**Exhibit10.443**

 

**AMENDMENT****TO AGREEMENT**

 

THIS AMENDMENT TO AGREEMENT (the “Amendment”) is made and entered intoas of the 8thof November 2004, by and between **KIMCOTAMPA LP,**a Florida limited partnership (“Seller”) and **INLAND REAL ESTATE ACQUISITIONS, INC.**(“Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Sellerand Buyer entered into that certain Agreement of Sale dated September 3,2004, (as amended) (“the Agreement”), for the sale and purchase of the propertycommonly known as Northwoods Square located in Tampa, Florida, as legallydescribed by the Agreement (the “Property”).

 

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

 

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

 

1.     Prior to Closing, Buyer shall have approvedof the Amendment to Development Order described in paragraph 4.4 of theAgreement and the post closing obligations to be assumed by an affiliate ofSeller in regard to same.

 

2.     Paragraph 11.1 is hereby amended by placing aperiod immediately after the words “Closing Date” in line 10 thereof andtruncating the remainder of that sentence.

 

3.     Paragraph 11.2(B)(d) (Cash Flow HoldbackEscrow) is hereby deleted in its entirety.

 

4.     A new paragraph 3 D, is hereby added: “Notwithstandingthe terms of this Section 3 which describe payment of the Purchase Priceby Purchaser to Seller at Closing, a portion of the $20,200,000 Purchase Price shallbe subject to the “Earnout” provisions hereinafter described.

 

(i)            At Closing, Buyer shall pay to Seller thatpart of the Purchase Price equal to the value of the Property then existing(based upon tenants under leases satisfying the Tenant Conditions (ashereinafter defined in paragraph 11.1, hereof)): Thirteen Million Nine HundredSixty-three Thousand Eight Hundred Forty-seven and no/100

 

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Dollars ($13,963,847.00)(the “Initial Closing Payment”).

 

(ii)           For a period of one (1) yearfrom the Closing Date (the “Earnout Period”), Seller shall have the right toearn payment from Buyer of an amount equal to the difference between thePurchase Price (less the Tire Kingdom Payment (as hereinafter defined)) and theInitial Closing Payment: Four Million Six Hundred Twenty-five Thousand FourHundred Sixteen and no/100 Dollars ($4,625,416.00) (the “Building C Payment”)(the “Building C Earnout”). The Building C Earnout applies to the Propertyspaces described upon Exhibit A, attached hereto and made a part hereof (the “EarnoutSpaces”). The Building C Payment shall be made by Buyer to Seller at one ormore Earnout closings (to occur no more frequently than every 30-days) duringthe Earnout Period upon notice to Buyer by Seller (accompanied by a currenttitle later-date search showing no liens or other encumbrances having beenplaced of record by reason of Seller or tenants under Earnout Spaces activitiesupon the Property) stating that one or more of the tenants for the EarnoutSpaces have satisfied the Tenant Conditions (including copies of documentationevincing same).

 

(a)           One qualification to the requirement thateach tenant for the Earnout Spaces must satisfy each of the Tenant Conditionsprior to an Earnout closing is that in the event any 2-tenants (only) underlease for an Earnout Space have satisfied each of the Tenant Conditions, exceptthat such tenant(s) have not opened for business to the public, Seller may callfor an Earnout closing as to those 2-tenants (only).

 

(b)           A second qualification to the requirementthat each tenant for the Earnout Spaces must satisfy each of the Tenant  Conditionsprior to  an Earnout closing is thatSeller may tender a Seller estoppel in the form, and in lieu, of a  tenant estoppel from the applicable tenant. TheSeller estoppel  shall  survive the applicable Earnout closing for aperiod of time from the earnout closing until the first to occur of: (A)

 

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one (1) year following the Earnout closing and(B) the date an acceptable (to Buyer) tenant estoppel is received from theapplicable tenant.

 

(c)           In addition, with regard to theFriedman Jeweler space(described upon Exhibit A), the Building C Payment is subject to adjustment(increase or decrease) by dividing the base rent divider of .079296 into theinitial year base rent achieved by the lease then signed for the FriedmanJeweler space (the “Friedman Jeweler Space Achieved Value”). The Building CPayment adjustment in regard to the Friedman Jeweler space shall be calculatedby subtracting the proforma value of the Friedman Jeweler space: Five HundredOne Thousand Nine Hundred Sixteen and 87/100 Dollars ($501,916.87) from theFriedman Jeweler Space Achieved Value. If the sum is a positive number, theBuilding C Payment shall be increased by that amount. If the sum is a negativenumber, the Building C Payment shall be decreased by that amount.

 

(iii)          During the Earnout Period, Seller shall havethe right to earn payment from Buyer of an amount equal to One Million SixHundred Ten Thousand Seven Hundred Thirty-seven and no/100 Dollars($1,610,737.00) (the “Tire Kingdom Payment”). The Tire Kingdom Payment shall bemade by Buyer to Seller upon notice from Seller to Buyer during the EarnoutPeriod (accompanied by a current title later-date search showing no liens orother encumbrances having been placed of record by reason of Seller or tenantsunder Earnout Spaces activities upon the Property) stating that the TireKingdom tenant has satisfied the Tenant Conditions (including copies ofdocumentation evincing same).”

 

5.     In regard to the construction activities ofSeller upon the Property after the Closing Date, Seller agrees to comply withthe Development Covenants described upon Exhibit B, attached hereto and made apart hereof.

 

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6.     This Amendment may be executed in one or morecounterparts, each of which shall constitute an original and all of which takentogether shall constitute one Amendment. Each person executing this Amendmentrepresents that such person has fall authority and legal power to do so andbind the party on whose behalf he or she has executed this Amendment.  Any counterpart to this Amendment may beexecuted by facsimile copy and shall be binding on the parties.

 

7.     In recognition of the structure of thepurchase and sale transaction described by the Agreement, as of the ClosingDate, Seller shall assign its interests in and to the Agreement to an affiliateof Seller (as constituted as of the date hereof).  References to Seller described by thisAgreement shall be to Seller’s assignee from and after the Closing Date.

 

Except as modified herein by this Amendment, theAgreement shall remain unmodified and in full force and effect.

 

**(2-SIGNATUREPAGES FOLLOW)**

 

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|            | **BUYER:**                                             |
|-----------------|--------------------------------------------------------|
|            | **INLAND REAL****ESTATE** **ACQUISITIONS,  INC.** |
|            |                                                   |
| **WITNESSES:**  |                                                   |
|            |                                                   |
| /s/ [ILLEGIBLE] |                                                   | By: | /s/ G. Joseph Cosenza |
|            |                                                   |   | G. Joseph Cosenza,  President |
| /s/ [ILLEGIBLE] |                                                   |   | Date of Execution: | 11/8/04 |   |

 

 
|           | **SELLER:**                                                                |
|----------------|----------------------------------------------------------------------------|
|           | **KIMCO TAMPA, L.P.**                                                      |
|           |                                                                       |
|           | **By:**       **Kimco Tampa 470, Inc.** |
|           |                                                                       |
|           |                                                                       |
| **WITNESSES:** |                                                                       |
|           |                                                                       |
|           |                                                                       | By: |   |
|           |                                                                       | Name: |   |
|           |                                                                       | Title: |   |
|           |                                                                       | Date  of Execution: |   |
|                |                                                                            |  |  |  |  |

 

 
| **WITNESSES:** | **ESCROW AGENT:**                     |
|----------------|---------------------------------------|
|           | **CHICAGO TITLE & TRUST COMPANY** |
|           |                                  |
|           |                                  |
|           |                                  | By: |   |   |
|           |                                  |   | Nancy  Castro, Senior Escrow Officer |   |
|           |                                  |   | Date  of Execution: |   |   |
|                |                                       |  |  |  |  |  |  |

 

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|            | Inland  Guarantor signs to confirm its  agreement with the provisions of Section 3  D., hereof. |
|-----------------|------------------------------------------------------------------------------------------------------|
| ** **      |                                                                                                 |
| **WITNESSES:**  | **INLAND GUARANTOR:  INLAND WESTERN RETAIL REAL  ESTATE TRUST INC.,  a Maryland corporation**        |
| /s/ [ILLEGIBLE] |                                                                                                 |
|            |                                                                                                 |
| /s/ [ILLEGIBLE] |                                                                                                 |   |   |
|            |                                                                                                 |   |
|            |                                                                                                 | By: | /s/ G. Joe Cosenza |
|            |                                                                                                 | Name:  G. Joe Cosenza |
|            |                                                                                                 | Title: | Authorized  Agent |
|            |                                                                                                 | Date  of Execution: | 11/8/04 |
|                 |                                                                                                      |  |  |  |  |  |  |

 

 
|           | Kimco  Guarantor signs to confirm its  agreement with the provisions of Section 3  D. (ii)(b), and Section 5* *hereof. |
|----------------|---------------------------------------------------------------------------------------------------------------------------------------|
| ** **     |                                                                                                                                  |
| **WITNESSES:** | **KIMCO GUARANTOR:  KIMCO DEVELOPERS, INC.**                                                                                          |
| ** **     | ** **                                                                                                                            |
|           |                                                                                                                                  |
|           |                                                                                                                                  |   |   |
|           |                                                                                                                                  | By: |   |   |
|           |                                                                                                                                  | Name: |   |   |
|           |                                                                                                                                  | Title: |   |   |
|           |                                                                                                                                  | Date  of Execution: |   |   |
|                |                                                                                                                                       |  |  |  |  |  |  |  |  |

 

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EXHIBIT A

PAD C EARNOUT SPACES

 

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EXHIBIT B

DEVELOPMENT COVENANTS

 

a.     To the fullest extent permitted by law,Seller hereby agrees to indemnify, defend and hold Purchaser and its agents andemployees, harmless from and against any and all causes of action, damages, losses,demands, judgments, liens, claims, costs, and expenses (including reasonableattorney’s fees and court costs) which arise or occur in connection with: (1)any matter related to bodily injury, death or property damage arising in theperformance of Seller’s work, and (2) any mechanics lien claim arising in theperformance of Seller’s work, and (3) any matter related to the payment ofmoney owed for the obligations of Seller in regard to the performance of Seller’swork. In the event any liens are placed of record in regard to the performanceof Seller’s work, within 30-days from the date Seller is notified thereof,Seller agrees that Seller shall either cause said encumbrance to be removedfrom title or Seller shall bond over said encumbrance or provide appropriateindemnities to the Title Company as may be required to allow the Title Companyto issue its later date endorsement (or like-coverage) to Buyer and its lender,if any, under its respective Policies of title insurance.  In the event a lien is placed of recordagainst the Property by reason of tenant work, Seller agrees to reasonablycooperate with Buyer in regard to causing said tenant to cause the lien to beremoved in accordance with the terms of the applicable lease.

 

b.     Seller, or Seller’s contractor, shallpurchase and maintain, in a company or companies lawfully authorized to dobusiness in the State of Florida, comprehensive general liability insurance andinsurance for protection from claims under worker’s or workmen’s compensationacts and other employee benefit acts which are applicable, claims for damagesbecause of bodily injury, including death, and from claims for damages, otherthan for the Seller’s work itself, to property which may arise out of or resultfrom the performance of Seller’s work, whether actually performed by Seller or acontractor/subcontractor or anyone directly or indirectly employed by any ofthem.  This insurance shall be writtenfor not less than $2,000,000.00 and shall include contractual liability insuranceapplicable to Seller’s obligations.

 

c.     Seller shall assign to Purchaser allwarranties in respect of Seller’s work at the time of the applicable Earnoutclosing.

 

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**AMENDMENTTO AGREEMENT**

 

THIS AMENDMENT TOAGREEMENT (the “Amendment”) is made and entered into as of the 12thof October 2004, by and between **KIMCO TAMPA, L.P.,**a Florida limited partnership (“Seller”) and **INLAND REALESTATE ACQUISITIONS, INC.** (“Buyer”).

 

W I T N E S S E TH:

 

WHEREAS, Seller and Buyerentered into that certain Agreement of Sale dated September 3, 2004, (“theAgreement”), for the sale and purchase of the property commonly known asNorthwoods Shopping Center located in Tampa, Florida, as legally described bythe Agreement (the “Property”).

 

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

 

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

 

1.     The “Due Diligence Period”, as defined in Section 1.7of the Agreement is hereby amended by deleting the words “on the 30th business day thereafter or the firstbusiness day after such 30th day if such 30th day is not a business day,” and inserting the date of “November 1,2004” therein.

 

2.     This Amendment may be executed in one or morecounterparts, each of which shall constitute an original and all of which takentogether shall constitute one Amendment.  Each person executing this Amendmentrepresents that such person has full authority and legal power to do so andbind the party on whose behalf he or she has executed this Amendment.  Any counterpart to this Amendment may beexecuted by facsimile copy and shall be binding on the parties.

 

Except as modified herein by this Amendment, theAgreement shall remain unmodified and in full force and effect.

 

**(SIGNATUREPAGE FOLLOWS)**

 

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|           | **BUYER:**                                             |
|----------------|--------------------------------------------------------|
|           | **INLAND REAL****ESTATE** **ACQUISITIONS,  INC.** |
|           |                                                   |
|           |                                                   |
| **WITNESSES:** |                                                   |
|           |                                                   |
|           |                                                   | By: | /s/ G. Joseph Cosenza |   |
|           |                                                   |   | Name: |
|           |                                                   |   | Title: |
|           |                                                   |   | Date: | 10-12-04 |   |
|                |                                                        |  |  |  |  |  |

 

 
|            | **SELLER:**                                                             |
|-----------------|-------------------------------------------------------------------------|
|            | **KIMCO TAMPA, L.P.**                                                   |
|            |                                                                    |
|            | **By:       Kimco Tampa  470, Inc.** |
|            |                                                                    |
|            |                                                                    |
| **WITNESSES:**  |                                                                    |
|            |                                                                    |
| /s/ [ILLEGIBLE] |                                                                    | By: | /s/ Daniel C. Slattery |   |
|            |                                                                    |   | Name: | DANIEL C. SLATTERY |   |
|            |                                                                    |   | Title: | Executive Vice President |   |
|            |                                                                    |   | Date: | 10-12-04 |   |
|                 |                                                                         |  |  |  |  |  |  |  |

 

 
|                                  | Escrow  Agent signs to confirm its agreement  with the provisions of Section 3(A)(ii)  hereof: |
|---------------------------------------|-----------------------------------------------------------------------------------------------------|
| ** **                            |                                                                                                |
| ** **                            |                                                                                                |
| **WITNESSES:**                        | **ESCROW AGENT:**                                                                                   |
| **CHICAGO TITLE & TRUST COMPANY** | ** **                                                                                          |
|                                  |                                                                                                |
|                                  |                                                                                                | By: | /s/  Nancy Castro |   |
|                                  |                                                                                                |   | Name: | Nancy Castro |   |
|                                  |                                                                                                |   | Title: | AVP |   |
|                                  |                                                                                                |   | Date: | 10/13/04 |   |
|                                       |                                                                                                     |  |  |  |  |  |  |

 

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**AGREEMENT OFSALE**

 

**THIS AGREEMENT**made this 3rd****day of Sept, 2004, between **Kimco Tampa, LP,**a Florida Limited Partnership, with an office at3333 New Hyde Park Road, Suite 100 (P. O. Box 5020), New Hyde Park, New York11042 (hereinafter, “Seller”), and **INLAND REAL ESTATEACQUISITIONS, INC.,** an Illinois Corporation, with an office at 2901Butterfield Road, Oak Brook, Illinois 60523 (hereinafter, “Buyer”).

 

WHEREAS, prior to closing the partners of Seller shall transfer theirinterests in Seller to a newly formed Limited Partnership, Kimco Tampa Holding,L.P. (Affiliate Seller);

 

WHEREAS, prior to closing Seller shall merge into the newly formedLimited Liability company known as Inland Western Tampa Northwoods, LLC, aDelaware limited liability company whose sole member and owner of 100%Membership Interests (the “Interests”) shall be Affiliate Seller;

 

**WHEREAS**,Seller owns a portion of the shopping center commonly known as Northwoods Square,located in Tampa, Florida (the “Shopping Center”) and Seller wishes to sell andBuyer wishes to buy Seller’s entire right title and interest in the ShoppingCenter;

 

WHEREAS, at closing Affiliate Seller shall then assign all of its interestsin Owner to Buyer; and

 

WHEREAS, as the Shopping Center consists of: (a) the Real Estate subjectto the Permitted Exceptions and Space Leases, (b) the Space Leases, (c) anyPersonal Property, (d) any land lying in the bed of any street, road or avenue,opened or proposed, in front of or adjoining the Real Estate, (e) any strips orgores adjoining the Real Estate, (f) all appurtenances and hereditamentsappertaining to the Real Estate (g) the right to use, in common with others thename “Northwoods Shopping Center” provided Buyer’s use of same is done in acommercially reasonable manner in connection with the first class operation ofthe Property.

 

**NOW, THEREFORE**,in consideration of the mutual covenants herein contained, the parties agree asfollows:

 

1.**            ****DEFINITIONS**.****The following expressions shall have themeanings set forth below:

 

1.1           “Real Estate” means the fee interest in the land described on Exhibit1 and all of the buildings and other improvements constructed thereon.

 

1*.*2           “Space Lease(s)” means all lease(s),license(s), concessions or other occupancy or use agreements, including allmodifications, addenda and supplements thereto and guarantees thereof,applicable to any part of the Real Estate. All existing Space Leases as of thedate hereof are listed on attached Exhibit 2.

 

1.3           “Property” means collectively all of Seller’s rights and interests inthe Real Estate, the Space Leases and the other assets described in Article 2hereof.

 

1.4           “Closing Date” means the date on which Closing occurs.  “Closing” means the event whereby title tothe Property is actually conveyed by Seller to Buyer.

 

1.5           “Service Contracts” means all written agreements pursuant to whichgoods, services or supplies are furnished on a recurring basis for theoperation of the Real Estate and are approved by Buyer during the Due DiligencePeriod (as hereinafter defined). Copies of such Service Contracts are attachedas**Exhibit 3.

 

1.6           “Escrow Agent” means Chicago Title and Trust Company, 171 North Clark Street,Chicago, Illinois, Attn: Nancy Castro, Escrow Agent. Chicago Title and TrustCompany may also be hereinafter referred to as the “Title Company”.

 

1.7           “Due Diligence Period” means a period of time commencing on the date afully executed copy of this Agreement is received by Buyer in accordance with Article 13hereof and expiring at midnight, New York time, on the 30th business daythereafter or the first business**dayafter such 30th day if such 30th day is not a**business day.

 

1.8           “Permitted Exceptions” means those certain title exceptions set forth inExhibit 6 attached hereto that are approved by Buyer in accordance withthe terms of Article 6 hereof.

 

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1.9           “Personal Property” means all personal property and equipment (if any)owned by Seller and located on the Real Estate.

 

1.10         “Deposit” means a**deposit,to be paid by Buyer to Escrow Agent upon the execution hereof, in the amount of**Three Hundred Thousand ($300,000.00) Dollars,**plus all interest earned thereon.

 

1.11         “REA” means that certain Operation and Easement Agreement by and amongTarget Corporation, Kimco Tampa L.P., Northwood Centers, LLP and MJG, LTD,dated March 23, 2001 and recorded in

 

2.             **SALE AND P****URCHASE**.****In accordance with the provisions of thisAgreement, Seller agrees to sell, convey, assign and transfer to Buyer, and Buyeragrees to purchase and acquire from Seller, all of Seller’s right, title andinterest in and to the (“Interests”).

 

3.             **PURCHASE PRICE**.The “Purchase Price” for the Property shall be **Twenty**Million, **Two Hundred** Thousand, (**$20,200,000.00)** Dollars plus the Contingent Amount if any,as set forth in Section 11.6 hereof, shall be paid as follows:

 

A.            (i)            Upon the execution of this Agreement Buyershall pay the Deposit to Escrow Agent by bank check to the order of EscrowAgent or wire transfer of federal funds for immediate credit.

 

(ii)           The Deposit shall be invested by Escrow Agent in a sound financial institution’smoney market fund or account which pays interest or dividends, in Escrow Agent’sname separate from its personal and business accounts. All investment decisionsshall be made by Buyer. If no Closing occurs, all interest or dividends earnedshall be paid to the party entitled to the escrowed proceeds, which party shallpay all income taxes thereon. The parties shall furnish Escrow Agent with theirrespective tax identification numbers. At Closing, Escrow Agent shall pay theDeposit (together with all interest earned thereon) to Seller, and theprincipal portion of the Deposit shall be a credit against the Purchase Price(but no such credit shall be given for the interest earned on such principal portionof the Deposit, if any, which shall be the property of Buyer). All escrow fees,if any, charged by Escrow Agent shall be equally shared by Seller and Buyer.Escrow Agent shall hold the Deposit as set forth above unless either Seller orBuyer makes a written demand upon Escrow Agent for the Deposit accompanied byan affidavit signed by the party making the demand stating sufficient facts toshow that said party is entitled to receive the Deposit pursuant to the termsof this Agreement. Upon receipt of such demand, Escrow Agent shall give ten(10) days written notice to the other party of such demand and of Escrow Agent’sintention to remit the Deposit to the party making the demand on the stateddate, together with a copy of the affidavit. If Escrow Agent does not receive awritten objection before the proposed date for remitting the Deposit, EscrowAgent is hereby authorized to so remit. If, however, Escrow Agent actuallyreceives written objection from the other party before the proposed date onwhich the Deposit is to be remitted, Escrow Agent shall continue to hold theDeposit until otherwise directed by joint written instructions from Seller andBuyer or until a final judgment of an appropriate court.  In the event of a dispute, Escrow Agent mayplace the Deposit with an appropriate court and, after giving written notice ofsuch action to the parties, Escrow Agent shall have no further obligations withrespect to the Deposit. The parties acknowledge that Escrow Agent is acting asa stakeholder at their request and for their convenience, that Escrow Agentshall not be deemed to be the agent of either of the parties, and the EscrowAgent shall not be liable to either of the parties for any act or omission onits part unless taken or suffered in bad faith or in willful or negligentdisregard of this Agreement. Seller and Buyer shall jointly and severallyindemnify and hold Escrow Agent harmless from and against all costs, claims andexpenses, including reasonable attorney’ fees, incurred in connection with thefaithful performance of Escrow Agent’s duties hereunder. Escrow Agentacknowledges agreement to the provisions of this Agreement applicable to it bysigning on the signature page of this Agreement. Notwithstanding the foregoing,Buyer shall have the right to deliver a notice of termination of this Agreementto Escrow Agent and Seller on or prior to the expiration of the Due DiligencePeriod and Escrow Agent shall be authorized, immediately upon receipt of suchnotice and verification of Seller’s receipt of same, to return the EarnestMoney to Buyer. Buyer agrees to return all documents provided to Buyer by or onbehalf of Seller to Seller within fifteen (15) days of Tenant’s delivery of thenotice of termination to Escrow Agent and Seller.

 

B.            At Closing, and subject to the terms andprovisions of this Agreement, Buyer shall pay Seller the balance of thePurchase Price by wire transfer of immediately available federal funds into aso-called “New York Style” closing escrow to be established by the Escrow Agent.  Seller shall furnish Escrow Agent with wiretransfer instructions prior to Closing.

 

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C*.*            In connection with any Personal Propertyincluded in the sale, the parties agree that no part of the Purchase Priceshall be deemed to have been paid by Buyer on account thereof.

 

4.**            ****CONDITIONS PRIOR TO CLOSING;DUE DILIGENCE PERIOD**.

 

4.1           (A) Buyer shall at Closing accept the Property in AS IS physicalcondition as exists on the date hereof, subject to reasonable wear and tearbetween the date hereof and the Closing Date. Buyer acknowledges that Buyerwill have the Due Diligence Period to inspect the Shopping Center or cause aninspection thereof to be made on Buyer’s behalf and it is understood and agreedthat neither Seller nor any person acting or purporting to act for Seller hasmade or now makes any representation as to the physical condition (latent orpatent or otherwise), income, expense, operation, legality of current rents, orany other matter of thing affecting or relating to the Shopping Center exceptas herein specifically set forth.  Buyerhereby expressly acknowledges that except as expressly set forth herein, no suchrepresentations have been made and Buyer further agrees to take the ShoppingCenter “as is” as of the date hereof and subject to normal use, wear, tear, anddeterioration between now and Closing. Buyer agrees that Seller is not liableor bound in any manner by any financial or written statements, representations,real estate brokers’ “set-ups”, or information pertaining to the ShoppingCenter furnished by any real estate broker, agent, employee, trustee, servantor other person, unless the same are specifically set forth herein.  It is understood and agreed that allunderstandings and agreements heretofore had between the parties are herebymerged in this Agreement which alone fully and completely expresses theiragreement and that the same is entered into after full investigation, neither partyrelying upon any statement or representation made by the other not embodied inthis Agreement.

 

(B) Seller’s Required Pre-Closing Deliveries

 

Sellershall, as soon as practicable after the date of this Agreement but not laterthan five (5) business days after the date of this Agreement,, deliver to Buyerthe following (which are referred to herein as “Pre-Closing Deliveries”): (a)copy of the Space Leases affecting the Property; (b) a certification fromSeller (pursuant to the terms of the Rent Roll (Exhibit 2) setting forth thename of each tenant at the Property and the date of the Space Leases and anymodifications or amendments thereto, the amount of rent payable by each tenantthroughout the term of its respective Space Lease, any concessions granted tothe tenants, the amount of security deposits, if any, (or a certification thatSeller is not holding any security deposits), the expiration date of the SpaceLeases, and the existence of any options to renew or extend the term of theSpace Leases or to purchase all or any part of the Property and suchinformation with respect to any subtenant if Seller has knowledge thereof; (c)a certification by Seller that there are no employees at the Property; (d) acertification by Seller that, other than as disclosed to Buyer, there are noservice agreements, maintenance contracts or other similar agreements affectingthe Property; (e) copies of the most recent tax bill for the Property, togetherwith copies of any notice of assessments received by Seller, or any otherinformation relative to taxes assessed against the Property; (f) copies, ifany, of any environmental reports, architectural drawings, warranties,guarantees, plans and specs or any similar document in Seller’s possessionrelating to the Property; (g) copies of any insurance policies or certificatesinsuring the Property, whether purchased by Seller or by the tenants under theSpace Leases; (h) copies of certificates of occupancy for each tenant at theProperty and copies of any building code violations received by Seller withrespect to the Property during the last two years and evidence reasonablyacceptable to Buyer that such violations have been corrected, or acertification from Seller that it has not received any notice of building codeviolations; (i) the materials described on Buyer’s Due Diligence Checklist,attached hereto as Exhibit 12, and made a part hereof; (j) as applicable(depending upon the number of years the Property has been operating), anoperating statement for the Property for the two calendar years prior to theyear of the date hereof, and monthly operating statements for the Property foreach month of the year of the date hereof. Such statements shall includereasonable detail of all items of income and expense, other than constructioncosts as well as all items of capital expenditures made during the relevantperiods, other than capital expenditures made in connection with the initialconstruction of the Shopping Center, and (k) an engagement and representationletter signed by Seller and prepared by and for the benefit of Buyer’s auditorssubstantially in the form attached hereto as Exhibit 18, and made a parthereof.

 

4.2           On and after the date hereof, Buyer shall have access to the Propertyfor the purpose of making engineering, survey or non-intrusive inspections andindependent investigations; and Seller will on receipt of reasonable priorwritten notice, provide Buyer with access to information within its possessionor control with respect to the Property, including (without limitation) fulland accurate copies of Space Leases, Service Contracts, title information orinstruments, and books and operating records of the Shopping Center.  Buyer agrees to defend, indemnify and holdSeller harmless from any personal injury or property damage caused by Buyer indoing any testing, inspections or survey and such obligationshall survive the Closing or sooner termination of this Agreement. Buyer shallgive Seller true, accurate and complete copies of all written reports preparedby third parties resulting from Buyer’s inspections and investigations.

 

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4.3           (a)           Buyer shall have the Due Diligence Period within which to inspect and examinethe Real Estate, the Space Leases, and the Service Contracts.

 

(b)           In the event that during the Due Diligence Period, Buyer, in its solejudgment, and absolute discretion, determines that Buyer is not satisfied withthe condition of the Real Estate, the Property, the Space Leases, the GroundLeases, or the Service Contracts then, prior to the end of the Due DiligencePeriod, Buyer shall have the right by giving written notice to Seller andEscrow Agent to cancel and terminate this Agreement without liability except asset forth in Sections 4.2 and 15.8. Upon receipt of such notice prior to theend of the Due Diligence Period, Escrow Agent shall deliver the Deposit toBuyer. In the event Buyer fails to give such notice prior to the end of the DueDiligence Period, Buyer’s right to cancel this Agreement pursuant to this Section 4shall lapse.

 

4.4           Amendment to the Development Order forNorthwood Development Regional Impact (Resolution No, 86-17).  Thereis a pending amendment to the current Resolution No. 86-17, which is currentlyscheduled to be voted on August 6*,*2004(the “Amendment to DRI”).  The Amendmentto DRI would impose certain financial obligations on the Seller forconstruction of Pipeline Project A as defined therein.  The Amendment to DRI effects severalproperties including the Real Estate. The various owners of the effectedproperties (Northwood Centers LLP, MJG Ventures, Ltd. the Spano Corporation andSeller) are currently negotiating a Joint Agreement to allocate the financial obligationsimposed by the Amendment to DRI. Seller hereby agrees that it shall beresponsible for any and all costs imposed on the Real Estate by the Amendmentto DRI and the Joint Agreement.  Buyer acknowledgesand agrees that Seller shall be entitled to any and all “Reimbursements” orequivalent term or repayment that enure to the Real Estate pursuant to theJoint Agreement or Amendment to DRI, that arise inconnection therewith. In the event same are paid to Buyer as successor ininterest to owner of the Real Estate, Buyer shall promptly forwardedto Seller. Seller’s and Buyer’s obligations set forth in this Section 4.4shall survive Closing.

 

4.5           Audit. At such time as Buyer’s auditors (KPMG) complete the audit of Propertyoperations, Seller agrees to execute and deliver to KPMG the audit letterattached hereto as Exhibit 18, and made a part hereof. The provisions of this Section 4.5shall survive Closing.

 

5.             **ADJUSTMENTS AND PRORATIONS**.

 

5.1           Seller shall be entitled to all income produced from the operation ofthe Property which is allocable to the period prior to the Closing Date andshall be responsible for all expenses allocable to that period; and Buyer shallbe entitled to all income and responsible for all expenses allocable to theperiod beginning at 12:01 A.M. on the Closing Date. At Closing, all items ofincome and expense with respect to the Property shall be prorated in accordancewith the foregoing provisions and the rules for the specific items set forthhereafter:

 

5.1.1        Seller shall arrange for a billing under all those Service Contracts,for which fees are based on usage and with utility companies for a billing forutilities, to include all utilities or service used up to the Closing Date, andSeller shall pay the resultant bills.  Inthe event any of the Service Contracts set forth in Exhibit 3 cover periodsbeyond the Closing Date the same shall be prorated on a per diem basis.

 

5.1.2        Real estate taxes, general, special and/or betterment assessments and personalproperty taxes shall be prorated for those taxes which are due and payable asof the Closing Date. In the event that as of the**Closing Date the actual tax bills for the tax year or yearsin question are not available and the amount of taxes to be prorated asaforesaid cannot be ascertained, then rates, millages and assessed valuation ofthe previous year, with known changes, shall be used; and after the Closingoccurs and when the actual amount of taxes for the year or years in questionshall be determinable, such taxes will be re-prorated between the parties toreflect the actual amount of such taxes.

 

5.1.3        Rentals and other payments (other than “percentage rent” and common areamaintenance charges which are dealt with in Section 5.1.4 and Section 5.1.6)which are payable pursuant to Space Leases shall be prorated on a per diembasis as and when collected (subject to the provisions of Section 5.3).However as to the following tenants (“the Credit Tenants”) Superfresh andBlockbuster, Seller shall at closing, receive a credit in an amount equal toreal estate taxes that have accrued as of the Closing Date but are eitherunpaid or not yet due and payable from the Credit Tenants as of the ClosingDate. Except as provided in the preceding sentence in respectof the Credit Tenants. Buyer shall not be obligated to make any paymentor give any credit to Seller on account of or by reason of any rental or otherpayments which are unpaid as of the Closing Date, but shall be required to turnover Seller’s share of the same within ten (10) days if, as and when receivedby Buyer after the Closing;

 

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likewise, Seller agrees to turn over Buyer’s share ofany payments received from tenants applicable to any period from and after thedate of Closing within ten (10) days of Seller’s receipt of same; thisprovision shall survive Closing.

 

5.1.4        Percentage rent; if any, payable under each Space Lease shall be proratedwith respect to the lease year thereunder in which Closing occurs on a per diembasis as and when collected.  Anypercentage rent collected by Buyer including any percentage rent which is delinquentand pertaining to (i) an entire lease year or accounting period of a tenantunder a Space Lease which ends on a date prior to the Closing Date, or (ii)that portion of a lease year or accounting period of such tenant covering aperiod prior to the Closing Date where such lease year or accounting periodbegins prior to the Closing Date and ends thereafter shall in both cases bepaid to Seller within ten (10) days of receipt by Buyer; and if any tenant’sSpace Lease provides for offsets or deductions against percentage rent, thensuch offsets or deductions shall be prorated in the same manner as thepercentage rent itself is prorated. This provision shall survive Closing.

 

5.1.5        Gas, water, electricity, heat, fuel, sewer and other utilities chargesto which Section 5.1.1 cannot be applied, and the governmentallicenses, permits and inspection fees and operating expenses relating to theShopping Center (expressly excluding therefrom, however, such expenses relatingto the initial construction of the Shopping Center), shall be prorated on a perdiem basis.

 

5.1.6        Common area maintenance expenses and charges shall be prorated. Sellershall be**responsible for all common area expenses andcharges incurred prior to the Closing Date, and Buyer shall be responsible forthe same accruing on and subsequent to the Closing Date.  All common area expense payments made by eachtenant and such charges paid under its Space Lease for the entire lease yearduring which the Closing occurs, including end-of-year adjustments, if any,shall be prorated between Seller and Buyer in the following manner:  Not later than three (3) days prior to Closing,Seller shall deliver in Buyer, with regard to each Shopping Center tenantrequired to pay common area charges (“CAM Charges”) under its lease, a detailedcomputation showing all CAM Charge expenses incurred by Seller for the periodfrom the beginning of each such tenant’s then current billing period for CAMCharges (e.g., calendar year, lease year, etc.) through the Closing Date, anyCAM estimated payments or charges collected by Seller relating to such tenant(hereinafter “CAM Estimates”), and a bill for the tenant’s pro rata share ofCAM Charges (i.e., for CAM charges through the Closing Date net of any such CAMEstimates held by Seller), together with all invoices and other evidence documentingsuch CAM Charges in detail required by such tenant’s lease.  Buyer shall send any such bills to tenantspromptly following Closing, in which event such tenant shall pay any amountshown due directly to Seller, and except as otherwise stated in Section 5.3.3below Buyer shall have no responsibility to collect same.  However, if any tenant rightfully refuses topay such bill for CAM Charges due through the Closing Date, then Buyer shallresubmit such bill to any such tenant at the same time as Buyer next submitsBuyer’s own bill to any such tenant; and any payment thereafter made by any suchtenant on account of CAM Charges shall belong to and be forwarded within ten(10) days of its receipt to Seller until Seller’s bill is paid in full.

 

Any CAM Estimates for any tenant shall be retained by Seller up to the amountof the pre-Closing CAM Charges payable by such tenant as evidenced by suchbills and computations delivered by Seller at Closing, and Buyer shall receivea credit for any excess CAM Estimates collected by Seller.

 

5.1.7        All prepaid rentals, other prepaid payments (other than monthly real estatetax estimates or installments), security deposits paid pursuant to SpaceLeases, electric, gas, sewer and water deposits deposited with Seller bytenants, (including any accrued interest required under any Space Lease on allof the foregoing, unless Seller is entitled to retain the benefit thereof)under any Space Leases, license agreements or concession agreements relating tothe Property, shall all belong to Buyer and all shall be assigned and deliveredto Buyer at Closing, whereupon Seller shall be released from all liability withrespect thereto.  At Seller’s option,Buyer shall receive a cash credit in the amount of**all Security Deposits to be delivered to Buyer at Closing,and Seller may retain same.

 

5.1.8        Buyer shall not be responsible for any charges, salaries, vacation payor fringe benefits of employees of Seller prior to or following the Closing andnone of the foregoing shall be prorated.

 

5.2           All prorations and payments to be made under the foregoing provisionsshall be made on the basis of a written statement or statements delivered toBuyer by Seller and approved by Buyer. In the event any prorations,apportionments or computation shall prove to****beincorrect for any reason, then either party shall be entitled to an adjustmentto correct the same, provided that it makes

 

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written demand on the one from who it is entitled to such adjustment within two(2) years after the erroneous payment or computation was made; this provisionshall survive Closing.

 

5.3           All accounts receivable flowing from the Property shall be treated asfollows:

 

5.3.1        Buyer and Seller agree to treat all base or minimum rental payments receivedfrom a tenant as applicable to base or minimum rent which was owed by thattenant, if any, first for the month prior to the month in which Closing occursand next for the month in which Closing occurs until the base or minimum rentalamount due to Seller for such periods have been collected.  In the event that there remains any unpaidbase or minimum rent for a period prior to such periods, all payments of baseor minimum rent received from such tenant shall be applied to sums owed Buyerbefore any part thereof shall be treated as belonging to Seller.    In the event that there remains any**unpaid tenant receivable other than baseor minimum rent (including without limitation any tax, CAM, insurance or percentagerent payments) for any period prior to Closing, all payments received from anytenant in arrears (whether base or minimum rent or any other amount) shall beapplied first to any such sums owed Buyer from such tenant before any partthereof shall be treated as belonging to Seller.

 

5.3.2        In the event that any tenant of Seller or Buyer shall hereafter apply orshall have heretofore applied for relief under the provisions of any bankruptcyor similar laws for the protection of debtors, the provisions of Section 5.3.1shall not apply, and the parties shall have the right to seek collection oftheir respective accounts, their entitlements being determined by the Closingand the other provisions of this Agreement. Neither party shall have the rightto enter into any transactions that purport to compromise claims belonging tothe other, without the other party’s prior written consent.

 

5.3.3        “If at the Closing Date any tenants owe Seller any money (i.e. reimbursements to Seller for payment of liens orviolations on the Property that were created by tenant(s) but that Seller isrequired hereunder to satisfy in order to effectuate the sale of the Propertyor rent arrears (which shall include CAM and tax reimbursements)), Seller shallhave the right, subsequent to the Closing, to collect such sums directly fromthe tenants, including bringing lawsuits against the tenants (at Seller’s soleexpense) for such collection (except that Seller is prohibited from bringing alawsuit against any tenant(s) to collect rent in arrears for a period of thirty(30) days after such dispute or arrears has arisen (the“ Buyer CollectionPeriod”); instead Buyer agrees to use commercially reasonable efforts to collectsuch arrears on Seller’s behalf, if Buyer is unsuccessful in collecting thetenant arrears by the expiration of the Buyer Collection Period, then Sellershall have the right to collect such sums directly form the tenants includingbringing lawsuits against the tenants (at Sellers sole expense) for such collection,however, Seller agrees that any such legal action or collection shall notinclude any disturbance of the possession, use or occupancy of the tenants orany right to evict the tenants, whether pursuant to the lease provisions orotherwise, and Buyer shall at Seller’s expense join in any lawsuit and/or alsoparticipate or cooperate with Seller in its collection attempts. Buyer will (atSeller’s expense) join in such a lawsuit or action only if the same does notinclude or require disturbance of the possession of any tenants.”

 

5.3.4        In the event Seller has granted rent concessions to tenants under space lease(s)that would extend beyond the Closing Date, Buyer shall receive credit for same.

 

5.4           Intentionally Deleted.

 

5.5           The provisions of this Article 5 will survive Closing.

 

6.             **TITLE AND SURVEY**.

 

6.1           Seller shall convey and Buyer shall accept, subject to the right ofBuyer to review and approve all title matters, documents and plats of record inregard to the condition of title to the Property, title such as the TitleCompany will be willing to approve and insure subject only to**Permitted Exceptions as provided for in thisAgreement.  Buyer acknowledges that ithas heretofore received copies of Seller’s existing title insurance policy forthe Real Estate (the “Existing Title Policy”) and of Seller’s existing surveyof the Real Estate (the “Existing Survey”).  Promptly following the execution of thisAgreement, Buyer may (if it so elects) obtain (the costs of which shall beborne solely by Buyer) updates of the Existing Survey to the certificationstandards described upon the Surveyor’s certification attached hereto Exhibit13 and made a part hereof (such updated survey hereinafter referred to as the “UpdatedSurvey”); if Buyer does obtain such an Updated Survey, Buyer shall cause it tobe certified to Seller and Buyer shall promptly furnish Buyer, Seller and theTitle Company with a copy thereof.  Promptly following the execution of thisAgreement, Buyer shall also (the costs of which shall be borne by Buyer) obtaina commitment for ALTA Form B Leasehold Title Insurance (the “Title Commitment”);and Buyer shall promptly cause the Title Company to furnish Seller and Buyerwith true accurate and complete copies thereof (including true, accurate andcomplete copies of all underlying title

 

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exception documents referenced therein). Not later than the expiration of the DueDiligence Period, Buyer shall give Seller written notice (“Buyer’s Title/SurveyNotice”) of any title exceptions which are contained in the Title Commitmentand/or the Survey which are not Permitted Exceptions. Failure by Buyer to giveBuyer’s Title/Survey Notice (or to object to any matter referenced in the TitleCommitment) to Seller on or before said date shall constitute Buyer’s final andirrevocable approval of the condition of title (and to any such unobjected tomatter) in and to the Real Estate. If Buyer’s Title/Survey Notice shall betimely given Seller shall have a period of fifteen (15) days following Seller’sreceipt of Buyer’s Title/Survey Notice, to commence to remove, correct, cure orsatisfy (provided Seller does in fact elect to so remove, correct, cure orsatisfy) any title exceptions that were identified in Buyer’s Title/SurveyNotice as not being Permitted Exceptions, it being nevertheless agreed thatSeller shall have no obligation to undertake any action or to incur any expensein order to effectuate any such removal, correction, cure or satisfaction(except that notwithstanding the foregoing Seller shall be required to removeor discharge any fee mortgages or deeds of trust, as well as any other liens inan ascertainable dollar amount ). In the event that Seller elects not to attemptto remove, correct, cure or satisfy the matters raised in Buyer’s Title/SurveyNotice, or if having elected to do so*,*doesnot within thirty (30) days thereafter, (or such additional time as isreasonably necessary (not to exceed an additional fifteen (15) days withoutBuyer’s written consent) to remove, correct, cure or satisfy the matter(s) soraised using commercially reasonable good faith efforts) effectuate any suchremoval, correction, cure or satisfaction as aforesaid (hereinafter called “titlecorrection”), Buyer shall have the right at its sole option either (a) toterminate this Agreement, in which event the Deposit shall be returned to Buyerand neither party shall thereafter have any further liability hereunder, or (b)to accept such title as is disclosed by the Title Commitment and/or Surveywithout title correction and without Survey correction and without anyreduction to the Purchase Price, thereby waiving any lights against Seller withrespect thereto. Said election shall be made by Buyer within three (3) daysfollowing Buyer’s receipt of written notification by Seller that Seller has noteffectuated (or has elected not to effectuate) title correction. In the eventthat Seller (even though under no duty to do so) shall undertake title correctionand/or Survey correction as aforesaid, and shall be successful, this Agreementshall continue in full force and effect and Buyer shall close the transactioncontemplated hereby in accordance with the terms hereof. In the event thatSeller shall only be partially successful in obtaining title and/or Surveycorrection, Buyer shall have the same alternative rights as Buyer would have inthe event Seller had declined to seek title and/or Survey correction (as setforth above). Buyer shall make its election within three (3) days after Buyer’sreceipt of written notice from Seller to Buyer of the extent to which titleand/or the Survey has been corrected.

 

6.2           If at the Closing Date there may be any liens or encumbrance whichrender title unmarketable or otherwise are not permitted title exceptionshereunder, and which Seller is obligated or desires to pay and discharge,Seller may use any portion of the balance of the Purchase Price to satisfy thesame, provided Seller shall simultaneously either deliver to Buyer at theClosing instruments in recordable form and sufficient to satisfy such liens andencumbrances of record together with the cost of recording or filing saidinstruments; or provided that Seller has made arrangements with the title companyin advance of Closing, Seller will deposit with said company sufficient monies,acceptable to and required by it to insure obtaining and the recording of suchsatisfactions and the issuance of title insurance to Buyer either  free of any such liens and encumbrances, orwith insurance against enforcement of same out of the insured premises.  The existence of any such liens andencumbrances shall not be deemed objections to title, if Seller shall complywith the foregoing requirements. Unpaid liens for taxes, water charges, sewerrents and assessments which are the obligation of Seller to satisfy anddischarge shall be objections to title, and thus the amount thereof, plusinterest and penalties thereon, shall be deducted from the Purchase Price to bepaid hereunder and allowed to Buyer, subject to the provisions forapportionment of taxes, water charges and sewer rents contained herein. Unpaidfranchise tax**of any  entity in the chain of title to which suchtax is applicable, or estate, income or other taxes which may be liens againstthe Property as of the Closing Date shall not be an objection to title,provided the title company agrees to insure against the collection of saidtaxes from the Property and in such event if required by the title company,Seller agrees to deposit at Closing with the title company an amount deemedreasonable by it to secure the payment of such unpaid franchise tax, or othertax.

 

6.3           In the event that Seller is unable to convey title in accordance withthe terms of this Agreement, or if any representation of Seller herein isuntrue in a material respect on the Closing Date and Seller does not correctsame (it being understood Seller will be entitled to a reasonable adjournmentof Closing for such purpose, not to exceed Fifteen (15) days), the soleresponsibility of Seller will be to refund, (or cause to be refunded by theEscrow Agent) to Buyer any amount paid on account of the Purchase Price; uponthe making of such refund, this Agreement shall be deemed canceled, neitherparty shall have any further claim against the other by reason of thisAgreement, except that Buyer shall remain liable on its obligations underSections 4.2 and 15.8.

 

6.4           The costs of obtaining the Title Commitment, the policy of titleinsurance to issue at Closing (in form subject to Buyer’s sole discretion, andagreed to prior to the expiration of the

 

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Due Diligence Period) including the costs of any excess coverage orendorsements Zoning 3.1; Survey; Access, Usury, Location, Tax ID, Contiguity,EPA, Comprehensive and Doing Business, to the extent available or applicable,shall be borne solely by Buyer (the “Title Policy”) and costs of updated Surveyshall be borne solely by Buyer, however expressly excluding therefrom, however,the costs to release any monetary encumbrance affecting the Property and anytitle curative endorsements which shall be borne by Seller.

 

**7.****            ****DAMAGE, DESTRUCTION ORREQUIRED ALTERATION**.

 

7.1 Prior to Closing, in the event of any damage to or destruction ofall or part of the Real Estate (notice of which shall be given to Buyer bySeller as soon as  practicable followingits occurrence), then Seller shall have the right (but not the obligation) toadjourn the Closing Date for up to sixty (60) days in order to repair orreplace such damage or destruction, except that if the cost of such repair orreplacement exceeds ten percent of the Purchase Price, then in any such case(i) Buyer shall have the right to terminate this Agreement by giving Sellerwritten notice of its intention to do so, such notice by Buyer to Seller to begiven not later than three (3) days after Buyer shall have received the noticefrom Seller of such aforesaid occurrence, (in which event the Deposit shallforthwith be returned to Buyer, whereupon this Agreement shall be null and voidand of no further force or effect whatsoever, except that Buyer shall remainliable on its obligations under Sections 4.2 and 15.8); or (ii) if Buyer electsnot to (or does not have the right to) terminate this Agreement, this Agreementshall continue in full force and effect except that at Closing Buyer shallreceive an abatement of the Purchase Price in an amount equal to Seller’sreasonable good faith estimate of the amount required to repair and restore allunrepaired damage (and Seller shall retain all rights to collect insuranceproceeds for such loss). Buyer may elect to have its architect provide a goodfaith estimate of the amount required to repair and restore all unrepaireddamage. If Seller’s estimate disagrees with Buyer’s architect’s estimate, theparties shall select another architect to make a final determination of theamount required to repair and restore all unrepaired damage and both partiesshall be bound by the third architect’s determination. The party whosearchitect differs most from the third architect’s determination shall pay thethird architect’s fee.

 

7.2(a)  In the event that anygovernmental authority having jurisdiction of all or part of the Real Estatehas notified Seller before the Closing that some alteration of or addition tothe Real Estate is required to be made by law, rule or regulation (notice ofwhich shall be given to Buyer by Seller as soon as practicable after itsreceipt) or otherwise requires a cure of a violation, then (subject to the provisionsof Section 7.2(b)) Seller shall have the right (but not the obligation) toundertake such alteration or addition or cure; provided, however, that if thecost of such alteration or addition or cure shall exceed the sum of one (1%)percent of the Purchase Price, then in such event Seller may either elect topay the entire cost and cure the same before the Closing or may decline toundertake the same, in which event Buyer shall have the option, exercisablewithin three (3) days following notice from Seller of the requirement andSeller’s refusal to comply therewith, (i) to terminate this Agreement by givingSeller notice thereof (in which event the Deposit shall forthwith he returnedto Buyer, whereupon the Agreement shall be null and void and of no furtherforce or effect whatsoever, except that Buyer shall remain liable on itsobligations under Sections 4.2 and 15.8); or (ii) if such notice of terminationis not timely given, to proceed with the Closing, in which event the PurchasePrice shall be reduced by Seller’s reasonable good faith estimate of the costto cure, up to the maximum sum of one percent of the Purchase Price. Buyer mayelect to have its engineer provide a good faith estimate of the cost to cure.If Seller’s estimate disagrees with Buyer’s architect’s estimate, the partiesshall select a another engineer to make a finaldetermination of the cost to cure and both parties shall be bound by the thirdengineer’s determination. The party whose engineer differs most from the thirdengineer’s determination shall pay the third engineer’s fee.

 

(b)      Notwithstanding the foregoing provisions of Section 7.2(a),Seller may elect but shall have no obligation to cure or pay for, , any violation which either (i) is first placed (i.e.,notice first given to Seller or first placed of record) after the date of thisAgreement, or (ii) is the responsibility of a Shopping Center tenant to cure ordischarge pursuant to its Space Lease. In the event Seller elects to cure orpay for such violation(s), Seller shall have a period of fifteen (15) daysafter receipt of notice of the violation to commence to cure or pay for same,and shall proceed with diligence to cure same, however, if Seller elects tocure a violation, and Seller reasonably believe that the Closing Date (ashereinafter defined) will need to be extended more than thirty (30) days toeffectuate the cure, then Seller shall not commence to cure the violation thenBuyer may elect to (i) complete the purchase without any adjustment in thePurchase Price or (ii) terminate the Agreement in such event, unless Buyeragrees to the required extension. In the event Seller elects not to cure or payfor such violation, the sole responsibility of Seller will be to refund (orcause to be refunded by the Escrow Agent) to Buyer any amount paid on accountof the Purchase Price; upon the making of such refund, this Agreement shall be

 

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deemed cancelled, neither party shall have anyfurther claim against the other by reason of this Agreement, except that Buyershall remain liable on its obligations under Sections 4.2 and 15.8.

 

8.             **EMINENT D****OMAlN**.  In the event that any eminent domainproceedings shall be commenced prior to the Closing affecting (i)  any of the parking area(s) within the RealEstate or any access roadway serving the Real Estate that is not replaced by anaccess roadway in a comparable location with respect to the Real Estate; or(ii) which is of such a nature as would permit any tenant occupying leasedpremises to cancel its Space Lease, Buyer shall have the right to terminatethis Agreement, by written notice given to Seller within three (3) days afterthe event, (in which case the Deposit shall forthwith be returned to Buyer,whereupon the Agreement shall be null and void and of no further force oreffect whatsoever). In any case wherein Buyer has the right to terminate thisAgreement pursuant to this Section 8 and Buyer elects not to terminate, orin any case wherein Buyer does not have the right to terminate, Buyer andSeller shall consummate Closing on the Closing Date, without any reduction toor abatement of the Purchase Price, and all theretofore unpaid condemnationawards shall belong to Buyer.

 

9.             **NO ASSIGNMENT**.  Buyer shall not have the right to assign thisAgreement or its rights under this Agreement without obtaining in each instanceSeller’s prior written consent. Notwithstanding the foregoing, Buyer shall havethe right, without Seller’s consent, to assign its entire right, title and interestin and to this Agreement, expressly including the Deposit, to any entity controlling,controlled by, or under common control with Buyer or Inland Real Estate Trust,Int., a Maryland corporation, (an “Affiliate”); provided that, not less thanthree (3) business days prior to Closing, Seller receives an executedassignment and assumption agreement, in a commercially reasonable form , whichexpressly assigns the Deposit and in which such assignee expressly assumesperformance of this Agreement for the benefit of Seller.  No such assignment or designation shallrelieve or release Buyer from any obligations under this Agreement (whetherarising pre- or post-closing), and Buyer shall remain jointly and severallyliable for all of same together with such assignee.

 

10.           **COVENANTS AND REPRESENTATIONS**. As of the date hereof, and to the best of Seller’s knowledge, Sellercovenants, warrants and represents to Buyer the following:

 

10.1         Seller has obtained any consents from partnersand/or shareholders required to permit the transactions contemplated by thisAgreement including the sale of the Property to Buyer.

 

10.2         There is no pending or threatened litigation affecting the Propertybrought by or against Seller that would materially adversely affect Buyer exceptas set forth in Exhibit 7 attached hereto and made a part hereof. IfSeller is served with process or receives notice that litigation relating to theProperty has been commenced against it, Seller shall promptly notify Buyer. Theprovisions of this Section shall not apply to any litigation relating tothe property involving personal injury or property damage(s) covered byinsurance.

 

10.3         The Space Leases described in Exhibit 2**comprise all the Space Leases presently existing, and samehave not been materially amended or modified except (if at all) as may be setforth in Exhibit 2. Seller has neither given nor received any outstanding,uncured notice of default to or**fromany Space Lease tenant. Following a date which is five (5) business days priorto the expiration of the Due Diligence Period (the “Cut Off Date”), and priorto Closing, Seller will not, without the prior written consent of Buyer(which Buyer agrees not to reasonably withhold ordelay), cancel (except for default by a tenant) or materially amend any SpaceLease, or enter into any new Space Lease or any Service Contract affecting theProperty not cancelable on 30 days notice. On or prior to the Cut Off Date, Seller may take any of the foregoing actionswithout Buyer’s consent, provided it delivers a copy of any new documentationevidencing same to Buyer not later than three (3) business days prior to theexpiration of the Due Diligence Period.

 

10.4         Except as otherwise expressly provided herein, there are no contracts oragreements affecting the Property other than the Service Contracts, SpaceLeases, and Permitted Exceptions; and there are no on-site employees or hiredpersons in connection with the management, operation or maintenance of theProperty; and Buyer shall have no obligation, liability or responsibility withrespect to charges, salaries, vacation pay, fringe benefits or like itemssubsequent to Closing, nor with any management or employment agreements withrespect to the Property.

 

10.5         Ownership of Transferred Interest. The Seller is the sole member of the Owner asof the date hereof, and holds one hundred (100%) percent of the membershipinterests in the Owner. The Interests were issued to the Seller withoutviolating any state or federal laws applicable to the issuance of securities orotherwise. The Seller is the legal and beneficial owner of the Interests andwill be the legal and beneficial owner of the Interests immediately prior toClosing; such ownership consists of and will consist of good, valid andindefeasible title thereto, free of all liens and encumbrances of any

 

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kind or nature whatsoever; and upon consummation of the transfer of theInterests to Buyer pursuant to the terms hereof, Buyer will acquire title tothe Interests, free and clear of all liens and encumbrances whatsoever and willown, in the aggregate, one hundred (100%) percent of the membership interestsin the Owner.

 

10.6         Organization. The Owner or if entity not formed will be at the time of closing a is duly organized and validly existing as a limitedliability company under the laws of the State of Delaware.

 

10.7         Other Agreements.  Exceptfor this Agreement, there are no agreements or arrangements to which Owner orSeller is a party, or by which Owner or Seller is bound, relating to the issuance,acquisition or disposition of any interest in Owner, and there are noagreements or arrangements to which Owner or Seller is a party or by which theyarc bound relating to the repurchase or redemption of any interest inOwner.  Except for this Agreement, thereare no outstanding options, warrants or other rights to subscribe for orpurchase or acquire any interest in Owner or any agreements or arrangements towhich Owner or Seller is a party or by which they are bound pursuant to whichany Owner or Seller is or may be required to issue or sell any additionalinterest in Owner.  Owner does not own,directly or indirectly, any capital stock or other equity securities of anycorporation or have any direct or indirect equity or other ownership interestin any entity or business.

 

10.8         Organizational Liabilities.   Allfederal, state and local income, excise, sales, property and other tax returnsrequired to be filed by the Owner, if any, have been timely filed and are correctand complete in all material respects. All taxes, assessments, penalties and interest due in respective of anysuch tax returns have been paid in full, and there are no pending or threatenedclaims, assessments, deficiencies, audits or notices with respect to any suchtaxes. The Owner is not a party or otherwise subject to any judgment, order,writ, injunction or decree of any court, governmental or any administrativeagency or a tribunal having jurisdiction over the Interests. There are no andhave never been any employees of the Owner and the Owner shall not have anyemployees through the date of Closing. The Owner does not maintain, sponsor, participate in or contribute to,and in the past, the Owner has not maintained, sponsored, participated in orcontributed to, any employee health or benefit plan (as defined in Section 3(1)of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),any employee pension benefit plan (as defined in Section 3(2)(A) of ERISA),or any bonus, severance, deferred compensation, retirement option or any otherplans or amendments providing for any benefits to employees of the Owner, andthe Owner is not, and has not been, a member of any controlled group ofentities, a**group of trades orbusinesses under common control, or an affiliated service group, as defined inERISA and the Internal Revenue Code of 1986, as amended.

 

10.9         The signatories to this Agreement on behalf of Seller have the power andauthority to enter**into thisAgreement and to bind Seller to the provisions hereof.

 

10.10       As of the date hereof: (i) to Norm Brody and Todd Zinmaster’s knowledgeSeller is not aware of and has receive no building code violation notices withrespect to the Property (other than notices of violations which have beenremoved or corrected); and (ii) to Norm Brody and Todd Zinmaster’s knowledgeSeller is not aware of and has received no notices of any action orgovernmental proceeding in connection with eminent domain, or for a zoningchange, which would affect the Property; and (iii) to Norm Brody and ToddZinmaster’s knowledge Seller is not aware of any structural problems in theimprovements constructed upon the Property and the exterior structures are ingood condition and repair.

 

11.           **THE CLOSING**.

 

11.1         The Closing shall be**heldat the Title Company’s offices (at the address set forth above) at 9:00 A.M. onthe Closing Date. The Closing Date shall be the first business day after theexpiration of the Due Diligence Period, but in no event earlier than October 1,2004  not laterthan November 17, 2004. In the event the condition precedent to Closingdescribed at Section 16(c)(ii) (the “Lease-up Requirement”) is notsatisfied as of November 17, 2004, the following shall apply so long asSeller is not then in default of its obligations hereunder: (A)(i) Closingshall be delayed until such time as the Lease-up Requirement is achieved (in noevent later than April. 1 2005), and (ii) at Closing, Seller shall credit Buyeran amount equal to Twenty-eight Thousand and no/100 Dollars ($28,000.00) permonth for**each 30-day period thatClosing does not occur from and including November 18, 2004 (prorated forany partial month) through the Closing Date, or at Seller’s option (B) if theProperty is no less than seventy-five percent (75%) leased (within the contextof Section 16(c)(ii), Buyer and Seller shall close on November 17,2004 and Seller shall deposit into the Cash Flow Holdback escrow (described in Section 11.3(d),hereof), a sum equal to six (6) months of rent and reimbursements for suchtenant spaces leased but with the Tenant Conditions (as hereinafter defined)not satisfied (the “Lease-up Requirement Shortfall Escrow”). For the purposeshereof, the Tenant Conditions are hereby defined as (i)

 

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a signed lease, and (ii) with Tenant either paying full rent andreimbursements and all conditions precedent to Rent Commencement Date (asdefined in such tenant lease) shall have occurred or been satisfied, and (iii)with all the leasing commissions and tenant improvement allowances either paidfor by Seller or credited to Buyer, and (iv) with a certificate of occupancy orits equivalent occupancy permit issued by the local governmental authorities,for such tenant’s respective demised premises, (v) Tenant shall have open andoperated for its permitted use for at lease one day, and (vi) Seller obtains anestoppel from the Tenant stating that the delivery conditions (i.e. landlordwork) has been completed or Seller shall give a Seller estoppel to that effect.

 

11.2         At Closing, Buyer shall pay the Purchase Price as adjusted in accordancewith the provisions of this Agreement; and Buyer shall execute and deliver suchother instruments as Seller may reasonably request in connection with or toconsummate the transactions contemplated by this Agreement.

 

11.3         (A)          At Closing, Seller shall deliver to Buyer the following:

 

(a)           Intentionally Deleted.

 

(b)           A F.I.R.P.T.A. affidavit.

 

(c)           It shall be a condition precedent to Buyer’s obligation to remit theremainder of the Purchase Price to the Title Company on the Closing Date andeffectuate the transaction contemplated herein that on or before the third(3rd) business day prior to the Closing Date, Buyer shall have received anestoppel certificate from the Space Lease Tenants operating under the tradenames Marshall’s and Petco (hereinafter “Anchor Tenant”), as well as from sixty(60%) percent of the remaining tenants (each such tenant hereinafter referredto as a “Non-Anchor Tenant”) (collectively such Non-Anchor Tenants hereinafterreferred to as the “Minimum Threshold”), each such estoppel to be dated notmore than 30 days prior to the Closing Date, in either the form required by itsSpace Lease, or otherwise in the form attached hereto as Exhibit 10, and made apart hereof, as well as Seller’s estoppel in the form of Exhibit 10 for anytenant (other than an Anchor Tenant and so long as the Minimum Threshold ismet) not delivering an estoppel as required to achieve one hundred percent(100%) estoppel delivery for the Property. If Seller is unable to obtain any such required estoppel from a tenantprior to Closing, Seller shall deliver its own estoppel in the form attached asExhibit 10 (provided, however, Buyer shall not be obligated to accept Seller’sestoppel for any Anchor Tenant nor for more than thirty (30%) percent of the Non-AnchorTenants at the Property) , which shall survive Closing (but if post-ClosingSeller delivers any such tenant estoppel, Seller shall be relieved fromresponsibility under any Seller estoppel it delivered regarding all matters confirmedby such tenant estoppel).  If Sellerfails to deliver any such required estoppel, Seller shall have no liability byreason thereof provided, however that Seller shall not be required to deliverits own estoppel containing an assertion that Seller in good faith believes tobe untrue, and Buyer’s sole right shall be to terminate this Agreement and toobtain a refund of the Deposit as set forth in Section 14.3. If anyestoppel certificate is dated earlier than forty (40) days prior to the ClosingDate, in lieu of requiring Seller to obtain a new estoppel from the subjecttenant(s), which shall be required of Seller if any estoppel certificate isdated earlier than sixty (60) days prior to the Closing Date, Buyer agrees thatSeller may deliver, at Closing, its representation that to the best of Seller’sknowledge, the facts in said estoppel remain true in all material respects asof  the Closing Date.

 

(d)           (d) Seller shall use its commercially reasonable good faith efforts toobtain, prior to the expiration of the Due Diligence Period, an estoppelcertificate from each party to, or affected by any declaration, association,reciprocal easement, or like agreement affecting the Property (hereinafter “REAestoppel”).  Seller will request that theestoppel be in a form substantially similar to the form attached hereto asExhibit 11 and made a part hereof. In the alternative, within five (5) days ofthe date this Agreement is fully executed by Seller and Buyer. Seller shallprovide Buyer with the necessary information for each REA party such that duringthe Due Diligence Period.  Buyer mayrequest the REA estoppel from the REA parties directly.  In the event Seller and Buyer are unable toobtain these estoppels despite Seller’s commercially reasonable good faithefforts prior to the expiration of the Due Diligence Period, Seller may deliverand Buyer may accept (although nothing contained herein shall require Buyer toaccept), its own estoppel in the form attached as Exhibit 11, which shallsurvive Closing (but if post-Closing Seller delivers any such REA estoppel,Seller shall be relieved from responsibility under any Seller estoppel itdelivered regarding all matters confirmed by such “REA” estoppel).

 

(e)           It shall be a condition precedent to Buyer’s obligation to remit theremainder of the Purchase Price to the Title Company on the Closing Date andeffectuate the transaction contemplated herein that on or before the third (3rd)**businessday prior to the Closing Date, Buyer shall have received an assignment of allwarranties and guaranties, if available, for materials and workmanshipbenefiting the Property, including an acknowledgment by the material and/orservice provider of the acceptance of the assignment where required by theterms of the warranty and/or guaranty, with all fees and costs of such

 

11

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assignment (and inspection, if required) (not to**exceed One Thousand Dollars (S1,000.00))being paid at the sole cost and expense of Seller; any such costs or fees inexcess of One Thousand Dollars ($1,000.00) being shared equally between theparties hereto.

 

(B)           At Closing, Seller and Buyer shall each execute anddeliver to**the other thefollowing:

 

(a)           An Assignment and Assumption of membership Interests in Inland Western NorthwoodsLLC in form set forth as Exhibit 8.

 

(b)           Intentionally Deleted.

 

(c)           Notices to tenants, in the form attached hereto as Exhibit 14, and madea part hereof, notifying them of the sale and (if applicable) the transfer oftheir security deposit to Buyer.

 

(d)           Cash Flow Holdback.  Tothe extent at Closing the Rent Commencement Date (“RCD”) of a Space Lease, asthe RCD is defined in the respective Space Lease, has not occurred, (such aSpace Lease being hereinafter referred to as a**“Pending Lease”) then Seller shall put in escrow account to be heldby the title company the “Cash Flow Deficiency” as hereinafter defined for anysuch Pending Leases.  The Cash Flow Deficiencyshall mean the Fixed Rent, CAM, taxes and insurances payable under the PendingLease calculated from the day of the Closing to the RCD under such Pending Lease.  At Closing the parties shall enter intoformal Escrow Agreement outlining the terms of the Cash Flow Holdback.

 

11.4         Each party shall pay its own legal fees and travel and lodging expensesin connection with this transaction.  Sellerand Buyer shall split the payment in accordance with local custom for alltransfer taxes and the parties shall each pay 1/2 of the documentary stamps or recording chargesfor transfer of title to the Real Estate and the “New York Style” closingescrow fees charged by the Title Company.

 

11.5         Buyer also agrees to cooperate with Seller to permit the conveyance ofthe Property to be consummated as a part of a transaction intended by Seller toqualify as a tax-free exchange under Section 1031 of the Internal RevenueCode and in conjunction therewith to execute such documents as Seller mayreasonably request (such cooperation may include, without limitation, acceptinga conveyance from a party other than Seller and paying the Purchase Price to aparty other than Seller). In no event, however, shall (a) Buyer bear anyexpense associated with the exchange transaction, (b) Buyer be obligated totake title to Seller’s exchange property, (c) the consummation of such tax-freeexchange materially delay the conveyance to Buyer of the Property, (d) Buyerhave any liability to Seller or any other party for the qualification of theexchange transaction for tax-free exchange treatment under Section 1031 ofthe Internal Revenue Code or under any other provision and (e) the consummationof such tax free exchange relieve Seller of any of its obligations hereunder.

 

12.           **BROKERS.**

 

Each party represents and warrants to the other that it dealt with nobroker other than Cushman *&*Wakefield(the “Broker”) in connection with this transaction. Seller shall pay Brokerpursuant to a separate agreement and Buyer shall pay Broker one hundred fiftythousand dollars ($150,000.00). Each party agrees to defend, indemnify and holdthe other harmless from and against any and all loss, liability and expense,including reasonable attorney’s fees, that the indemnitee may incur arising byreason of the above representation by the indemnitor being false. Theprovisions of this Section 12 shall survive Closing.

 

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13.           **NOTICES**.  All notices, demands, requests, consents,approvals or other communications (for the purpose of this Section collectivelycalled “Notices”) required or permitted to be**given hereunder or which are given with respect to this Agreementshall be valid only if in writing and sent by registered or certified UnitedStates mail, return receipt requested, postage prepaid, or delivered by FederalExpress or UPS courier service, addressed as follows:

 
| To  Seller:       |                                                                                                                                                                                           |
|-------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|              |                                                                                                                                                                                           |
|              | 3333  New Hyde Park Road                                                                                                                                                                       |
|              | Suite  100                                                                                                                                                                                     |
|              | New  Hyde Park, New York 11042                                                                                                                                                                 |
|              | Attn:  Barbara E.* *Briamonte, Esq.                                                                                                                                                       |
|              | Phone:  (516) 869-7157                                                                                                                                                                         |
|              | Fax:  (516) 869-7201                                                                                                                                                                           |
|              |                                                                                                                                                                                           |
|              |                                                                                                                                                                                           |
|              | with  a copy to:                                                                                                                                                                               |
|              |                                                                                                                                                                                           |
|              | 1111  Burlington Avenue  Suite 113  Lisle, IL 60532  Attn: Daniel Slattery  Phone: (630) 322-9206  Fax: (630) 322-9204                                                                         |
|              |                                                                                                                                                                                           |
| To Buyer:         | Inland  Real Estate Acquisitions, Inc.  2901 Butterfield Road Oakbrook, IL 60523  Phone: (630) 218-4948  Fax: (630) 218-4935  Attention: G. Joseph Cosenza                                     |
|              |                                                                                                                                                                                           |
| and  a copy to:   | Steven  D. Sanders  Fax: (914) 779-2000                                                                                                                                                        |
|              |                                                                                                                                                                                           |
|              | with  a copy to:                                                                                                                                                                               |
|              |                                                                                                                                                                                           |
|              | The  Inland Group, Inc.2901 Butterfield Road  Oak Brook, IL 60523  Attn: Robert Baum, General Counsel  Facsimile Nos: (630) 218-4900  Copy via facsimile:  Charles R. Benvenuto (630) 571-2360 |
|              |                                                                                                                                                                                           |
| To  Escrow Agent: | CHICAGO  TITLE & TRUST COMPANY  171 North Clark Street  Chicago, Illinois 60601  Attn: Nancy Castro, Escrow Agent  Phone: (312) 223-2709  Fax: (312) 223-2108                              |

 

or**suchother address as such party shall hereafter have specified by Notice given bythe same means.  Any Notice shall bedeemed given when delivered to the carrier delivering same, delivery chargesprepaid, and properly scaled and addressed. Any Notice may also be given bytelecopier to the following numbers: Seller (516) 869-7201, Buyer (843)852-3675, (630) 218-4935, (678) 996-2140 and (630) 218-4900;, and Escrow Agent(312) 223-2108, Attn: Nancy Castro, provided that a “hard copy” of such noticeis sent within one (1) business day after such telecopier transmission in themanner above set forth; and in the case of notice by telecopier (withconfirmation sent as aforesaid), notice shall be deemed given upon electronicconfirmation of receipt.

 

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14.           **DEFAULTS.**

 

14.1         If Closing does not take place because of Buyer’s default the Depositshall be retained by Seller asagreed upon liquidated damages as Seller’s sole remedy for such default, and thereuponthis Agreement shall be null and void and of no further force or effectwhatsoever (except that Buyer shall remain liable on its obligations underSections 4.2 and 15.8). The parties hereto expressly agree that Seller’s actualdamages in the event of a default by Buyer would be extremely difficult or impracticalto ascertain, and that the amount of the Deposit represents the parties’reasonable estimate of such damages.

 

14.2         If Closing does not occur due to Seller’s willful default and refusal toclose despite Buyer’s willingness to do so (such willingness includes waiver byBuyer of any uncured title objection properly made by Buyer under Section 6.1or material breach of representation or warranty by Seller) (such willfuldefault and refusal being hereinafter referred to as a “Seller Default”), thenBuyer, as its sole and exclusive right and remedy as a result of such SellerDefault, may elect to either (i) cancel this Agreement, in which event theDeposit shall be returned to Buyer, Seller shall be liable for any title andsurvey costs, as well as environmental site assessment, appraisal and legalfees theretofore incurred by Buyer (however Seller shall not be obligated toreimburse Buyer more than Twenty-Five Thousand Dollars *(*$25,000.00) in the aggregate for such environmental site assessment,appraisal and legal fees), and thereupon no party shall have any further rightor obligation hereunder (except that Buyer shall remain liable on itsobligations under Sections 4.2  and15.8),  or (ii) Buyer may enforcespecific performance of this Agreement without any reduction or abatement ofthe Purchase Price, together with the right of Buyer to collect its reasonableattorney’s fees and costs of suit, subject to the limitation on Landlord’sreimbursement of same described above.

 

14.3         Subject to the provisions of Article 14.1 and 14.2 above, ifClosing should not occur for any reason whatsoever other than a default byBuyer or a Seller Default (including without limitation by reason of a materialbreach of representation or warranty of Seller or an uncured title objectionproperly made by Buyer under Section 6.1, or a failure to deliver anytenant estoppel required hereunder) which Buyer is not willing to waive, thenin such event this Agreement shall be and be deemed cancelled, the Depositshall be**returned to Buyer, and thereupon Buyer shallhave no other right, by way of damages or otherwise, against Sellernotwithstanding the existence of any failure or breach of representation,warranty, covenant, title, provision of estoppel or other Closing condition(provided that Buyer will remain liable on its obligations under Sections 4.2and 15.8).

 

15.           **MISCELLANEOUS.**

 

15.1         The representations, warranties and covenants contained in Article 10of this Agreement shall survive delivery of the deed for a period of twelve(12) months. Other than the survival of such representations, warranties andcovenants, the acceptance of the deed by Buyer shall be conclusive evidence ofthe performance by Seller of all of the provisions of this Agreement to be performedby Seller.

 

15.2         This Agreement (including the Exhibits attached hereto) contains theentire agreement between the parties with respect to the subject matter hereofand supersedes all prior or contemporaneous understandings, if any, withrespect thereto.

 

15.3         This Agreement may not be canceled, modified, changed or supplemented,nor may any obligation hereunder be waived, except by written instrument signedby the party to be charged or by its agent duly authorized in writing.

 

15.4         The parties do not intend to confer any benefit hereunder on any person,firm or corporation other than the parties hereto and their respectivesuccessors or assigns.

 

15.5         **“TIME IS OF THE ESSENCE”** with respect to all provisions of this Agreement,with the sole exception that each of Buyer and Seller shall be entitled to asingle adjournment (not to exceed two (2) business days in any event) of theClosing Date.

 

15.6         This Agreement shall extend to**andbe binding upon the legal representatives, heirs, executors, administratorsand, subject to the provisions of this Agreement, the permitted assigns of theparties hereto.

 

15.7         IntentionallyDeleted.

 

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15.8         Buyer represents and warrants that it will keep all information and/orreports and/or documents obtained from Seller or its agents (including withoutlimitation the rent and other terms of the Space Leases), or related to orconnected with the Property (including without limitation the existence of thisAgreement and the Purchase Price) strictly confidential and will not discloseany such information to any person or entity (except for Buyer’s attorneys,consultants and advisors and except as required by law; provided that any suchparties similarly agree to treat such material confidentially), without theprior written consent of Seller. In amplification and not in limitation of theforegoing, Buyer may not make any public disclosure of the existence or termsof this Agreement prior to Closing.

 

15.9         This Agreement shall be governed by, interpreted under, and construedand enforced in accordance with, the laws of the State wherein the Property is located.This Agreement shall be construed in accordance with its plain meaning andwithout reference to any maxim or rule of interpretation providing that awriting should be construed against the party responsible for the drafting thereof.

 

15.10       This Agreement shall not be recorded or filed in the public records ofany jurisdiction by either party and any attempt to do so may be treated by theother party as a breach of this Agreement.

 

15.11       This Agreement may be executed in one or morecounterparts, each of which when so executed and delivered shall be deemed anoriginal.

 

**16.****  ****CONDITIONS PRECEDENT TO BUYER’SOBLIGATION.**

 

In addition to the conditions precedent described in Article 11.3(A)(c), (d) &*.*(e), Buyer’sobligation to remit the remainder of the Purchase Price to the Title Company onthe Closing Date and effectuate the transaction contemplated hereunder issubject to and contingent upon the following:

 

(a)   The Title Company’s issuing or committing toissue the Title Policy insuring that fee simple title to the Property is vestedin Buyer as required in Article 6**hereof;

 

(b)   The completeness, truth and accuracy in allmaterial respects and to the best, of *Ruth Mitteldorfor Norm Brody’s*knowledge of the Rent Roll, and any certifications, schedules,covenants and statements prepared and executed by Seller as part of the Pre-ClosingDeliveries, the completeness in all material respects and to the best of Seller’sknowledge of the Space Leases delivered by Seller as part of the Pre-ClosingDeliveries, the completeness, truth and accuracy in all material respects and tothe best of Seller’s knowledge as ofClosing, of the representations and warranties of Seller contained in Section 10hereof, and the performance by Seller, to the extent possible by the date ofClosing, of the covenants contained in Section 10 hereof. It shall be acondition to Buyer’s obligation to close with respect in the Property that, at theClosing, Seller shall deliver to Buyer a Certificate that shall confirm, to thebest of Seller’s knowledge, the truth and accuracy in all material respects, asof Closing, of Seller’s representations contained in this Agreement, and the representationscontained in such certificate, as well as any continuing obligations of Sellerhereunder, shall survive the Closing for a period of twelve (12) months; and

 

(c)   That as of the date of closing: (i) neitherSeller, as landlord under the Space Leases, nor any tenant thereunder, shall bein material default under the terms of any Space Lease and (ii) and spacecurrently occupied by Petco and Marshalls and ninety-five percent (95%) of theremainder of Property gross leasable area being leased to tenants, excludingthe Marshalls and Petco spaces.

 

[SEE SIGNATURE BLOCKS ON NEXT PAGE]

 

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**IN WITNESS WHEREOF**, Seller and Buyer have executed this Agreement as of the day and yearfirst above written.

 

 
|           | **BUYER:**                                            |
|----------------|-------------------------------------------------------|
|           | **INLAND REAL****ESTATE** **ACQUISITIONS, INC.** |
|           |                                                  |
| **WITNESSES:** |                                                  |
|           |                                                  |
|           |                                                  | By: |   |
|           |                                                  |   | Name: |
|           |                                                  |   | Title: |
|           |                                                  |   | Date of Execution: |   |

 

 
|            | **SELLER:**                                                     |
|-----------------|-----------------------------------------------------------------|
|            | **KIMCO TAMPA, L.P.**                                           |
|            |                                                            |
|            | **By:**      **Kimco Tampa 470, Inc.** |
|            |                                                            |
|            |                                                            |
| **WITNESSES:**  |                                                            |
|            |                                                            |
| /s/ [ILLEGIBLE] |                                                            | By: | /s/ Daniel C. Slattery |
|            |                                                            |   | Name: | Daniel C. Slattery |   |
|            |                                                            |   | Title: | Executive Vice  President |   |
| /s/ [ILLEGIBLE] |                                                            |   | Date  of Execution: | 9/3/04 |
|                 |                                                                 |  |  |  |  |  |  |

 

 
|                                  | Escrow  Agent signs to confirm its  agreement with the provisions of  Section 3(A)(ii) hereof: |
|---------------------------------------|-----------------------------------------------------------------------------------------------------|
| ** **                            |                                                                                                |
| ** **                            |                                                                                                |
| **WITNESSES:**                        | **ESCROW AGENT:**                                                                                   |
| **CHICAGO TITLE & TRUST COMPANY** | ** **                                                                                          |
|                                  |                                                                                                |
|                                  |                                                                                                |
|                                  |                                                                                                | By: |   |
|                                  |                                                                                                |   | Name: | Nancy Castro |   |
|                                  |                                                                                                |   | Title: |   |   |
|                                  |                                                                                                |   | Date of Execution: |   |
|                                       |                                                                                                     |  |  |  |  |  |  |  |  |

 

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**IN WITNESS WHEREOF**,****Seller and Buyer have executed this Agreement as of the day and yearfirst above written.

 

 
|            | **BUYER:**                                            |
|-----------------|-------------------------------------------------------|
|            | **INLAND REAL****ESTATE** **ACQUISITIONS, INC.** |
|            |                                                  |
| **WITNESSES:**  |                                                  |
|            |                                                  |
| /s/ [ILLEGIBLE] |                                                  | By: | /s/ [ILLEGIBLE] |
|            |                                                  |   | Name: |
|            |                                                  |   | Title: SR VP |
| /s/ [ILLEGIBLE] |                                                  |   | Date of Execution: |   8/31/04 |

 

 
|           | **SELLER:**                                                     |
|----------------|-----------------------------------------------------------------|
|           | **KIMCO TAMPA, L.P.**                                           |
|           |                                                            |
|           | **By:**      **Kimco Tampa 470, Inc.** |
|           |                                                            |
|           |                                                            |
| **WITNESSES:** |                                                            |
|           |                                                            |
|           |                                                            | By: |   |
|           |                                                            |   | Name: |   |   |
|           |                                                            |   | Title: |   |   |
|           |                                                            |   | Date  of Execution: |   |
|                |                                                                 |  |  |  |  |  |  |

 

 
|                                  | Escrow  Agent signs to confirm its  agreement with the provisions of  Section 3(A)(ii) hereof: |
|---------------------------------------|-----------------------------------------------------------------------------------------------------|
| ** **                            |                                                                                                |
| ** **                            |                                                                                                |
| **WITNESSES:**                        | **ESCROW AGENT:**                                                                                   |
| **CHICAGO TITLE & TRUST COMPANY** | ** **                                                                                          |
|                                  |                                                                                                |
|                                  |                                                                                                |
|                                  |                                                                                                | By: |   |
|                                  |                                                                                                |   | Name: | Nancy Castro |   |
|                                  |                                                                                                |   | Title: |   |   |
|                                  |                                                                                                |   | Date of Execution: |   |
|                                       |                                                                                                     |  |  |  |  |  |  |  |  |

 

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