remainder of such Renewal Term. (The terms “Annual
Basic Rent,” “Initial Term” and “Renewal Term” have the same meanings in this
Agreement as in the form of Property Lease attached as Schedule 7.3(a).)
In the event of any conflict or inconsistency between the terms of this
Agreement and the terms of the Property Leases and the Master Agreements which
relate to the period from and after Closing, the Property Leases and the Master
Agreements shall control, including without limitation with respect to the
environmental indemnities made by Seller, as tenant, under Section 5.3 of
each Property Lease.


 


Section 2.3    Relationship to Property Leases and
Master Agreements. Notwithstanding anything to the contrary contained in
this Agreement, nothing contained in this Agreement shall in any way reduce or
limit Seller’s obligations, or release Seller in any way from any liability, or
excuse Seller in any way from performance, arising from and after Closing in
its capacity as tenant under the Property Leases or the Master Agreements.


 


10

















 


ARTICLE 3. PURCHASE PRICE


 


In consideration of the
sale of the Properties to Buyer, Buyer shall pay to Seller an amount equal to
the Purchase Price, as prorated and adjusted as set forth in Article 6.
Section 7.2, or as otherwise provided under this Agreement. The
Purchase Price shall be paid as follows:


 


Section 3.1    Earnest Money Deposit.


 


(a)       Payment of Deposit. Within three (3) Business
Days after the Effective Date and as a condition precedent to the effectiveness
of this Agreement, Buyer shall pay the Deposit to Escrow Agent.


 


(b)       Applicable Terms; Failure to Make
Deposit. The Deposit shall be paid to Escrow Agent in immediately available
funds by wire transfer. Except as expressly otherwise set forth herein, the
Deposit shall be applied against the Purchase Price on the Closing Date and
shall otherwise be held and delivered by Escrow Agent in accordance with the
provisions of Article 13. Notwithstanding any provision in this
Agreement to the contrary, if Buyer fails to timely make the Deposit as
provided herein, Seller shall have the right to terminate this Agreement by
written notice to Buyer given at any time prior to the time Buyer makes the
Deposit, and following any such termination the parties shall have no further
rights or obligations hereunder except for obligations which expressly survive
the termination of this Agreement.


 


Section 3.2    Cash at Closing. On the Closing Date,
Buyer shall pay to Seller through Escrow Agent an amount equal to the Purchase
Price in immediately available funds by wire transfer as more particularly set
forth in Section 7.2, as prorated and adjusted as set forth in Article 6.
Section 7.2, or as otherwise provided under this Agreement.


 


Section 3.3    Allocated Purchase Price. Seller and
Buyer hereby agree that the Purchase Price shall be allocated among the
Properties as set forth on the Property Schedule (the portion of the Purchase
Price so allocated to each Property being identified as “Sales Price” in the
Property Schedule and referred to herein as the “Allocated Purchase Price”
for such Property) for federal, state, local and foreign tax purposes in
accordance with applicable U.S. federal tax Laws and analogous provisions of
foreign, state or local Laws. Seller and Buyer shall file all tax returns and related
tax documents consistent with the allocations set forth on the Property
Schedule as such allocations may be adjusted by agreement of Seller and Buyer.


 


Section 3.4    Independent Consideration. If Buyer
is entitled to have the Deposit returned to it pursuant to any provision of
this Agreement, then One Hundred Dollars
($100.00) of the Deposit shall nevertheless be paid to Seller as
good and sufficient consideration for entering into this Agreement. In
addition, Seller and Buyer acknowledge and agree that Buyer will devote
internal resources and incur expenses in evaluating the Properties and Seller
will devote internal resources and incur expenses in connection with this
Agreement, and that such efforts and expenses of Buyer and Seller also
constitute good, valuable and sufficient consideration for this Agreement.


 


11

















 


ARTICLE 4. TITLE MATTERS


 


Section 4.1    Title to Real Property. Seller has
made available to Buyer pursuant to the Portfolio Website copies of the Title
Commitments, the Title Documents, and the Surveys for each of the Properties.


 


Section 4.2    Title Defects.


 


(a)       Buyer’s Objections to Title; Seller’s
Obligations and Rights.


 


(i)        Buyer acknowledges and agrees that all
of the Title Documents other than Required Cure Exceptions are Permitted
Exceptions. Buyer shall have the right to object in writing to any title
matters which are not Permitted Exceptions and which materially and adversely
affect Buyer’s title to any Property that may first appear on any supplemental
title reports or updates to the Title Commitment or Survey made available to
Buyer or obtained by Buyer after the Effective Date so long as such objection
is made by Buyer within five (5) Business Days after Buyer becomes aware
of the same (but, in any event, prior to the Closing Date).


 


(ii)       To the extent that any Title Objection
does not constitute a Required Cure Exception, Seller may elect (but shall not
be obligated) to Remove or cause to be Removed any such Title Objection and
Seller shall notify Buyer in writing within five (5) Business Days after
receipt of Buyer’s notice of Title Objections (but, in any event, prior to the
Closing Date) whether Seller elects to Remove the same. Failure of Seller to
respond in writing within such period shall be deemed an election by Seller not
to Remove such Title Objections. Any Title Objection that Seller elects in
writing to Remove shall be deemed a Required Cure Exception. If Seller elects
not to Remove any Title Objection, then, within five (5) Business Days
after Seller’s election (but, in any event, prior to the Closing Date), Buyer
may elect in writing either (A) to terminate this Agreement with respect
to the applicable Property, in which event such Property shall be an Excluded
Property and the parties shall have no further rights or obligations hereunder
with respect to such Excluded Property except for obligations which expressly
survive the termination of this Agreement, or (B) waive such Title
Objection and proceed to the Closing. Failure of Buyer to respond in writing
within such period shall be deemed an election by Buyer to waive such Title
Objection and proceed to the Closing. Any Title Objection so waived (or deemed
waived) by Buyer shall be deemed to constitute a Permitted Exception and the
Closing shall occur as herein provided without any reduction of or credit
against the Purchase Price.


 


(iii)      If this Agreement is not terminated as to
a Property by Buyer in accordance with the provisions hereof, Seller shall, at
the Closing, Remove or cause to be Removed any Required Cure Exceptions with
respect to such Property. Seller may use any portion of the Purchase Price to
satisfy any Required Cure Exceptions that exist as of the Closing Date,
provided Seller shall cause the Title Company to Remove the same.


 


(iv)      Seller shall be entitled to a reasonable
adjournment of the Closing (not to exceed thirty (30) days) for the purpose of
the Removal of any exceptions to title. Further, if Buyer elects to terminate
this Agreement with respect to any Property pursuant to


 


12

















 


clause (A) of Section 4.2(a)(ii).
then Seller may elect, within ten (10) days after receipt of such notice
of termination, to adjourn the Closing for up to thirty (30) days solely with
respect to such Property (in such case, a “Deferred Property”) for the
purpose of Removing the applicable Title Objections with respect to such
Deferred Property, in which event, the Parties shall proceed to Closing with
respect to all other Properties, the Allocable Deposit shall be retained by
Escrow Agent as earnest money solely with respect to the Deferred Property
(with the balance of the Deposit to be applied at the initial Closing as
provided herein) and, if Seller is able to Remove the applicable Title
Objections with respect to the Deferred Property, then the Deferred Property
shall not be an Excluded Property and the parties shall conduct a separate
closing with respect to the Deferred Property. At any time after the initial
Closing Date, to the extent the Closing with respect to a Deferred Property has
been adjourned for up to thirty (30) days, the maximum aggregate liability of
the Seller Parties, and the maximum aggregate amount which may be awarded to
and collected by Buyer, solely in connection with any such Deferred Property
during such thirty (30) days and until the time of Closing with respect to such
Deferred Property, shall be no more than the greater of (i) One Hundred
Thousand Dollars ($100,000) or (ii) the Allocable Deposit for such
Deferred Property. (“Allocable Deposit” means, for any Deferred
Property, a portion of the Deposit equal to 2.5% of the Allocated Purchase
Price for such Deferred Property).


 


(b)       No New Exceptions. From and after
the Effective Date, and except with respect to easements and other matters
necessary for the operation of any Property, Seller shall not execute any deed,
easement, restriction, covenant or other matter affecting title to any Property
unless Buyer has received a copy thereof and has approved the same in writing.
If Buyer fails to object in writing to any such proposed instrument within five
(5) Business Days after receipt of the aforementioned notice, Buyer shall
be deemed to have approved the proposed instrument. Buyer’s consent shall not
be unreasonably withheld, conditioned or delayed with respect to any such
instrument that is proposed by Seller.


 


Section 4.3    Title Insurance. If Buyer elects to
obtain title insurance with respect to the Properties, Buyer shall be required
to obtain such title insurance from the Title Company. If Buyer makes such
election, then at the Closing, the Title Company shall issue an Owner’s Title
Policy to Buyer with respect to each Property, insuring that fee simple title
each Property is vested in Buyer subject only to the Permitted Exceptions.
Buyer shall be entitled to request that the Title Company provide such
endorsements (or amendments) to the Owner’s Title Policy as Buyer may
reasonably require, provided that (a) such endorsements (or amendments)
shall be at no cost to, and shall impose no additional liability on, Seller, (b) Buyer’s
obligations under this Agreement shall not be conditioned upon Buyer’s ability
to obtain such endorsements and, if Buyer is unable to obtain such
endorsements, Buyer shall nevertheless be obligated to proceed to close the
Transaction without reduction of or set off against the Purchase Price, and (c) the
Closing shall not be delayed as a result of Buyer’s request.


 


13

















 


ARTICLE 5. BUYER’S DUE
DILIGENCE/CONDITION OF THE PROPERTY


 


Section 5.1    Buyer’s Due Diligence.


 


(a)       Access to Documents and the Properties.
Commencing prior to the Effective Date and continuing to the Closing Date,
Seller has made and will continue to make or cause to be made available to
Buyer on the Portfolio Website, Consultant Reports, Title Commitments, Title
Documents, Surveys and any other Documents located on the Portfolio Website. In
addition, commencing prior to the Effective Date and continuing to the Closing
Date, Seller has allowed and will continue to allow Buyer’s Representatives
access to the Properties upon the terms and conditions set forth in the Access
Agreement Addendum. The terms and conditions of the Access Agreement Addendum,
including without limitation all indemnification provisions and insurance
requirements, are incorporated in this Agreement in their entirety and shall
govern access to and inspection of the Properties by Buyer and Buyer’s
Representatives.


 


(b)       Limit on Government Contacts.
Seller shall be entitled to have a representative present when any Buyer’s
Representatives has any contact with any governmental official or
representative relating to the Properties. Where practical, Buyer shall provide
reasonable advance notice to Seller of contact with any governmental official
or representative relating to the Properties, so as to enable Seller to make a
determination of whether it wishes to be present for such contact.


 


(c)       Other Inspection Obligations of Buyer.
All inspections by Buyer’s Representatives shall be at Buyer’s sole expense and
shall be in accordance with applicable Laws, including without limitation, Laws
relating to worker safety and the proper disposal of discarded materials. Buyer
shall cause each of Buyer’s Representatives to be aware of the terms of this
Agreement as it relates to the conduct of Buyer’s inspections and the
obligations of such parties hereunder.


 


(d)       Waiver and Release. Buyer, for
itself and all of the other Buyer’s Representatives, hereby waives and releases
Seller and each of Seller Parties from all claims resulting directly or
indirectly from access to, entrance upon, or inspection of any Property or
Properties by Buyer’s Representatives.


 


Section 5.2    As-Is Sale. Buyer acknowledges and
agrees as follows:


 


(a)       Buyer has previously conducted, or has
waived its right to conduct, such Due Diligence as Buyer has deemed or shall
deem necessary or appropriate. Buyer acknowledges and agrees that its
obligation to perform under this Agreement is not contingent upon any further
Due Diligence.


 


(b)       The Properties shall be sold, and Buyer
shall accept possession of the Properties on the Closing Date, “AS IS, WHERE
IS, WITH ALL FAULTS”, with no right of setoff or reduction in the Purchase
Price.


 


14

















 


(c)       Except for Seller’s Warranties, none of
Seller Parties have or shall be deemed to have made any verbal or written
representations, warranties, promises or guarantees (whether express, implied,
statutory or otherwise) to Buyer with respect to any Property or Properties,
any matter set forth, contained or addressed in the Documents (including, but
not limited to, the accuracy and completeness thereof), the adequacy of the
design or construction of any improvements, or the results of Buyer’s Due
Diligence.


 


(d)       Buyer expressly understands and
acknowledges that it is possible that unknown Liabilities may exist with
respect to the Properties and that Buyer explicitly took that possibility into
account in determining and agreeing to the Purchase Price, and that a portion
of such consideration, having been bargained for between parties with the
knowledge of the possibility of such unknown Liabilities shall be given in
exchange for a full accord and satisfaction and discharge of all such
Liabilities.


 


(e)       Buyer understands that Seller, as tenant
under each Property Lease, will provide Buyer, as landlord thereunder, with
environmental indemnities as set forth in Section 5.3 of such Property
Lease.


 


ARTICLE 6. ADJUSTMENTS AND
PRORATIONS; CLOSING COSTS


 


Section 6.1    Prorations. The operating and utility
expenses associated with the Properties and the real estate taxes and
assessments levied against the Properties shall not be prorated at Closing.
Seller shall be responsible for the payment of such operating and utility
expenses and taxes and assessments for the period prior to Closing and, as
provided in each Property Lease, for the term of such Property Lease. The first
monthly installment of Annual Basic Rent under each Property Lease (or a prorated
portion thereof if the Closing Date is not the first day of a calendar month)
shall be paid by Seller to Buyer at Closing.


 


Section 6.2    Transaction Taxes and Closing Costs.


 


(a)       Seller and Buyer 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)       Seller shall pay the fees of any counsel
representing Seller in connection with this transaction. Seller shall also pay
the following costs and expenses:


 


(i)        the cost of all Surveys and Title
Commitments included on the Portfolio Website, but not the costs of any updates
or revisions of the Surveys and Title Commitments that Buyer may elect to obtain
(provided, however, that Seller will cooperate with Buyer to require that the
Surveys are updated and revised by the survey company to the extent of Seller’s
negotiated agreement with such survey company, at no additional cost to
Seller);


 


(ii)       the costs of all Consultant Reports
included on the Portfolio Website, including the certification of such
Consultant Reports to Buyer in the same form as currently certified to Seller
(or by means of reliance letters containing the same certification


 


15

















 


provided to Seller and
otherwise reasonably acceptable to Buyer), but not any additional costs for
additional reports or updates commissioned by Buyer or for any other form of
certification of the Consultant Reports to Buyer;


 


(iii)      transfer, documentary stamp or similar
taxes, if applicable, which become payable by reason of the transfer of the
Properties located in the following States: Florida, Georgia, Maryland, North
Carolina, South Carolina, Virginia (Grantor tax only) and the District of
Columbia (Seller portion of DC transfer tax only);


 


(iv)      the cost of all recording fees for the
Deeds (other than in Alabama) and documents, if any, recorded to satisfy the
Required Cure Exceptions and the costs of all recording fees and, if
applicable, transfer taxes for the Memoranda of Lease (provided, however, that
the decision to record any Memorandum of Lease shall be at the sole and
absolute discretion of Seller);


 


(v)       any advisory fees payable to STRH; and


 


(vi)      one half of the escrow or closing fee, if
any, which may be charged by the Escrow Agent or Title Company.


 


(c)       Buyer shall pay the fees of any counsel
representing Buyer in connection with this transaction. Buyer shall also pay
the following costs and expenses:


 


(i)        one half of the escrow or closing fee,
if any, which may be charged by the Escrow Agent or Title Company;


 


(ii) the
premium for the Owner’s Title Policies to be issued to Buyer at Closing,
together with the cost of any premiums or additional costs attributable to
endorsements or additional title insurance coverage;


 


(iii)      the cost of any updates or revisions to
the Surveys (other than as provided in Section 6.2(b)(i) above)
or Title Commitments that Buyer may obtain;


 


(iv)      all Due Diligence costs incurred by Buyer,
including, without limitation, costs incurred to obtain any new environmental
reports, property condition assessment reports or engineering reports or to
update the Consultant Reports included on the Portfolio Website;


 


(v)       transfer, documentary stamp, deed
recording or similar tax which becomes payable by reason of the transfer of the
Properties located in the following jurisdictions: Alabama, Tennessee, Virginia
(Grantee tax only) and the District of Columbia (recordation tax);


 


(vi)      any mortgage tax, documentary stamp tax,
intangibles tax or similar tax which becomes payable by reason of any security
instrument caused by Buyer to be recorded on any Property or Properties;


 


16

















 


(vii)     all costs and expenses related to or
arising from any financing obtained by Buyer, including but not limited to rate
lock fees, commitment fees, loan fees, attorney fees, Lender’s title insurance
costs, appraisals, and other loan transaction costs;


 


(viii)    costs of any consultants, advisors, brokers
and other agents or independent contractors engaged by Buyer; and


 


(ix)       recording fees for any and all documents
to be recorded other than those set forth in Section 6.2(b)(v) hereof.


 


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


 


(e)       The provisions of this Section 6.2
shall survive the Closing.


 


ARTICLE 7. CLOSING


 


Buyer and Seller hereby
agree that the Transaction shall be consummated as follows:


 


Section 7.1    Closing Date. The Closing shall occur
on the Closing Date. The parties shall endeavor to conduct an escrow-style
closing through the Escrow Agent so that it will not be necessary for any party
to attend the Closing. If, however, either Buyer or Seller determines in good
faith that such an escrow Closing is not practical, Buyer and Seller shall
conduct a “pre-closing” at 10:00 a.m. Eastern Time on the last Business
Day prior to the Closing Date at the offices of Seller’s attorney in Atlanta,
Georgia with title transfer and payment of the Purchase Price to be completed
on the Closing Date as set forth in Section 7.2. TIME IS OF THE
ESSENCE WITH RESPECT TO THE CLOSING.


 


Section 7.2    Title Transfer and Payment of Purchase
Price. Provided all conditions precedent to Seller’s obligations hereunder
have been satisfied, Seller agrees to convey the Properties (and, if
applicable, the membership interests in the Florida Subsidiary) to Buyer upon (i) confirmation
of receipt of the Purchase Price by the Escrow Agent as set forth below, and (ii) written
acknowledgement from the Escrow Agent that Buyer has authorized the Escrow
Agent to disburse, and that Escrow Agent is irrevocably and unconditionally
committed to disburse, the Purchase Price to Seller. Buyer shall deliver to
Escrow Agent the full amount of the Purchase Price prior to 10:00 a.m.
Eastern Time on the Closing Date, in immediately available federal funds wire
transferred to a bank account of Escrow Agent designated by Escrow Agent in
writing to Buyer prior to the Closing. Provided all conditions precedent to
Buyer’s obligations hereunder have been satisfied, Buyer shall deliver to
Escrow Agent written instructions to immediately disburse the Purchase Price to
Seller.


 


Section 7.3    Seller’s Closing Deliveries. At the
Closing, Seller shall deliver or cause to be delivered the following:


 


(a)       Deed. For each Property, a special
warranty deed or limited warranty deed, as applicable, in the form of Schedule
7.3(a) attached hereto and incorporated herein by this reference (“Deed”)
executed and acknowledged by Seller (or with respect to the Properties


 


17

















 


located in the State of
Florida, if applicable, an assignment and assumption of membership interests in
the Florida Subsidiary).


 


(b)       Property Lease. For each Property,
a Property Lease in the form of Schedule 7.3(b) attached hereto and
incorporated herein by this reference executed and acknowledged by Seller.


 


(c)       Master Agreement. For each
Property Pool, a Master Agreement in the form of Schedule 7.3(c) attached
hereto and incorporated herein by this reference executed and acknowledged by
Seller.


 


(d)       Memorandum of Lease. For each
Property, a short form lease or memorandum of lease, as applicable, in the form
set forth for the applicable State in Schedule 7.3(d) attached
hereto and incorporated herein by this reference (each, a “Memorandum of
Lease”), executed and acknowledged by Seller.


 


(e)       Non-Foreign Status Affidavit. A
non-foreign status affidavit in the form of Schedule 7.3(e) attached
hereto and incorporated herein by this reference, as required by Section 1445
of the Internal Revenue Code, executed by Seller.


 


(f)        Evidence of Authority.
Documentation to establish to Escrow Agent’s reasonable satisfaction the due
authorization of Seller’s sale of the Properties, lease of the Properties from
Buyer under the Property Leases and the Master Agreements, and the consummation
of the Transaction.


 


(g)       Legal Opinion. A legal opinion by counsel
to Seller, addressed to Buyer and reasonably acceptable to Buyer in form and
content, as to the legal existence and authority of Seller and the
authorization, execution and delivery by Seller of the Deeds, the Property
Leases, the Master Agreements and the Memoranda of Lease.


 


(h)       Other Documents. A title affidavit
in the form of Schedule 7.3(h) attached hereto and incorporated
herein by this reference and such other documents as may be agreed upon by
Seller and Buyer to consummate the Transaction.


 


(i)        Tax Returns. If applicable, duly
completed and signed real estate transfer tax or sales tax returns.


 


(j)        Closing Statement. Seller’s form
of closing statement, setting forth the prorations and adjustments to the
Purchase Price payable in connection with the Closing (the “Closing
Statement”), executed by Seller.


 


(k)       Withholding Certificate. Such
certificate or affidavit, if any, as is required in any State under applicable
provisions of State Law, to assure Escrow Agent that State income or sales tax withholding
is not required.


 


(1)       Seller’s Closing Certificate. A
certificate (“Seller’s Closing Certificate”) dated as of the Closing
Date and duly executed by Seller, in the form of Schedule 7.3(l) hereto,
stating that the representations and warranties of Seller contained in Section 9.2
of this


 


18

















 


Agreement are true and
correct in all material respects as of the Closing Date (with appropriate
modifications to reflect any changes therein or identifying any representation
or warranty which is not, or no longer is, true and correct in explaining the
state of facts giving rise to the change). The inclusion of any change or
exception in such certificate shall not prejudice Buyer’s rights under this
Agreement with respect to the subject matter of such change or exception.


 


(m)      Insurance Certificate. An insurance
certificate (or certificates) issued by Seller’s insurance carrier in customary
form evidencing that Seller has, as of the Closing, insurance in place with
respect to each Property complying with the terms of each Property Lease
(provided that, to the extent that Seller as of Closing elects pursuant to the
Property Lease with respect to any Property, to self-insure any risk for which
insurance would otherwise be required under such Property Lease, Seller may as
an alternative provide a certification by Seller that Seller has elected to
self-insure with respect to such Property in accordance with such Property
Lease).


 


(n)       Estoppels, SNDAs. If (i) Buyer
is closing mortgage financing on all or any of the Properties concurrent with
Closing, and (ii) Buyer advises Seller at least ten (10) Business
Days prior to Closing of the name of the mortgage lender for each relevant
Property, then Seller agrees to deliver at Closing, with respect to each
Property for which such mortgage financing is being so obtained, the following:


 


(i)        An estoppel certificate with respect to
each Property Lease for such Property in the form attached as Exhibit C
to the Property Lease (each a “Lease Estoppel Certificate”), executed by
Seller; and


 


(ii)       A subordination, non-disturbance and
adornment agreement with respect to each Property Lease for such Property in
the form attached as Exhibit B to the Property Lease (each an “SNDA”),
executed by Seller.


 


The items to be delivered
by Seller in accordance with the terms of Sections 7.3(a) through 7.3(k) shall
be delivered to Escrow Agent no later than 5:00 p.m. Eastern Time on the
last Business Day prior to the Closing Date.


 


Section 7.4    Buyer’s Closing Deliveries. At the
Closing, Buyer shall deliver or cause to be delivered the following:


 


(a)       Purchase Price. The Purchase
Price.


 


(b)       Property Lease . For each
Property, a Property Lease, executed and acknowledged by Buyer.


 


(c)       Master Agreement. For each
Property Pool, a Master Agreement, executed and acknowledged by Buyer.


 


(d)       Memorandum of Lease. For each
Property, the Memorandum of Lease executed and acknowledged by Buyer.


 


19

















 


(e)       Evidence of Authority.
Documentation to establish to Seller’s reasonable satisfaction the due
authorization of Buyer’s acquisition of the Properties, lease of the Properties
to Seller under the Property Leases and the Master Agreements, and the
consummation of the Transaction.


 


(f)        Legal Opinion. A legal opinion by
counsel to Buyer, addressed to Seller and reasonably acceptable to Seller in
form and content, as to the legal existence and authority of Buyer and the
authorization, execution and delivery of the Property Leases, the Master
Agreements and Memoranda of Lease by Buyer.


 


(g)       Other Documents. Such other
documents as may be agreed upon by Seller and Buyer to consummate the
Transaction.


 


(h)       Tax Returns. If applicable, duly
completed and signed real estate transfer tax or sales tax returns.


 


(i)        Closing Statement. The Closing
Statement, executed by Buyer.


 


(j)        Buyer’s Closing Certificate. A
certificate (“Buyer’s Closing Certificate”) dated as of the Closing Date
and duly executed by Buyer, in the form of Schedule 7.4(j) hereto,
stating that the representations and warranties of Buyer contained in Section 9.2
of this Agreement are true and correct in all material respects as of the
Closing Date (with appropriate modifications to reflect any changes therein or
identifying any representation or warranty which is not, or no longer is, true
and correct in explaining the state of facts giving rise to the change). The
inclusion of any change or exception in such certificate shall not prejudice
Seller’s rights under this Agreement with respect to the subject matter of such
change or exception.


 


(k)       Estoppels, SNDAs. If (i) Buyer
is closing mortgage financing on all or any of the Properties concurrent with
Closing, and (ii) Buyer has requested that Seller deliver the same, then
Buyer agrees to deliver at Closing, with respect to each Property for which
such mortgage financing is being so obtained, the following:


 


(i)        An SNDA for such Property, executed by
Buyer.


 


The Purchase Price shall
be paid in accordance with the terms of Section 7.2 hereof and the
items to be delivered by Buyer in accordance with the terms of Sections 7.4(b) through
7.4(i) shall be delivered to Escrow Agent no later than 5:00 p.m.
Eastern Time on the last Business Day prior to the Closing Date.


 


Section 7.5    Contracts, Personal Property, Intangible
Property and Excluded Items. Following Closing, Seller will be the tenant
of each Property under the applicable Property Lease and will be responsible
for the operation, management and administration of each Property, including
all expenses of the operation, management and administration of each Property,
pursuant to the terms of the applicable Property Lease. Accordingly, Seller
shall retain and reserve at Closing, and shall not convey to Buyer, all
Contracts, Existing Leases (if any), Personal Property and Intangible Property,
as well as all other Excluded Items (including any


 


20

















 


Excluded Items which,
under applicable State law, constitute real property or an interest in real
property). This Section 7.5 shall survive Closing.


 


ARTICLE 8. CONDITIONS TO CLOSING


 


Section 8.1    Conditions to Seller’s Obligations.
Seller’s obligation to close is conditioned on all of the following, any or all
of which may be waived by Seller by an express written waiver, at its sole
option:


 


(a)       Representations True. All
representations and warranties made by Buyer in this Agreement shall be true
and correct in all material respects on and as of the Closing Date, as if made
on and as of such date except to the extent they expressly relate to an earlier
date;


 


(b)       Buyer’s Financial Condition. No
petition has been filed by or against Buyer under the Federal Bankruptcy Code
or any similar State or Federal Law, whether now or hereafter existing; and


 


(c)       Buyer’s Deliveries Complete. Buyer
shall have delivered the funds required hereunder and all of the documents to
be executed by Buyer set forth in Section 7.4 and shall have
performed all other covenants, undertakings and obligations, and complied with
all conditions required by this Agreement, to be performed or complied with by
Buyer at or prior to the Closing.


 


Section 8.2    Conditions to Buyer’s Obligations.
Buyer’s obligation to close is conditioned on all of the following, any or all
of which may be expressly waived by Buyer in writing, at its sole option:


 


(a)       Representations True. Subject to
the provisions of Section 9.3, all representations and warranties
made by Seller in this Agreement, as the same may be amended as provided in Section 9.3,
shall be true and correct in all material respects on and as of the Closing
Date, as if made on and as of such date except to the extent that they
expressly relate to an earlier date; provided, however, that if the
representation and warranty made by Seller in Section 9.2(c) or
Section 9.2(d) is not true and correct in all material
respects with respect to any Property on and as of the Closing Date, as if made
on and as of such date except to the extent they expressly relate to an earlier
date, then Buyer’s sole remedy shall be to terminate this Agreement with
respect to such Property by written notice delivered to Seller on or before the
earlier of (i) the Closing Date or (ii) the tenth (10th)
Business Day after Buyer first knows such representation or warranty is not
true or correct, and upon such termination such Property shall constitute an
Excluded Property for purposes of this Agreement.


 


(b)       Title Conditions Satisfied. At the
time of the Closing, title to the Properties shall be as provided in Article 4
of this Agreement;


 


(c)       No Material Adverse Change. No
Material Adverse Change shall have occurred and be continuing; and


 


21

















 


(d)       Seller’s Deliveries Complete.
Seller shall have delivered all of the documents and other items required
pursuant to Section 7.3 and shall have performed all other
covenants, undertakings and obligations, and complied with all conditions
required by this Agreement, to be performed or complied with by Seller at or
prior to the Closing.


 


Section 8.3    Waiver of Failure of Conditions Precedent.
At any time or times on or before the date specified for the satisfaction of
any condition, Seller or Buyer may elect in writing to waive the benefit of any
such condition set forth in Section 8.1 or Section 8.2,
respectively. By closing on any Property, Seller and Buyer shall be
conclusively deemed to have waived the benefit of any remaining unfulfilled
conditions set forth in Section 8.1 and Section 8.2,
respectively, with respect to such Property. In the event any of the conditions
set forth in Sections 8.1 or 8.2 are neither waived nor fulfilled,
Seller or Buyer (as appropriate) may exercise such rights and remedies, if any,
as such party may have pursuant to the terms of Article 11 hereof.


 


Section 8.4    Approvals Not a Condition to Buyer’s
Performance. Buyer acknowledges arid agrees that its obligation to perform
under this Agreement is not contingent upon Buyer’s ability to obtain any (a) governmental
or quasi-governmental approval of changes or modifications in use or zoning, (b) modification
of any existing land use restriction, assignments of any service contracts,
management agreements or other agreements which, (c) endorsements to the
Owner’s Title Policy, (d) financing for the transaction, or (e) any
other condition or contingency not expressly provided in this Agreement.


 


Section 8.5    Effect of Termination with respect to One
or More Properties.


 


(a)       If this Agreement is terminated with
respect to any Property or Properties pursuant to Section 4.2(a), Section 8.2(a),
Section 12.1 or Section 12.2. then (except as otherwise
provided in Section 8.5(c)):


 


(i)        This Agreement shall cease to have any
further force or effect with respect to the Excluded Properties;


 


(ii)       This Agreement shall continue in full
force and effect with respect to all Properties other than the Excluded
Properties;


 


(iii)      The Purchase Price shall be reduced by an
amount equal to the aggregate Allocated Purchase Prices of all Excluded
Properties;


 


(iv)      Neither Buyer nor Seller shall have any
further rights or obligations hereunder with respect to any Excluded Property
other than any rights or obligations arising under any section herein which
expressly provides that it shall survive the termination of this Agreement; and


 


(v)       Buyer and Seller shall jointly and in
writing instruct the Escrow Agent to release to Buyer the Allocated Deposit for
any Excluded Property (other than for any Deferred Property or any Excluded
Property which is replaced by a Substitute Property)


 


22

















 


(the amount of any
Allocable Deposit released to Buyer pursuant to this Section 8.5
being called the “Deposit Reimbursement Amount”).


 


(b)       If this Agreement is terminated with
respect to any Property or Properties pursuant to Section 4.2(a), Section 8.2(a),
Section 12.1 or Section 12.2, then Seller may, but
shall not be obligated to, propose to Buyer one or more alternative properties
of a comparable nature owned by Seller to take the place of the Excluded Property
or Excluded Properties, in which case Seller shall provide Buyer with such
information regarding the alternative property or properties as Seller shall
consider relevant, including the proposed Annual Basic Rent for such property
and due diligence information reasonably available to Seller for such property.
Buyer agrees to act in a commercially reasonable manner in evaluating any
alternative property proposed by Seller. If Buyer and Seller agree on the terms
for inclusion of any alternative property in the Properties and the
Transaction, then Buyer and Seller shall enter into a written amendment to this
Agreement providing the terms and conditions of such inclusion (which shall
include, among other things, the Allocated Purchase Price and the Annual Basic
Rent for such property) and the alternative property shall be a “Substitute
Property” and shall thenceforth be treated as a “Property” for purposes of
this Agreement, and the Allocated Purchase Price for such Substitute Property
shall be added to the Purchase Price.


 


(c)       If the Allocated Purchase Prices of the
Excluded Properties (after deducting from such amount the Allocated Purchase
Prices of all Substitute Properties) exceeds 20% of the initial Purchase Price,
then either Buyer or Seller shall have the right to elect to terminate this
Agreement in its entirety by providing written notice to the other party within
five (5) Business Days after Buyer or Seller, as applicable, has knowledge
of such fact, in which case the Deposit shall be refunded to Buyer and the
parties hereto shall have no further rights or obligations under this
Agreement, except those which expressly survive such termination. In the event
neither Buyer nor Seller elects to terminate this Agreement pursuant to the
preceding sentence, then Buyer and Seller shall proceed to close on all of the
Properties other than the Excluded Properties. Buyer and Seller shall each make
the election to terminate this Agreement within five (5) Business Days
after the right to terminate arises or it will be deemed to have waived such
termination right.


 


ARTICLE 9. REPRESENTATIONS AND
WARRANTIES


 


Section 9.1    Buyer’s Representations. Buyer
represents and warrants to, and covenants with, Seller as follows:


 


(a)       Buyer’s Authorization. Buyer (a) is
duly organized (or formed), validly existing and in good standing under the
Laws of the State of its organization and, to the extent required by Law, each
State in which a Property is located, (b) is authorized to consummate the
Transaction and fulfill all of its respective obligations hereunder and under
all Closing Documents to be executed by Buyer, and ,(c) has all necessary
power to execute and deliver this Agreement and all Closing Documents to be
executed by Buyer, and to perform all of Buyer’s obligations hereunder and
thereunder. This Agreement and all Closing Documents to be executed by Buyer
have been duly authorized by all requisite corporate or other required action
on the part of Buyer. Neither the execution and delivery of this Agreement and
all Closing


 


23

















 


Documents to be executed
by Buyer, nor the performance of the obligations of Buyer hereunder or
thereunder will result in the violation of any Laws or any provision of the
organizational documents of Buyer or will conflict with any order or decree of
any court or governmental instrumentality of any nature by which Buyer is
bound.


 


(b)       Buyer’s Financial Condition. No
petition has been filed by or against Buyer under the Federal Bankruptcy Code
or any similar State or Federal Laws (other than petitions filed by Buyer
against debtors in proceedings in which Buyer is a creditor).


 


(c)       Patriot Act Compliance. BUYER AND
ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY OWNING ANY INTEREST IN THE BUYER
(OTHER THAN ANY PUBLIC SHAREHOLDER) IS NOT (I) ACTING, DIRECTLY OR
INDIRECTLY FOR, OR ON BEHALF OF, ANY PERSON, GROUP, ENTITY OR NATION NAMED BY
ANY EXECUTIVE ORDER (INCLUDING THE SEPTEMBER 24, 2001, EXECUTIVE ORDER BLOCKING
PROPERTY AND PROHIBITING TRANSACTIONS WITH PERSONS WHO COMMIT. THREATEN TO
COMMIT, OR SUPPORT TERRORISM) OR THE UNITED STATES TREASURY DEPARTMENT AS A
TERRORIST, “SPECIALLY DESIGNATED NATIONAL AND BLOCKED PERSON,” OR OTHER BANNED
OR BLOCKED PERSON, ENTITY, OR NATION PURSUANT TO ANY LAW THAT IS ENFORCED OR
ADMINISTERED BY THE OFFICE OF FOREIGN ASSETS CONTROL, AND IS NOT ENGAGING IN
THIS TRANSACTION, DIRECTLY OR INDIRECTLY, ON BEHALF OF, OR INSTIGATING OR
FACILITATING THIS TRANSACTION, DIRECTLY OR INDIRECTLY, ON BEHALF OF, ANY SUCH
PERSON, GROUP, ENTITY OR NATION, NOR (II) ENGAGED IN ANY DEALINGS OR
TRANSACTIONS, DIRECTLY OR INDIRECTLY, IN CONTRAVENTION OF ANY UNITED STATES,
INTERNATIONAL OR OTHER APPLICABLE MONEY LAUNDERING REGULATIONS OR CONVENTIONS,
INCLUDING, WITHOUT LIMITATION, THE UNITED STATES BANK SECRECY ACT, THE UNITED
STATES MONEY LAUNDERING CONTROL ACT OF 1986, THE UNITED STATES INTERNATIONAL
MONEY LAUNDERING ABATEMENT AND ANTI- TERRORIST FINANCING ACT OF 2001, TRADING
WITH THE ENEMY ACT (50 U.S.C. § 1 ET SEQ., AS AMENDED), OR ANY FOREIGN ASSET CONTROL
REGULATIONS OF THE UNITED STATES TREASURY DEPARTMENT (31 CFR, SUBTITLE B,
CHAPTER V, AS AMENDED) OR ANY ENABLING LEGISLATION OR EXECUTIVE ORDER RELATING
THERETO. WITHOUT LIMITATION ON ANY OTHER SURVIVAL PROVISION OF THIS AGREEMENT,
THIS SECTION 9.1(C) SHALL SURVIVE THE CLOSING OR TERMINATION
OF THIS AGREEMENT.


 


(d)       Acquisition for Own Account. Buyer
is acquiring the Properties for its own account for investment and not with a
view to any distribution (as such term is used in Section 2(11) of the
Securities Act of 1933, as amended (the “Securities Act”)) thereof, and
if in the future it should decide to dispose of any Property or Properties, it
understands that it may do so only in compliance with the Securities Act, if
applicable, and the rules and regulations of the Securities and Exchange
Commission (“SEC”) thereunder and any applicable state securities laws.


 


(e)       Offering. Neither Buyer nor anyone
authorized by Buyer to do so on its behalf has offered, directly or indirectly,
any beneficial interest or security (as defined in Section


 


24

















 


2(1) of the
Securities Act) relating to the Properties for sale to, or has solicited any
offer to acquire any such interest or security from, or has sold any such
interest or security to, any person in violation of the registration provisions
of the Securities Act, and neither Buyer nor anyone authorized by Buyer to do
so on its behalf has taken any action which would subject any such interest to
the registration requirements of Section 5 of the Securities Act, and
neither Buyer nor anyone authorized by Buyer to do so on its behalf has made
prior to the Closing Date, directly or indirectly, any such offer, solicitation
or sale in violation of such provisions of the Securities Act.


 


(f)        Survival. Buyer’s
representations and warranties in this Section 9.1 shall survive
the Closing and not be merged therein.


 


Section 9.2    Seller’s
Representations. Seller represents and warrants to Buyer as follows:


 


(a)       Seller’s Authorization.
Seller (a) is duly organized (or formed), validly existing and in good
standing under the Laws of the State of its organization and, to the extent
required by Law, each State in which a Property is located, (b) is
authorized to consummate the Transaction and fulfill all of its respective
obligations hereunder and under all Closing Documents to be executed by Seller,
and (c) has all necessary power to execute and deliver this Agreement and
all Closing Documents to be executed by Seller, and to perform all of Seller’s
obligations hereunder and thereunder. This Agreement and all Closing Documents
to be executed by Seller have been duly authorized by all requisite corporate
or other required action on the part of Seller. Neither the execution and
delivery of this Agreement and all Closing Documents to be executed by Seller,
nor the performance of the obligations of Seller hereunder or thereunder will
result in any material violation of any Law or any provision of the
organizational documents of Seller or will conflict in any material way with
any order or decree of any court or governmental instrumentality of any nature
by which Seller is bound.


 


(b)       Litigation. To
Seller’s knowledge, Seller has not received any written notice of any current
or pending litigation against Seller which would, in the reasonable judgment of
Seller, if determined adversely to Seller, cause a Material Adverse Change.


 


(c)       Legal Compliance.
Except as disclosed on Schedule X, to Seller’s knowledge, Seller has not
received written notice from any Governmental Authority that any Property is in
violation of Laws applicable to such Property that remains uncured and that, if
not cured, would have a Property Material Adverse Effect with respect to such
Property. “Property Material Adverse Effect” means, with respect to any
fact or circumstance and any specific Property, that such fact or circumstance
would individually or in the aggregate have an adverse effect on title to such
Property or any portion thereof, on Seller’s ability to consummate the
transaction contemplated herein, or on the value or operation of the Property
for its current use, which results or could reasonably be expected to result in
losses, costs, damages, liabilities or expenditures in excess of two and
one-half percent (2.5%) of the Allocated Purchase Price of any individual
Property.


 


(d)       Condemnation.
Except as disclosed on Schedule X, to Seller’s knowledge, Seller has not
received written notice from any Governmental Authority of, or been


 


25

















 


served
with legal process with respect to, any pending condemnation proceedings
relating to the Property that would have a Property Material Adverse Effect
with respect to such Property.


 


(e)       Seller’s Financial
Condition. No petition has been filed by or against Seller under the
Federal Bankruptcy Code or any similar State or Federal Laws (other than
petitions filed by Seller against debtors in proceedings in which Seller is a
creditor).


 


Section 9.3    General
Provisions.


 


(a)       Seller’s Warranties
Deemed Modified. To the extent that Buyer knows or is deemed to know as of
or prior to the Effective Date that Seller’s Warranties are inaccurate, untrue
or incorrect in any way, such representations and warranties shall be deemed
modified to reflect Buyer’s knowledge or deemed knowledge, as the case may be.


 


(b)       Breach of Seller’s
Warranties prior to Closing.


 


(i)        If at
or prior to the Closing, any Buyer’s Representative obtains actual knowledge
that any of Seller’s Warranties is untrue, inaccurate or incorrect in any
material respect, Buyer shall give Seller written notice thereof within five (5) Business
Days of obtaining such knowledge (but, in any event, prior to the Closing). If
at or prior to the Closing, Seller obtains actual knowledge that any of Seller’s
Warranties is untrue, inaccurate or incorrect in any material respect, Seller
shall give Buyer written notice thereof within five (5) Business Days of
obtaining such knowledge (but, in any event, prior to the Closing). In either
such event, Seller shall have the right to cure such misrepresentation or
breach and shall be entitled to a reasonable adjournment of the Closing (not to
exceed thirty (30) days) for the purpose of such cure. If Seller chooses not to
so cure, then Buyer’s rights will be governed by Section 11.2
hereof.


 


(ii)       If
any of Seller’s Warranties should prove to be untrue, inaccurate or incorrect
but such Seller’s Warranties are not, in the aggregate, untrue, inaccurate or
incorrect in any material respect, Buyer shall be deemed to waive such
misrepresentation or breach of warranty, and Buyer shall be required to
consummate the Transaction without any reduction of or credit against the
Purchase Price.


 


(c)       Survival; Limitation
on Seller’s Liability. Seller’s Warranties in Section 9.2(a) (as
updated by Seller’s Closing Certificate) shall survive the Closing for the
applicable statutory period. Seller’s Warranties in Section 9.2(b),
(c), (d) and (e) (as updated by Seller’s Closing Certificate)
shall survive the Closing and shall not be merged therein for a period of
twelve (12) months and Seller shall only be liable to Buyer hereunder for a
breach of such Seller’s Warranty with respect to which a claim is made by Buyer
against Seller on or before the last day of the twelfth (12th) month
after the Closing Date. Anything in this Agreement to the contrary
notwithstanding, the maximum aggregate liability of Seller for breaches of
Seller’s Warranties shall be limited as set forth in Section 15.13
hereof. Notwithstanding the foregoing, however, if a Closing occurs, Buyer
hereby expressly waives, relinquishes and releases any right or remedy
available to it at law, in equity, under this Agreement or otherwise to make a
claim against Seller for damages that Buyer may incur, or to rescind this Agreement
and the Transaction or any portion thereof, as the result of any of Seller’s
Warranties being untrue,


 


26
















inaccurate
or incorrect if (a) Buyer knew or is deemed to know that such
representation or warranty was untrue, inaccurate or incorrect at the time of
Closing, or (b) Buyer’s damages as a result of such representations or
warranties being untrue, inaccurate or incorrect are not material.


 


ARTICLE 10. COVENANTS


 


Section 10.1  Buyer’s
Covenants. Buyer hereby covenants as follows:


 


(a)       Confidentiality.
Buyer acknowledges that any information heretofore or hereafter furnished to
Buyer with respect to any Property or Properties has been and will be so
furnished on the condition that Buyer maintain the confidentiality thereof.
Accordingly, Buyer shall hold, and shall cause the other Buyer’s
Representatives to hold, in strict confidence, and Buyer shall not disclose,
and shall prohibit the other Buyer’s Representatives from disclosing, to any
other person without the prior written consent of Seller: (a) the terms of
this Agreement, and (b) any of the information in respect of any Property
or Properties delivered to or for the benefit of Buyer whether by any of Buyer’s
Representatives or by any of Seller Parties, including, but not limited to, any
information heretofore or hereafter obtained by any Buyer’s Representatives in
connection with its Due Diligence. Buyer’s obligation under clause (a) of
the immediately preceding sentence shall survive the Closing and not be merged
therein. In the event the Closing does not occur or this Agreement is
terminated, Buyer shall promptly return to Seller all copies of documents containing
any of such information relating to the unclosed portion of the Transaction
without retaining any copy thereof or extract therefrom. Notwithstanding
anything to the contrary hereinabove set forth, Buyer may disclose such
information (i) on a need-to-know basis to its employees, members of
professional firms serving it or potential lenders, (ii) as any
governmental agency may require in order to comply with applicable Laws or a
court order, and (iii) to the extent that such information is a matter of
public record. The provisions of this Section 10. 1(a) shall
survive any termination of this Agreement.


 


(b)       Buyer’s Indemnity.
Buyer hereby agrees to indemnify, defend, and hold each of Seller Parties free
and harmless from and against any and all Liabilities (including reasonable
attorneys’ fees, expenses and disbursements) arising out of or resulting from (a) the
breach of the terms of Section 10.1(a) or (b) the
entry on any Property or Properties and/or the conduct of any Due Diligence by
any Buyer’s Representatives at any time prior to the Closing; provided, however,
that Buyer’s obligations under this clause (b) shall not apply to
the mere discovery of a pre-existing environmental or physical condition at any
Property. The provisions of this Section shall survive the Closing (and
not be merged therein) or any earlier termination of this Agreement.


 


Section 10.2  Seller’s
Covenants. Seller hereby covenants as follows:


 


(a)       Maintenance of
Properties. Except to the extent Seller is relieved of such obligations by Article 12
hereof, between the Effective Date and the Closing Date, Seller shall maintain
and keep the Properties in a manner consistent with Seller’s past practices
with respect to the Properties; provided, however, that, Buyer
hereby agrees that, except for breaches of this Section 10.2(a),
Buyer shall accept the Properties subject to, and Seller shall have no
obligation to cure, (a) any violations of Laws, or (b) any physical
conditions which would give rise to


 


27

















 


violations of Laws,
whether the same now exist or arise prior to the Closing (except that Seller
shall comply with its obligations under the terms of each Property Lease from
and after the Closing Date in its capacity as the tenant under such Property
Lease). Between the Effective Date and the Closing Date, Seller will advise
Buyer of any written notice Seller receives after the Effective Date from any
governmental authority of the violation of any Laws regulating the condition or
use of the Properties.


 


Section 10.3  Mutual Covenants.


 


(a)       Confidentiality: Access.


 


(i)        The Confidentiality Agreement and the
Access Agreement Addendum are hereby incorporated in this Agreement by
reference, and Seller and Buyer agree to continue to be bound by the terms of
such agreements binding on such parties, respectively.


 


(ii)       Buyer hereby agrees to indemnify, defend,
and hold Seller and each of the other Seller Parties free and harmless from and
against any and all Liabilities arising out of or resulting from the breach by
Buyer of the terms of the Confidentiality Agreement or the Access Agreement
Addendum, which indemnity shall survive the Closing (and not be merged therein)
or any earlier termination of this Agreement.


 


(b)       Publicity. Seller and Buyer each
hereby covenant and agree that (a) prior to the Closing neither Seller nor
Buyer shall issue any Release (as hereinafter defined) with respect to the
Transaction or any portion thereof without the prior consent of the other,
except to the extent required by applicable Law, and (b) after the
Closing, any Release issued by either Seller or Buyer shall be subject to the
review and approval of both parties (which approval shall not be unreasonably
withheld, conditioned or delayed), except to the extent required by applicable
Law. If either Seller or Buyer is required by applicable Law to issue a
Release, such party shall, at least three (3) Business Days prior to the
issuance of the same, deliver a copy of the proposed Release to the other party
for its review. As used herein, the term “Release” means any press
release or public statement with respect to the Transaction or any portion
thereof or this Agreement.


 


(c)       Advisors and Brokers. Seller and
Buyer expressly acknowledge that STRH has acted as Seller’s advisor with
respect to the Transaction and with respect to this Agreement. Seller shall pay
any advisory fees due to STRH in accordance with the separate agreement between
Seller and STRH. Seller agrees to hold Buyer harmless and indemnify Buyer from and
against any and all Liabilities (including reasonable attorneys’ fees, expenses
and disbursements actually incurred) suffered or incurred by Buyer as a result
of any claims by STRH or any other party claiming to have represented Seller as
advisor or broker in connection with the Transaction. Buyer agrees to hold
Seller harmless and indemnify Seller from and against any and all Liabilities
(including reasonable attorneys’ fees, expenses and disbursements actually
incurred) suffered or incurred by Seller as a result of any claims by any party
claiming to have represented Buyer as advisor or broker in connection with the
Transaction and Buyer shall be responsible for the payment of any fees,
commissions or other expenses with respect to any advisor or broker, if any,
engaged by or through Buyer.


 


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(d)       Tax Protests: Tax Refunds and Credits.
Seller shall have the right to continue and to control the progress of and to
make all decisions with respect to any contest of the real estate taxes and
personal property taxes for each Property due and payable during the Closing
Tax Year and all prior Tax Years. Further, to the full extent permitted under
each Property Lease, Seller shall have the right to control the progress of and
to make all decisions with respect to any tax contest of the real estate taxes
and personal property taxes for the Properties due and payable during all Tax
Years subsequent to the Closing Tax Year. All real estate and personal property
tax refunds and credits received after the Closing with respect to the
Properties shall be applied in the following order of priority: first,
to pay the costs and expenses (including reasonable attorneys’ fees, expenses
and disbursements) incurred in connection with obtaining such tax refund or
credit; and second, to Seller.


 


(e)       Survival. The provisions of this Section 10.3
shall survive the Closing (and not be merged therein) or earlier termination of
this Agreement.


 


ARTICLE 11. DEFAULT


 


Section 11.1  Buyer Default. If the Closing fails to
occur on or before the Closing Date by reason of Buyer’s breach of or default
under this Agreement, and any such circumstance continues for five (5) Business
Days after written notice from Seller to Buyer, which written notice shall
detail such default, untruth or failure, as applicable, then Seller may elect
to (a) terminate this Agreement by written notice to Buyer, promptly after
which the Deposit shall be paid to Seller as liquidated damages and,
thereafter, the parties shall have no further rights or obligations hereunder
except for obligations which expressly survive the termination of this
Agreement, or (b) waive the condition and proceed to close the
Transaction. Buyer and Seller acknowledge and agree that the retention of the
Deposit by Seller is not a penalty, it being agreed between the parties hereto
that the actual damages to Seller in the event of such breach are impractical
to ascertain and the amount of the Deposit is a reasonable estimate thereof.
Except in connection with the indemnification obligations of Buyer hereunder
and under the Closing Documents and Buyer’s payment obligations under Section 15.19,
Seller hereby waives and releases any right to (and hereby covenants that it
shall not) sue Buyer: (a) for specific performance of this Agreement, or (b) to
recover any damages of any nature or description other than or in excess of the
Deposit. Buyer hereby waives and releases any right to (and hereby covenants
that it shall not) sue Seller or seek or claim a refund of the Deposit (or any
part thereof) on the grounds it is unreasonable in amount and exceeds Seller’s
actual damages or that its retention by Seller constitutes a penalty and not
agreed upon and reasonable liquidated damages.


 


Section 11.2  Seller Default. If the Closing fails to
occur on or before the Closing Date by reason of Seller’s breach of or default
under this Agreement, and any such circumstance continues for five (5) Business
Days after written notice from Buyer to Seller, which written notice shall
detail such failure, refusal or untruth, then Buyer may elect to (a) terminate
this Agreement by written notice to Seller, after which Buyer will receive a
full refund of the Deposit and Seller shall promptly pay the Liquidated Damages
Amount to Buyer as liquidated damages and, thereafter, the parties shall have
no further rights or obligations hereunder except for obligations which
expressly survive the termination of this Agreement, or (b) waive the


 


29

















 


condition and proceed to
close the Transaction with no reduction in the Purchase Price. Seller and Buyer
acknowledge and agree that Buyer’s right to collect and retain the Liquidated
Damages Amount is not a penalty, it being agreed between the parties hereto
that the actual damages to Buyer in the event of such failure, refusal or
untruth are impractical to ascertain and the amount of the Liquidated Damages
Amount is a reasonable estimate thereof. Except in connection with the
indemnification obligations of Seller hereunder and under the Closing Documents
and Seller’s payment obligations under Section 15.19, Buyer hereby
waives and releases any right to (and hereby covenants that it shall not) sue
Seller: (A) for specific performance of this Agreement or injunctive
relief of any kind, (B) for any other remedy at law or in equity, other
than the Liquidated Damages Amount, or (C) to recover any damages of any
nature or description other than or in excess of the Liquidated Damages Amount.
Seller hereby waives and releases any right to (and hereby covenants that it
shall not) sue Buyer or seek or claim a refund or reduction of the Liquidated
Damages Amount (or any part thereof) on the grounds it is unreasonable in
amount and exceeds Buyer’s actual damages or that its retention by Buyer
constitutes a penalty and not agreed upon and reasonable liquidated damages.
The term “Liquidated Damages Amount” means an amount equal to NINE
MILLION THREE HUNDRED SEVENTY-TWO THOUSAND TWO HUNDRED SIXTY-EIGHT AND 20/100
Dollars ($9,372,268.20) which amount may be reduced by any Deposit
Reimbursement Amount pursuant to the terms of Section 8.5.


 


Section 11.3  Waiver of Lis Pendens. Without
limitation on the foregoing provisions of this Article 11, if this
Agreement terminates for any reason,


 


(a)       Buyer waives and releases any right it
may have to file or record a notice of lis
pendens or notice of pendency of action or similar notice against
any Property or Properties; and


 


(b)       If Buyer or any party related to or
affiliated with Buyer files a notice of lis
pendens or notice of pendency of action or similar notice against
any Property or Properties or otherwise asserts any claim or right to the
Properties or any Property that would otherwise delay or prevent Seller from
having clear, indefeasible, and marketable title to the Properties or any
Property, then Seller shall have all rights and remedies available at law or in
equity (including, without limitation, the right to seek a temporary
restraining order or injunction to protect Seller from exposure to immediate
and irreparable harm resulting from such action by Buyer) with respect to such
assertion by Buyer and any loss, damage or other consequence suffered by Seller
as a result of such assertion.


 


(c)       This Section 11.3 shall
survive the Closing or any termination of this Agreement.


 


ARTICLE 12. CONDEMNATION/CASUALTY


 


Section 12.1  Condemnation.


 


(a)       Right to Terminate. If, prior to
the Closing Date, all or any significant portion (as hereinafter defined) of
any Property is taken by eminent domain (or is the subject of a pending taking
in which Seller has been served with legal process, but which has not yet been


 


30

















 


consummated), Seller
shall notify Buyer in writing of such fact promptly after obtaining knowledge
thereof, and, thereafter, either Buyer or Seller shall have the right to
terminate this Agreement with respect to such Property by giving written notice
to the other party no later than ten (10) days after Buyer’s receipt of
Seller’s notice, and the Closing Date shall be extended, if necessary, to
provide sufficient time for each of Buyer and Seller to make such election. The
failure by Buyer or Seller to so elect in writing to terminate this Agreement
with respect to such Property within such ten (10) day period shall be
deemed an election by such party not to terminate this Agreement with respect
to such Property. For purposes hereof, a “significant portion” of a
Property shall mean any interest in such Property except an interest the taking
of which (i) has no material effect on the use, value or operation of such
Property, and (ii) does not cause such Property to be a non-conforming use
under applicable land use laws (other than a legal non-conforming use) and does
not otherwise cause such Property not to comply with applicable Law.


 


(b)       Assignment of Proceeds. If (i) neither
Buyer nor Seller elects to terminate this Agreement as aforesaid if all or any
significant portion of any Property is taken, or (ii) a portion of any
Property not constituting a significant portion of such Property is taken or
becomes subject to a pending taking by eminent domain, then there shall be no
abatement of the Purchase Price and at Closing, the parties shall enter into
the Property Lease with respect to such Property with no abatement of rent on
account of such taking (and Seller, as Tenant under such Property Lease, shall
undertake such repair and restoration as is required under such Property Lease
following Closing); provided, however, that, at the Closing,
Seller shall pay to Buyer the amount of any award for or other proceeds on
account of such taking which have been actually paid to Seller prior to the
Closing Date as a result of such taking (less all costs and expenses, including
attorneys’ fees and costs, incurred by Seller as of the Closing Date in
obtaining payment of such award or proceeds) and, to the extent such award or
proceeds have not been paid, Seller shall assign to Buyer at the Closing
(without recourse to Seller) the rights of Seller to, and Buyer shall be
entitled to receive and retain, all awards for the taking of the Property or
such portion thereof, except that nothing in this Section shall be deemed
to require Seller to assign to Buyer or entitle Buyer to any award or payment
relating to (i) Excluded Items, (ii) Seller’s business damages or the
loss of Seller’s business as the result of the taking, or (iii) relocation
and moving expenses, if any, and incidental out-of-pocket expenses.


 


Section 12.2  Destruction or Damage.


 


(a)       Property Threshold Amount. The “Property
Threshold Amount” means, with respect to any Property, the greater of (i) 25%
of the Allocated Purchase Price of such Property or (ii) $500,000.00.


 


(b)       Non-Material Casualty. In the
event any portion of any Property is damaged or destroyed by casualty prior to
the Closing Date, Seller shall notify Buyer in writing of such fact promptly
after obtaining knowledge thereof. If any such damage or destruction would cost
less than the Property Threshold Amount to repair or restore (a “Non-Material
Casualty”), then this Agreement shall remain in full force and effect,
there shall be no reduction in the Purchase Price and Buyer shall acquire such
Property upon the terms and conditions set forth herein. If the Non-Material
Casualty is an insured casualty, then Seller, in its capacity as tenant under
the applicable Property Lease, shall pay all costs and expenses, including
attorneys’


 


31

















 


fees and costs, incurred
by Seller as of the Closing Date in connection with the negotiation and/or
settlement of the casualty claim with the insurer (the “Realization Costs”),
and Seller shall retain (and, if necessary, Buyer shall at Closing assign to
Seller) all of Seller’s right, title and interest in and to all additional
proceeds of insurance on account of such damage or destruction, to be applied
in accordance with the terms of such Property Lease toward the restoration and
repair of the Property, with any remaining proceeds to be retained by Seller
(and Seller, as Tenant under such Property Lease, shall undertake such repair
and restoration as is required under such Property Lease). If the Non-Material
Casualty is an uninsured casualty, then Seller, in its capacity as tenant under
such Property Lease, shall pay for the restoration and repair of the Property
in accordance with the terms of such Property Lease. In no event will there be
a reduction in the Purchase Price as a result of a Non-Material Casualty.


 


(c)       Casualty in Excess of Property Threshold
Amount. In the event any Property is damaged or destroyed prior to the
Closing Date by a casualty and would cost more than the Property Threshold
Amount to repair or restore, (a “Material Casualty”), then,
notwithstanding anything to the contrary set forth above in this Section, Buyer
or Seller shall have the right, at its option, to terminate this Agreement with
respect to such Property. Buyer or Seller shall have thirty (30) days after
Seller notifies Buyer that a casualty has occurred to make such election by
delivery to the other party of a written election notice (the “Election
Notice”), and the Closing Date shall be extended, if necessary, to provide
sufficient time for each of Buyer and Seller to make such election. The failure
by Buyer to deliver the Election Notice within such thirty (30) day period
shall be deemed an election not to terminate this Agreement with respect to
such Property. In the event neither Buyer nor Seller elects to terminate this
Agreement with respect to such Property as set forth above, then this Agreement
shall remain in full force and effect, there shall be no reduction in the
Purchase Price, and Buyer shall acquire such Property upon the terms and
conditions set forth herein, and


 


(i)        If the Material Casualty is an insured
casualty, then Seller, in its capacity as tenant under the applicable Property
Lease, shall pay all Realization Costs, and Seller shall retain (and, if
necessary, Buyer shall at Closing assign to Seller) all of Seller’s right,
title and interest in and to all proceeds of insurance on account of such
damage or destruction, to be applied toward the restoration and repair of the
Property in accordance with the terms of such Property Lease, with any
remaining proceeds to be retained by Seller; and


 


(ii)       If the Material Casualty is an uninsured
casualty, then Seller, in its capacity as tenant under the applicable Property
Lease, shall pay for the restoration and repair of the Property in accordance
with the terms of such Property Lease.


 


(d)       If there is a dispute as to whether the
cost to repair or restore any damage or destruction to a Property would exceed
the Property Threshold Amount, then such determination shall be made by a
contractor or engineer acceptable to Seller and Buyer.


 


Section 12.3  Insurance. Seller shall maintain the
property insurance coverage currently in effect for the Properties (or
substantially similar insurance coverage) through the Closing Date.


 


32

















 


Section 12.4  Excluded Property. At such time as
either Buyer or Seller makes a timely election pursuant to Section 12.1
or Section 12.2, to terminate this Agreement with respect to any
Property, such Property shall constitute an Excluded Property for purposes of
this Agreement.


 


Section 12.5  Waiver. The provisions of this Article 12
supersede the provisions of any applicable Laws with respect to the subject
matter of this Article 12.


 


ARTICLE 13. ESCROW PROVISIONS


 


The Deposit and any other
sums (including, without limitation, any interest earned thereon) which the
parties agree shall be held in escrow (herein collectively called the “Escrow
Deposits”), shall be held by the Escrow Agent, in trust, and disposed of
only in accordance with the following provisions:


 


Section 13.1  The Escrow Agent shall invest the Escrow
Deposits in government insured interest-bearing instruments reasonably
satisfactory to both Buyer and Seller, shall not commingle the Escrow Deposits
with any funds of the Escrow Agent or others, and shall promptly provide Buyer
and Seller with confirmation of the investments made.


 


Section 13.2  If the Closing occurs, the Escrow Agent shall
deliver the Escrow Deposit to, or upon the instructions of, Seller on the
Closing Date.


 


Section 13.3  If for any reason the Closing does not occur
on the Closing Date, either Seller or Buyer may deliver written notice to
Escrow Agent and the other party stating that the Purchase and Sale Agreement
has terminated and that such party is entitled to disbursement of the Earnest
Money pursuant to the Purchase and Sale Agreement. The receiving party shall
have ten (10) business days after receipt of such notice to object to such
claim by notifying the requesting party and the Escrow Agent in writing of such
objection. If no such notice of objection is received by the Escrow Agent
within the time period specified above and the Escrow Agent received the
evidence that the receiving party has received the aforesaid notice from the
requesting party, the Escrow Agent shall disburse funds equal to the amount specified
in the requesting party’s notice promptly after the expiration of the ten (10) business
day period. If a notice of objection is received by the Escrow Agent, the
Escrow Agent shall take no action until it shall have received (i) written
instructions signed by the Seller and the Buyer or (ii) a decision by a
court of competent jurisdiction directing the Escrow Agent to take certain
action.


 


Section 13.4  The parties acknowledge that the Escrow Agent
is acting solely as a stakeholder at their request and for their convenience,
that the Escrow Agent shall not be deemed to be the agent of either of the
parties, and that the Escrow Agent shall not be liable to either of the parties
for any action or omission on its part taken or made in good faith, and not in
disregard of this Agreement, but shall be liable for its negligent acts and for
any Liabilities (including reasonable attorneys’ fees, expenses and
disbursements) incurred by Seller or Buyer resulting from the Escrow Agent’s
mistake of law respecting the Escrow Agent’s scope or nature of its duties.
Seller and Buyer shall jointly and severally indemnify and hold the Escrow
Agent harmless from and against all Liabilities (including reasonable attorneys’
fees, expenses and disbursements) incurred in connection with the performance
of the Escrow Agent’s duties


 


33

















 


hereunder, except with
respect to actions or omissions taken or made by the Escrow Agent in bad faith,
in disregard of this Agreement or involving negligence on the part of the
Escrow Agent.


 


Section 13.5  Buyer shall pay any income taxes on any
interest earned on the Escrow Deposits. Buyer represents and warrants to the
Escrow Agent that its taxpayer identification number is as set forth adjacent
to Buyer’s signature on the signature page to this Agreement.


 


Section 13.6  The Escrow Agent has executed this Agreement
in the place indicated on the signature page hereof in order to confirm
that the Escrow Agent has received and shall hold the Escrow Deposits in
escrow, and shall disburse the Escrow Deposits pursuant to the provisions of
this Article 13.


 


The provisions of this Article 13
shall survive the Closing (and not be merged therein) or earlier termination of
this Agreement.


 


ARTICLE 14. DISCLAIMERS AND
WAIVERS


 


Section 14.1  NO RELIANCE ON DOCUMENTS. EXCEPT AS
EXPRESSLY STATED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO THE
TRUTH, ACCURACY OR COMPLETENESS OF ANY MATERIALS, DATA OR INFORMATION DELIVERED
BY SELLER OR ANY SELLER PARTY TO BUYER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREBY. BUYER ACKNOWLEDGES AND AGREES THAT ALL MATERIALS, DATA AND
INFORMATION DELIVERED BY SELLER TO BUYER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREBY ARE PROVIDED TO BUYER AS A CONVENIENCE ONLY AND THAT ANY
RELIANCE ON OR USE OF SUCH MATERIALS, DATA OR INFORMATION BY BUYER SHALL BE AT
THE SOLE RISK OF BUYER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. NEITHER
SELLER. NOR ANY AFFILIATE OF SELLER, NOR THE PERSON OR ENTITY WHICH PREPARED
ANY REPORT OR REPORTS DELIVERED BY SELLER TO BUYER SHALL HAVE ANY LIABILITY TO
BUYER FOR ANY INACCURACY IN OR OMISSION FROM ANY SUCH REPORTS.


 


Section 14.2  AS-IS SALE; DISCLAIMERS. BUYER
ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
SELLER IS NOT MAKING, HAS NOT AT ANY TIME MADE, AND SPECIFICALLY NEGATES AND
DISCLAIMS, ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY PROPERTY OR PROPERTIES, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO FITNESS FOR A PARTICULAR
PURPOSE. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL CONVEY TO
BUYER AND BUYER SHALL ACCEPT EACH PROPERTY “AS IS WHERE IS, WITH ALL FAULTS”.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE
PROPERTY LEASES, THE MASTER AGREEMENTS OR IN ANY OTHER DOCUMENT EXECUTED BY
SELLER AND DELIVERED TO BUYER AT CLOSING. BUYER HAS NOT RELIED AND WILL NOT
RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES,


 


34

















 


GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO ANY PROPERTY OR PROPERTIES OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, OFFERING PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROPERTIES) MADE OR FURNISHED BY SELLER, ANY
SELLER PARTY, OR ANY ADVISOR, REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR
INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS
AGREEMENT. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES
INTO ACCOUNT THAT THE PROPERTIES ARE BEING SOLD “AS-IS.”


 


BUYER REPRESENTS TO
SELLER THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL
ESTATE, AND THAT IT HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE PROPERTIES, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL
AND ENVIRONMENTAL CONDITIONS THEREOF. AS BUYER DEEMS NECESSARY OR DESIRABLE TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTIES AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTIES, AND WILL RELY SOLELY
UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR
ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO. OTHER THAN SUCH REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS
AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING
BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND
EXCEPT WITH RESPECT TO MATTERS WHICH BY THE EXPRESS TERMS OF THIS AGREEMENT
SURVIVE THE CLOSING OR TO THE EXTENT SEPARATELY ADDRESSED IN THE APPLICABLE
PROPERTY LEASE, BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER’S PARTNERS, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT
HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER’S PARTNERS, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL
CONDITIONS, ENVIRONMENTAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY
AND ALL OTHER FACTS, OMISSIONS, EVENTS CIRCUMSTANCES OR MATTERS REGARDING THE
PROPERTIES.


 


SECTION 14.3          RELEASE FROM LIABILITY. BUYER
ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO INSPECT AND/OR INVESTIGATE THE
PROPERTIES PRIOR TO CLOSING, AND DURING SUCH PERIOD, OBSERVE THE


 


35

















 


PHYSICAL CHARACTERISTICS
AND EXISTING CONDITIONS OF THE PROPERTIES AND THE OPPORTUNITY TO CONDUCT SUCH
INVESTIGATION AND STUDY ON AND OF THE PROPERTIES AND ADJACENT AREAS AS BUYER
DEEMS NECESSARY, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR
SEPARATELY ADDRESSED IN THE PROPERTY LEASES, BUYER HEREBY FOREVER RELEASES AND
DISCHARGES SELLER FROM ALL RESPONSIBILITY AND LIABILITY (INCLUDING ALL
REGULATORY, CIVIL AND COMMON LAW LIABILITIES AND THIRD PARTY CLAIMS) ARISING
AFTER THE CLOSING, WHETHER KNOWN OR UNKNOWN, RELATING TO THE PHYSICAL,
ENVIRONMENTAL CONDITION OF THE PROPERTIES OR LEGAL COMPLIANCE STATUS OF THE
PROPERTIES AND LIABILITIES UNDER ENVIRONMENTAL PROTECTION, POLLUTION, HUMAN
HEALTH AND SAFETY OR LAND USE LAWS. RULES, REGULATIONS, ORDERS OR REQUIREMENTS
INCLUDING CERCLA, REGARDING THE CONDITION, VALUATION, SALABILITY OR UTILITY OF
THE PROPERTIES, OR ITS SUITABILITY FOR ANY PURPOSE WHATSOEVER (INCLUDING, BUT
NOT LIMITED TO, WITH RESPECT TO THE PRESENCE IN THE SOIL, AIR, STRUCTURES AND
SURFACE AND SUBSURFACE WATERS OF HAZARDOUS MATERIALS). AS BETWEEN SELLER AND
BUYER, AND EXCEPT IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS AGREEMENT OR AS
SEPARATELY ADDRESSED IN THE PROPERTY LEASES, BUYER FURTHER HEREBY ASSUMES THE
RISK OF CHANGES IN APPLICABLE LAWS AND REGULATIONS RELATING TO PAST, PRESENT
AND FUTURE ENVIRONMENTAL CONDITIONS ON THE PROPERTIES AND THE RISK THAT ADVERSE
PHYSICAL CHARACTERISTICS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE
PRESENCE OF FIAZARDOUS MATERIALS OR OTHER CONTAMINANTS, MAY NOT HAVE BEEN
REVEALED BY ITS INVESTIGATION. BUYER FURTHER HEREBY WAIVES WITH RESPECT TO
SELLER AND ITS AFFILIATES (AND BY CLOSING THE TRANSACTIONS CONTEMPLATED
HEREUNDER WILL BE DEEMED TO HAVE WAIVED) ANY AND ALL OBJECTIONS AND COMPLAINTS
(INCLUDING, BUT NOT LIMITED TO, FEDERAL, STATE AND LOCAL STATUTORY AND COMMON
LAW BASED ACTIONS, AND ANY PRIVATE RIGHT OF ACTION UNDER ANY FEDERAL, STATE OR
LOCAL LAWS, REGULATIONS OR GUIDELINES TO WHICH ANY PROPERTY OR PROPERTIES ARE
OR MAY BE SUBJECT, INCLUDING, BUT NOT LIMITED TO, CERCLA), WHETHER KNOWN
OR UNKNOWN, CONCERNING THE PHYSICAL CHARACTERISTICS AND ANY EXISTING CONDITIONS
OF ANY PROPERTY OR PROPERTIES. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR AS SEPARATELY ADDRESSED IN
THE PROPERTY LEASES, BUYER HEREBY FOREVER RELEASES AND DISCHARGES SELLER AND
ITS AFFILIATES FROM ALL RESPONSIBILITY AND LIABILITY (INCLUDING ALL REGULATORY,
CIVIL AND COMMON LAW LIABILITIES AND THIRD PARTY CLAIMS) ARISING BEFORE OR
AFTER THE CLOSING, WHETHER KNOWN OR UNKNOWN, RELATING TO ANY PROPERTY OR
PROPERTIES, INCLUDING, WITHOUT LIMITATION. THE LEGAL COMPLIANCE STATUS OF
SELLER OR ANY CONTINUING OR SUCCESSOR LIABILITY OF SELLER.


 


Section 14.4  Hazardous Materials. “Hazardous
Materials” means any substance which is or contains (i) any “hazardous
substance” as now or hereafter defined in §101(14) of the


 


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Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. §9601 et.
seq. (“CERCLA”), or any regulations promulgated under CERCLA; (ii) any
“hazardous waste” as now or hereafter defined in RCRA, or regulations
promulgated under the Resource Conservation and Recovery Act (42 U.S.C. §6901
et. seq.) (“RCRA”); (iii) any substance regulated by the Toxic
Substances Control Act, as amended (15 U.S.C. §2601 et seq.); (iv) gasoline,
diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos
containing materials, in any form, whether friable or non friable; (vi) polychlorinated
biphenyls; (vii) radon gas; (viii) lead; and (ix) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic or wastes, pollutants or contaminants under Environmental
Requirements or the common law, or any other applicable Laws relating to any
Property. Hazardous Materials shall include, without limitation, any substance,
the presence of which on any Property, (a) requires reporting,
investigation or remediation under Environmental Requirements; (b) causes
or threatens to cause a nuisance on any Property or adjacent property or poses
or threatens to pose a hazard to the health or safety of persons on any
Property or adjacent property; or (c) which, if it emanated or migrated
from any Property, could constitute a trespass.


 


Section 14.5  Environmental Requirements. “Environmental
Requirements” means all laws, ordinances, statutes, codes, rules, regulations,
agreements, judgments, orders, directives, agency guidances and decrees now or
hereafter enacted, promulgated, or amended, or issued by any agency of the
United States, the States, the counties, the cities or any other political
subdivisions in which any Property or Properties are located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
Seller or other owner of any Property, or the use of any Property, relating to
pollution, the protection or regulation of human health and safety, natural
resources or the environment, or the emission, discharge, release or threatened
release of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or waste or hazardous materials into the environment
(including, without limitation, ambient air, surface water, ground water or
land or soil).


 


Section 14.6  ACKNOWLEDGMENT. BUYER ACKNOWLEDGES AND
AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN
INTEGRAL PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT WITH BUYER WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET
FORTH ABOVE.


 


Section 14.7  SURVIVAL OF DISCLAIMERS. THE PROVISIONS
OF THIS ARTICLE 14 SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT.


 


ARTICLE 15. MISCELLANEOUS


 


Section 15.1  Buyer’s Assignment.


 


(a)       Buyer shall not assign this Agreement or
its rights hereunder to any individual or entity without the prior written
consent of Seller, which consent Seller may grant or withhold in its sole and
absolute discretion, and any such assignment shall be null and void ab


 


37

















 


initio.
Any transfer, directly or indirectly, of any stock,
partnership interest or other ownership interest in Buyer shall constitute an
assignment of this Agreement; provided, however, that the foregoing shall not
be construed to prohibit the transfer of stock in a publicly traded company.


 


(b)       Notwithstanding the terms of paragraph
(a), Buyer shall have the right to assign this Agreement at Closing to a
Permitted Inland Affiliate without Seller’s consent so long as Buyer complies
with the terms of paragraphs (c) and (d) hereinbelow. For purposes
hereof, the term “Permitted Inland Affiliate” means any one of The Inland
Real Estate Group, Inc., Inland Real Estate Investment Corporation, Inland
Western Retail Real Estate Trust, Inc., Inland American Real Estate Trust, Inc.,
or Inland Real Estate Corporation (each, an “Inland Company”) or any
directly or indirectly wholly owned subsidiary of an Inland Company which (i) is
solvent at the time of assignment and at the time of Closing, (ii) is not
rendered insolvent by such assignment, and (iii) has sufficient assets to
consummate the transaction contemplated herein. In addition, Seller agrees that
it will not unreasonably withhold its consent to an assignment of this
Agreement at Closing to an entity which is a real estate investment fund
sponsored by, or whose assets are managed and controlled by, an Inland Company.
So long as Buyer complies with the terms of paragraphs (c) and (d) hereinbelow
and the assignee satisfies the requirements of clauses (i) through (iii) above.


 


(c)       In the event Buyer intends to assign its
rights hereunder:


 


(i)        Buyer shall send Seller written notice
of its request at least ten (10) Business Days prior to the Closing Date,
which notice shall include the legal name and structure of the proposed
assignee and evidence reasonably satisfactory to Seller of the valid legal
existence of Buyer’s assignee, its qualification (if necessary) to do business
in the jurisdictions in which the Properties are located and of the authority
of Buyer’s assignee to execute and deliver any and all documents required of
Buyer under the terms of this Agreement; and


 


(ii)       Buyer shall provide Seller any other
information that Seller may reasonably request with respect to the proposed
assignee; and


 


(iii)      Buyer and the proposed assignee shall
execute an assignment and assumption of this Agreement pursuant to which Buyer’s
obligations hereunder are expressly assumed by such assignee.


 


(d)       Notwithstanding any provision in this
Agreement to the contrary:


 


(i)        Any permitted assignment by Buyer shall
not relieve Buyer of any of its obligations and liabilities hereunder including
obligations and liabilities which survive the Closing or the termination of
this Agreement, nor shall any such assignment alter, impair or relieve such
assignee from the waivers, acknowledgements and agreements of Buyer set forth
herein, including, but not limited to, those set forth in Article 5,
Article 9 and Article 10 and Article 14
hereof, all of which will be binding upon any assignee of Buyer.


 


38

















 


(ii)       No transfer by Buyer of any interest in
this Agreement and no transfers of direct or indirect interests in Buyer shall
be permitted if the same would cause the representations and warranties made in
Section 9.1(c) to be untrue, inaccurate or incomplete and
Buyer covenants to cooperate with Seller’s requests to provide documentation
reasonably necessary or desirable for Seller to verify that such
representations and warranties are true, accurate and complete at all times
prior to the Closing. If Buyer fails to provide the requested documentation to
Seller at least ten (10) Business Days prior to the Closing Date, then any
such assignment or transfer shall be null and void.


 


(e)       Buyer contemplates dividing the
Properties into no more than eight portfolios, each portfolio to be purchased
by Buyer or a Permitted Inland Affiliate. To accommodate Buyer, Seller agrees
that Buyer may elect to make up to but no more than eight (8) partial
assignments of this Agreement at Closing with each such partial assignment
being to a Permitted Inland Affiliate designated by Buyer, and with each such
partial assignment being limited to a separate portfolio of Properties,
provided, however, (i) Buyer shall not thereby be released or relieved of
any of Buyer’s obligations in this Agreement, (ii) Seller’s liability
under this Agreement (in the aggregate or with respect to any Property) shall
not be increased in any respect, either before or after Closing, (iii) at
all times up to and through Closing, Seller shall be entitled to deal
exclusively with, and to rely exclusively on, the Buyer named on the first page of
this Agreement, and (iv) each such partial assignment and each assignee
shall satisfy all other requirements of this Section 15.1. In no
event shall Buyer assign this Agreement in whole or in part prior to Closing,
and any partial assignment by Buyer at Closing shall be made pursuant to an
assignment and assumption agreement approved by Seller, such approval not to be
unreasonably withheld or delayed.


 


Section 15.2  Designation Agreement. Section 6045(e) of
the United States Internal Revenue Code and the regulations promulgated
thereunder (herein collectively called the “Reporting Requirements”)
require an information return to be made to the United States Internal Revenue
Service, and a statement to be furnished to Seller, in connection with the
Transaction. Escrow Agent is either (x) the person responsible for closing
the Transaction (as described in the Reporting Requirements) or (y) the
disbursing title or escrow company that is most significant in terms of gross
proceeds disbursed in connection with the Transaction (as described in the
Reporting Requirements). Accordingly:


 


(a)       Escrow Agent is hereby designated as the “Reporting
Person” (as defined in the Reporting Requirements) for the Transaction.
Escrow Agent shall perform all duties that are required by the Reporting
Requirements to be performed by the Reporting Person for the Transaction.


 


(b)       Seller and Buyer shall furnish to Escrow
Agent, in a timely manner, any information requested by Escrow Agent and
necessary for Escrow Agent to perform its duties as Reporting Person for the
Transaction.


 


(c)       Escrow Agent hereby requests Seller to
furnish to Escrow Agent Seller’s correct taxpayer identification number. Seller
acknowledges that any failure by Seller to provide Escrow Agent with Seller’s
correct taxpayer identification number may subject Seller to civil or


 


39

















 


criminal penalties
imposed by law. Accordingly, Seller hereby certifies to Escrow Agent, under
penalties of perjury, that Seller’s correct taxpayer identification number is
58-0466330.


 


(d)       Each of the parties hereto shall retain
this Agreement for a period of four (4) years following the calendar year
during which the Closing occurs.


 


Section 15.3  Survival/Merger. Except for the
provisions of this Agreement which are explicitly stated to survive the
Closing, (a) none of the terms of this Agreement shall survive the
Closing, and (b) the delivery of the Purchase Price, the Deed and the
other Closing Documents with respect to any Property and the acceptance thereof
shall effect a merger, and be deemed the full performance and discharge of
every obligation on the part of Buyer and Seller to be performed with respect
to such Property.


 


Section 15.4  Integration; Waiver. This Agreement,
together with the Schedules hereto (including the Access Agreement Addendum and
the Confidentiality Agreement), embodies and constitutes the entire
understanding between the parties with respect to the Transaction and all prior
agreements, understandings, representations and statements, oral or written,
are merged into this Agreement. Neither this Agreement nor any provision hereof
may be waived, modified, amended, discharged or terminated except by an
instrument signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument. No waiver by either party hereto of
any failure or refusal by the other party to comply with its obligations
hereunder shall be deemed a waiver of any other or subsequent failure or
refusal to so comply.


 


(a)       Governing Law. This Agreement
shall be governed by, and construed in accordance with, the Laws of the State
of Georgia.


 


Section 15.5  Captions Not Binding; Schedules. The
captions in this Agreement are inserted for reference only and in no way
define, describe or limit the scope or intent of this Agreement or of any of
the provisions hereof. All Schedules attached hereto shall be incorporated by
reference as if set out herein in full.


 


Section 15.6  Binding Effect. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.


 


Section 15.7  Severability. If any term or provision
of this Agreement or the application thereof to any persons or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforced to the fullest extent permitted by law.


 


Section 15.8  Notices. Any notice, request, demand,
consent, approval and other communications under this Agreement shall be in
writing, and shall be deemed duly given or made at the time and on the date
when received by facsimile or when personally delivered as shown on a receipt
therefor (which shall include delivery by a nationally recognized overnight
delivery service) or three (3) Business Days after being mailed by prepaid
registered or certified


 


40

















 


mail, return receipt
requested, to the address for each party set forth below. Any party, by written
notice to the other in the manner herein provided, may designate an address
different from that set forth below.


 


IF TO BUYER:


 


Inland Real Estate
Acquisitions, Inc.

2901 Butterfield Road, Oak Brook, IL 60523

Attention: G. Joseph Cosenza

Telephone: 630-218-4948

Telecopy #: 630-218-4935

E-Mail Address: joe@inlandgroup.com


 


COPY TO:


 


Inland Real Estate Group, Inc.

2901 Butterfield Road, Oak
Brook, IL 60523

Attention: Gary Pechter, Esq.

Telephone #: 630-645-2084

Telecopy #: 630-218-4900

E-Mail Address: gpechter@inlandgroup.com


 


IF TO SELLER:


 


SunTrust Bank

Corporate Real Estate Department

303 Peachtree Center Avenue, 6th Floor

Suite 670

Atlanta, Georgia 30303

Attention: Douglas K. Sinclair

Telephone #: 404-827-6600

Telecopy #: 404-827-6572

Email: doug.sinclair@suntrust.com


 


with a copy to:


 


SunTrust Banks, Inc.

919 East Main Street

14th Floor (Mail Code HDQ 8814)

Richmond, VA 23219

Attention: David W. Hagy

Telephone #: 804-782-5035

Telecopy #: 804-782-5889

Email: david.hagy@suntrust.com


 


41

















 


COPY TO:


 


King & Spalding
LLP

1180 Peachtree Street

Atlanta, Georgia 30309

Attention: David G. Williams/Dan L. Heller

Telephone #: (404) 572-4600

Telecopy #: (404) 572-5131

E-Mail Address: dwilliams@kslaw.com/dheller@kslaw.com


 


Section 15.9  Counterparts. This Agreement may be
executed in counterparts, each of which shall be an original and all of which
counterparts taken together shall constitute one and the same agreement.


 


Section 15.10
No Recordation. Seller and Buyer each agrees that neither this Agreement
nor any memorandum or notice hereof shall be recorded and Buyer agrees (a) not
to file any notice of pendency or other instrument (other than a judgment)
against any Property or Properties in connection herewith and (b) to
indemnify Seller against all Liabilities (including reasonable attorneys’ fees,
expenses and disbursements) incurred by Seller by reason of the filing by Buyer
of such notice of pendency or other instrument.


 


Section 15.11 Additional Agreements; Further Assurances.
Subject to the terms and conditions herein provided, each of the parties hereto
shall execute and deliver such documents as the other party shall reasonably
request in order to consummate and make effective the Transaction; provided,
however, that the execution and delivery of such documents by such party
shall not result in any additional liability or cost to such party.


 


Section 15.12
Construction. The parties acknowledge that each party and its counsel
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement,
any amendment or modification hereof or any of the Closing Documents.


 


Section 15.13
Maximum Aggregate Liability. Notwithstanding any provision to the
contrary contained in this Agreement or the Closing Documents, but subject to Section 2.3,
the maximum aggregate liability of Seller Parties, and the maximum aggregate
amount which may be awarded to and collected by Buyer, in connection with the
Transaction, the Properties or any Property under this Agreement and under all
Closing Documents (including, without limitation, in connection with the breach
of any of Seller’s Warranties for which a claim is timely made by Buyer) shall
not exceed NINE MILLION THREE HUNDRED SEVENTY-TWO THOUSAND TWO HUNDRED
SIXTY-EIGHT AND 20/100 Dollars ($9,372,268.20) and shall be reduced by any
Deposit Reimbursement Amount released to Buyer pursuant to the terms of Section 8.5.
The provisions of this Section shall survive the Closing (and not be
merged therein) or any earlier termination of this Agreement.


 


42

















 


Section 15.14
Time of Essence. Time is of the essence with respect to this Agreement.


 


Section 15.15
WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY
PROCEEDINGS BROUGHT BY THE OTHER PARTY IN CONNECTION WITH ANY MATTER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THE TRANSACTION, THIS AGREEMENT, THE
PROPERTY OR THE RELATIONSHIP OF BUYER AND SELLER HEREUNDER. THE PROVISIONS OF
THIS SECTION SHALL SURVIVE THE CLOSING (AND NOT BE MERGED THEREIN) OR ANY
EARLIER TERMINATION OF THIS AGREEMENT.


 


Section 15.16
Facsimile and .PDF Signatures. Signatures to this Agreement transmitted
by telecopy or via e-mail by .PDF file shall be valid and effective to bind the
party so signing. Each party agrees to promptly deliver an execution original
to this Agreement with its actual signature to the other party, but a failure
to do so shall not affect the enforceability of this Agreement, it being
expressly agreed that each party to this Agreement shall be bound by its own
telecopied or e-mailed signature and shall accept the telecopied or e-mailed
signature of the other party to this Agreement.


 


Section 15.17
Radon Gas. Pursuant to Florida Statute 404.056 (Subsection 5), Buyer is
hereby notified that radon is a naturally occurring radioactive gas that, when
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your county
health department.


 


Section 15.18
Energy-Efficiency Information Brochure. With respect to each Property
located in Florida, Buyer acknowledges receipt of the energy efficiency
information brochure and acknowledges that it has the option for an energy
efficiency rating on such Properties.


 


Section 15.19
Attorneys’ Fees. Should either Buyer or Seller employ attorneys to
enforce any of the provisions hereof, the party against whom final judgment is
entered agrees to repay the prevailing party all reasonable costs, charges and
expenses, including attorneys’ fees and expenses and court costs, expended or
incurred in connection therewith. Notwithstanding anything contained herein to
the contrary, (i) “attorneys’ fees” are not, and shall not be, statutory
attorneys’ fees under the Official Code of Georgia (“O.C.G.A.”), (ii) if,
under any circumstances either Seller or Buyer is required hereunder to pay any
or all of another party’s attorneys’ fees and expenses, the responsible party
shall be responsible only for actual legal fees and out of pocket expenses
actually incurred by the other party at customary hourly rates for the work
done, and (iii) neither Seller nor Buyer shall be liable under any
circumstances for additional attorneys’ fees or expenses under O.C.G.A. Section 13-1-11.


 


[Remainder of page intentionally
blank]


 


43

















 


IN WITNESS WHEREOF,  each party hereto has caused this
Agreement to be duly executed to be effective as of the day and year first
above written.


 


	
   

  	
  SELLER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SUNTRUST
  BANK,

  
	
   

  	
  a Georgia banking
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/
  Douglas K. Sinclair

  
	
   

  	
  Name:

  	
  Douglas K. Sinclair

  
	
   

  	
  Title:

  	
  S.V.P.

  
	
   

  	
   

  
	
   

  	
  FEIN:

  	
       58-0466330

  
						



 


 


This is a signature page to, and may be attached to a
master counterpart of the Purchase and Sale Agreement between SunTrust Bank, as
Seller, and Inland Real Estate Acquisitions, Inc., as Purchaser, with
respect to certain properties located in Alabama, the District of Columbia,
Florida, Georgia, Maryland, North Carolina, South Carolina, Tennessee and
Virginia.


 


First American Title Insurance Company, as Escrow Agent, is a
party to such Purchase and Sale Agreement for the limited purposes set forth
therein.


 


44

















 


IN WITNESS WHEREOF, each party hereto
has caused this Agreement to be duly executed to be effective as of the day and
year first above written,


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  INLAND
  REAL ESTATE ACQUSITIONS, INC.,

  
	
   

  	
  an Illinois corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ G. Joe Cosenza

  
	
   

  	
  Name:

  	
  G. Joseph Cosenza

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  FEIN:

  	
   

  
						



 


 


This is a signature page to, and may be attached to a
master counterpart of the Purchase and Sale Agreement between SunTrust Bank, as
Seller, and Inland Real Estate Acquisitions, Inc., as Purchaser, with
respect to certain properties located in Alabama, the District of Columbia,
Florida, Georgia, Maryland, North Carolina, South Carolina, Tennessee and
Virginia.


 


First American Title Insurance Company, as Escrow Agent, is a
party to such Purchase and Sale Agreement for the limited purposes set forth
therein.


 


45

















 


AGREEMENT
OF ESCROW AGENT


 


The undersigned
has executed this Agreement solely to confirm its agreement to (a) hold
the Escrow Deposits in escrow in accordance with the provisions hereof and (b) comply
with the provisions of Article 13 and Section 15.2.


 


In witness
whereof, the undersigned has executed this Agreement as of September 27,
2007.


 


	
   

  	
  FIRST
  AMERICAN TITLE INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Heide
  H. Shanahan

  
	
   

  	
  Name:

  	
  Heide H. Shanahan

  
	
   

  	
  Title:

  	
   Vice President

  
					



 


 


This is a signature page to, and may be attached to a
master counterpart of the Purchase and Sale Agreement between SunTrust Bank, as
Seller, and Inland Real Estate Acquisitions, Inc., as Purchaser, with
respect to certain properties located in Alabama, the District of Columbia,
Florida, Georgia, Maryland, North Carolina, South Carolina, Tennessee and
Virginia.


 


First American Title Insurance Company, as Escrow Agent, is a
party to such Purchase and Sale Agreement for the limited purposes set forth
therein.


 


46